B.R.Tuli, J. - (1.) SMT . Gurmail Kaur filed a petition under section 13 of the Hindu Marriage Act (hereinafter called the Act) for the grant of a decree of divorce against her husband Ujjagar Singh. The marriage between the parties took place at Kheri (Ghogha) in April, 1957. They lived together as husband and wife at village Pannuan for two months whereafter they separated. Ujjagar Singh respondent filed a petition under section 9 of the Act for restitution of conjugal rights against the appellant which was decreed on January 30, 1962. The appellant filed an appeal against that decree in this Court which was dismissed on April 8, 1963. In para 4 of the petition, the ground for the decree of divorce is stated as under: The respondent filed a petition under section 9 of the Act and got a decree on 30th January, 1962, from this Hon'ble Court and the petitioner preferred an appeal in High Court of Punjab, Chandigarh; but the same was reflected on 8th April, 1963 Since then decree under section 9 of the Act has remained unsatisfied uptil now and the petitioner is residing at village Kheri (Ghoga) at the house of her father for about 8 years and never went to the house of respondent even after decree and nor any execution of the decree was taken out by the respondent. Petitioner does not want to go to the house of respondent as there is every apprehension of danger to life in the mind of the petitioner, as respondent has been cruel towards the petitioner during her stay with the respondent and the petitioner has not condoned the cruelty in any way.
(2.) FROM the allegations made in this para it is evident that the case of the appellant was that after the decree for restitution of conjugal rights, she did not go to the respondent at all. Later, an application was made in the trial Court for permission to amend the petition so as to allege that the appellant tried thrice to live with the respondent but the latter spurned her. The learned trial Court did not permit the amendment on the ground that the allegation sought to be substituted by amendment was contrary to the allegations made in the original petition and, I think, the learned trial Court acted rightly in disallowing the amendment. It was within the knowledge of the appellant whether she had gone to her husband after the decree for restitution of conjugal rights was passed. Her case in the petition was clearly that she never went to her husband after that decree and that decree remained unsatisfied till the filing of the petitioner under section 13 of the Act. She cannot now be allowed to say that she tried to persuade her husband to accept her as his wife but he refused. The second allegation in the petition for divorce is that the respondent treated her with cruelty which led her to believe that there was apprehension to her life and she could not live with the respondent. It may be noted that in the previous case relating to the restitution of conjugal rights, the appellant had set up the same story which was disbelieved by the learned trial Court as well as this Court in appeal, It was found in that case that the appellant had stayed just for a night at the house of the respondent immediately after the wedding and thereafter left the respondent without any reasonable excuse . On that ground, the decree for restitution of conjugal rights was passed in favour of the respondent. Moreover, the learned counsel for the appellant gave up the plea of cruelty by his statement made on the 21st September, 1965. The learned trial Court dismissed the petition under section 13 of the Act on the ground that the appellant could not be allowed to take advantage of her own default as it was upto her to comply with the decree for restitution of conjugal rights which she failed to do. The plea that the respondent did not take out execution of the decree and, therefore, was equally at fault, did not prevail with the trial Court. Against the decree passed by the learned trial Court, the appellant has filed the present appeal.
(3.) IT has been vehemently contended before me that the learned trial Court did not permit the appellant to prove all her allegations made in the petition but this submission has no force in view of the fact that she relied on the decree for restitution of conjugal rights and its non -satisfaction. This fact, which is an admitted one, has been considered by the learned trial Court. The second ground was of cruelty which was given up by her counsel Moreover, the plea, of cruelty related to the period prior to the application under section 9 of the Act and since she had not gone to her husband, the respondent, after the decree was passed in the restitution case, it cannot be said that the respondent was guilty of any cruelty after that decree. I, therefore, find that all the pleas raised by the appellant were considered by the learned trial Court and the appellant's grievance is not well -founded.;