P.C.Jain, J. - (1.) BRIEFLY the facts of this case are as follows: 1. Smt. Jaswant Kaur appellant filed a petition under section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for the dissolution of her marriage said to have been solemnized at Ludhiuna with respondent No. 1 by mutual consent on 4th February, 1953. It is averred that at the time of marriage, respondent No. 1 had mentioned that he was unmarried and had no living wife. In January, 1961, Smt. Bhagwant Kaur, respondent No. 2, came to live with respondent No. 1 and it was then that the appellant learnt that her husband, respondent No. 1, was already married to Smt. Bhawgant Kaur, respondent No.2 and had three children from their wedlock. Hence the present petition for divorce was presented on 26th March, 1964.
(2.) THE respondents contested the petition and inter alia pleaded that the petitioner at the time of her marriage was in very much know of their marriage, that because of knowledge the petitioner was estopped from filing the petition and that the petitioner -appellant was not entitled to any relief as she had condoned the alleged illegality. On the pleadings of the parties the following issues were framed: 1. Whether the petition has not been rightly and correctly verified? If so, to what effect? 2. Whether the petitioner has condoned the first marriage of respondent No. 1 ? If so, to what effect? 2A. Whether the petitioner is estopped by act or conduct from filing the present petition ? Relief. 3. The trial Court decided issues Nos. 1 and 2 in favour of the appellant. On issue No. 2A it was held that the petitioner (appellant) as estopped by her conduct from now claiming dissolution of marriage by a decree of divorce. Under the issue of relief, the trial Court further field that no relief could be granted to the petitioner on two grounds, (sic) that marriage as contemplated by the Act was not proved between the parties and (ii) that the petition was presented after considerable delay which remains unexplained. Accordingly the petition was dismissed leaving the parties to bear their own costs. Feeling aggrieved from the order of the trial Court, the present first appeal has been filed by Smt. Jaswant Kaur.
(3.) MR . M.S. Jain, learned counsel appearing on behalf of the appellant contended that the finding of the learned Subordinate Judge on issue No. 2A was not maintainable. According to the learned counsel, the plea of estoppel was not available to the respondents. In order to obtain dissolution of marriage by a decree of divorce under section 13 (2)(i), the only requirement which the petitioner (appellant) had to prove was that at the time of the presentation of the petition, the other wife should be alive which fact admittedly has been proved in the instant case. Even on merits, the learned counsel contended that the onus of issue No. 2A was on the respondents and they had miserably failed to discharge that onus.;