I.D. Dua, J. - (1.) THIS appeal is directed against the order of a Subordinate Judge, 1st Class, Malerkotla dismissing the application of Gurcharan Singh Appellant for restitution of conjugal nigh is under Section 9 of the Hindu Marriage Act against I his wife Smt. Waryam Kaur.
(2.) IN June 1954 the parties gut married, and it is admitted before me that a son was burn out of this wedlock who is now about 21/2 years old. It is also admitted that on 16 -7 -1957 the lady applied for maintenance allowance against lien husband under Section 488, Code of Criminal Procedure It appears that an undated notice was sent by the husband through his counsel Shri Khem Chand to Smt. Waryarn Kaur asking her to come and live with him. From the post -office cal, however, the trial Court has observed that perhaps it was sent on 17 -7 -1957, which is one day after the institution of the application under Section 488, Code of Criminal Procedure. The present petition was filed on 9 -10 -1957. In this petition it is asserted that Smt. Waryam Kaur without reasonable cause withdrawn from the Petitioner's society about three years earlier, but the cause of action finally accrued about nine months "before the institution of the petition when she finally refused to come in spite of his requests and efforts to get her back in house. This petition has been resisted' by the lady on grounds inter alia that she was ill -treated by her husband and his relatives and because of this cruelty, her lather had brought her to" his own house with the help of respectable persons, she has further pleaded that the Petitioner had falsely accused her of adultery and that 110 steps had been taken by her husband to bring her to his house, except one application before the Nagar Panchayat Sarod, which, 'according to her, was not bona fide. The present petition has been alleged to have been filed as a counterblast to the maintenance proceedings initiated by her. On these grounds, the lady has claimed that the application for restitution of conjugal rights deserves to be dismissed. Three issues were frame, the first one dealing with the maintainability of the petition the second one with the maltreatment of the lady, and the accusation of adultery against her; and the third one deals with the relief to be granted. The petition was held to be maintainable after amendment by which the application was made to conform with the rules framed under the Hindu Marriage Act. Under issue No. 2 the Court discussed all the points which arise for consideration and came to the following conclusions: 1. That the Petitioner has been guilty of inordinate delay and negligence in bringing the present action for restitution of conjugal rights; 2. that the husband has been guilty of desertion and the wile had been made to leave her marital home. Tin's desertion has continued from the time when the lady had been taken away from the husband's house with the help of some members' of the Panchayat; 3. that the present petition is not bona fide and that the husband had never cared to look after his wife and that he did not care even to enquire about the birth of his son; he only filed tho present petition alter the lady had taken proceedings for relief under Section 488, Code of Criminal Procedure and.
(3.) THAT the husband actually doubted the parentage of the child born to Smt. Waryam Kaur, which in effect amounted to attribution of immorality to the wife. On all these grounds the learned Subordinate Judge felt that the Petitioner husband could not succeed. 4. An appeal was preferred to this Court by the husband on 24 -10 -1.958 and was admitted by a Division Bench on the 7th of November. On the 31st of December 1958 an application was filed in this Court (Civil Miscellaneous No. GO of 1959 in F.A.O. No. J 85 of 1958) by Smt. Waryam Kaur under Section 524 of the Hindu Marriage Act stating that an order awarding a sum of Rs. 15/ - per month by way of maintenance had been passed under Section 488, Code of Criminal Procedure, in her favour against Gurcharan Singh, but she had not till then been paid a single penny with the result that she was in great financial difficulties; it was further stated that the trial Court under Section 24 of the Hindu Marriage Act had also awarded to her a sum of Rs. 45/ - as expenses of the proceedings. She claimed in this Court a sum of Rs. 350/ - by way of expenses for the proceedings and a sum of Rs. 50/ - per month as maintenance pendente lite from the date of the filing of the appeal up to the date of final decision. Notice of this application to the Appellant was ordered by Mehar Singh J. on 13 -1 -1959, and on 27 -1 -1959 in the presence of the counsel for both the parties Harbans Singh J. ordered that the amount of maintenance fixed under Section 488, Code of Criminal Procedure, beginning from 25 -7 -1958 up to 25 -1 -1959 should be paid within three weeks and thereafter, for the month beginning 25 -1 -1959 till 25 -2 -1959 should be paid on or before 10 -3 -1959 and for the next month on, 10 -4 -1959 and so on till the decision of the present appeal. The Appellant was further directed to pay a sum of Rs. 120/ - to the wile towards expenses of Proceedings in the present appeal, on or before 1.3.1959. It appears that no appeal was preferred against tins order of the learned Single judge with the result that it must be deemed to have become final, and binding on the parties. This order having not been complied with, on 26 -3 -1959 another application was filed on behalf of Smt. Waryam Kaur under Section 151, Code of Civil Procedure (Civil Miscellaneous No. 700 of 1959 in F.A.C. No. 185 of 1958), stating all the facts and praying that the amount ordered to be paid on 27 -1 -1959 should be got paid within a time to be fixed by this Court, failing which this appeal may be .dismissed with costs. On this application notice was directed to be issued on the 23rd of April 1959 by Harbans Singh J., but on 4 -5 -1959 Grover J. in the presence of counsel for the parties passed the following order: Let the Court below execute the order of Harbans Singh J. passed on 27 -1 -1959.;