S.K.MAL LODHA, J. - (1.) THIS is an appeal under Section 28 of the Hindu Marriage Act (No. XXV of 1955) (for short the Act hereafter) by the husband, who was the petitioner, against the judgment and decree of the Additional District Judge, Sriganganagar dated March 22, 1979, by which he dismissed the husband's petition under Section 13 of the Act.
(2.) THE marriage between the parties was solemnised according to the Hindu rites 12 years before the date of the presentation of the petition which was filed on January 13, 1977. The parties lived together as husband and wife for 10 years. Out of this wedlock, five children were born, four sons and one daughter. Two of the sons died. The remaining sons we are living with the wife while the daughter is living with the husband. It has been stated that in the months of November December, 1974, when the wife was to deliver 5th child, the wife's brother Maniram came and told him to send her. The wife was sent with him and since then, she has not returned to his house. In other words, the case of the husband is that the wife -respondent had withdrawn from his society for the last four years and since then, she has not returned to his house and living with her parents. The wife is said to have intiated proceedings for the grant of maintenance under Section 125, Cr. PC on December 12, 1974 on the ground that she has been turned out from the house as her parents had not given good dowry. The husband is said to have gone to bring her but she refused to come. The application filed under Section 125, Cr. PC. was contested by the husband. The Judicial Magistrate, by his order dated March 4, 1976, fixed Rs. 40/ - per month as the amount of maintenance. The wife preferred a revision and the learned Additional District Judge enhanced the amount from Rs. 40/ - p.m. to Rs. 80/ - p. m. Thereafter, proceedings were initiated for the recovery of the arrears of maintenance. The averments have also been made that the husband had made the efforts to bring the wife, but she, without any reasonable cause, withdrawn herself from the society of the husband. The husband has filed the petition under Section 13 of the Act praying for the dissolution of the marriage by a decree of divorce on the ground of desertion by the wife for a continuous period of not less than two years immediately preceding the date of the presentation of the petition. The wife contested the petition by filing a reply on May 4, 1978 Her case is that the husband had intentionally turned out the wife from the house some four years back and has contracted a second marriage with one Smt. Muni from whom the husband has begotten a son. She has also submitted a counter claim under Section 23A of the Act for the relief under Section 11 of the Act and has prayed that it may be declared that the husband's marriage with Smt. Muni was void. The learned District Judge made efforts for reconciliation between the parties, but they failed. The learned District Judge framed issues, which when translated into English, read as under : (1) Whether the non -petitioner (wife has deserted the husband for more than two years against his wish and on this basis, the petitioner (husband) is entitled to obtain a decree under Section 13(1)(ib) of the Hindu Marriage Act, 1955. (2) Whether the petitioner (husband) has contracted a second marriage with Mst. Munni, daughter of Bhadar resident of Maujgarh ? (3) Whether the non -petitioner (wife) is entitled to get the marriage between her husband and Munni, declared void ? (4) To what relief, the parties are entitled ? The husband examined himself as PW 1 and Shree Lal PW 2 The wife examined herself as DW 1, Maniram DW 2, Laduram DW 3 and Surjaram DW 4. Issue No. 1 was decided against the husband. So far as issues No. 2 and 3 are concerned, the learned Additional District Judge was of the opinion that the declaration sought by the wife was uncalled for. In view of the finding on issue No. 1, the learned Additional District Judge dismissed the petition. Hence this appeal by the husband.
(3.) I have heard Mr. R.R. Vyas for the appellant and Mr. M.L. Garg for the respondent and have gone through the record of the case.;