M.C.JAIN, J. - (1.) THIS is an appeal under Section 18 of the Rajasthan High Court Ordinance, 1949, against the judgment of the learned Single Judge of this Court dated 28 -3 -1979 whereby the appellant's Civil Misc. Appeal No 118 of 1973 was dismissed and the judgment and decree of the learned District Judge, Jodhpur, dated 16 -f -1978 was maintained whereby The appellant's petition under Section 13 of the Hindu Marriage Act, i955 (hereinafter referred to as 'the Act',), for the grant of decree of divorce, was dismissed.
(2.) THE material facts may briefly be stated as under: The appellant Devisingh presented a petition under Section 13 of the Act with the allegations that the parties to the petition were married in April 1961 and a son was born out of the wedlock According to the petitioner the non -petitioner -respondent deserted the petitioner for the last 14 years. The relations between the parties had become strained. Civil and criminal litigations had en(sic)ued. thus, on the ground of desertion the petitioner sought a decree of divorce. The petition was resisted by the non -petitioner. It was averred that the non -petitioner had not withdrawn herself from the society of the petitioner without any reasonable excuse. The petitioner had treated the non -petitioner with cruelty, physical and otherwise and had misbehaved with her. The petition fur res(sic)itution of conjugal separation were dismissed and there had been litigations with regard to the maintenance and custody of the child and further there had been criminal litigations under Sections 500, 323, IPC, and 107, C1PC. A plea was also raised that the petition is barred by principle of res judicata in view of the dismissal or the petitioner's applications for restitution of conjugal rights and for judicial separation on 29 9.68 and 9 -5 1972 Necessary issues were framed and after trial of the petition the same was dismissed by the learned District Judge on 16 8 -1978 Issue No. 1 relating to with drawal of the non petitioner from the society of the petitioner without any reasonsable excuse since 1964, was decided in favour of the non -petitioner and issue relating to res judicata was also found in favour of the non -petitioner. Dis -satisfied with the judgment and decree of the learned District Judge the husband -petitioner preferred an appeal before this Court The same was dismissod by the learned Single Judge on 28 -3 -1979. The Seamed District Judge The learned Single Judge found that it has not been established that the wife has been living separate from the husband without reasonable excuse. It was also found by the learned Single Judge that there is no cogent and convincing evidence on record to hold that the petitioner had made bonafide and reasonable efforts by removing all apprehension of his wife and by creating such atmosphere, so as to facilitate the return of the wife to the materimonial home. Consequently, the issue relating to res judicate was also found in favour of the non petitioner by the learned Single Judge for the reason that new facts and circumstances have not come into existence. Dis satisfied with the judgment and decree of the learned Single Judge the present appeal has been preferred.
(3.) BEFORE hearing of the case at the time of admission an effort was made by us for reconciliation, but looking to the past relations between the parties, it appears that reconciliation is not possible and our effort to bring about reconciliation tailed, Consequently, we heard the learned Counsel for parties5. On behalf of the appellant Shri M.L. Kala, veher(sic)ently urged that the respondent had been living separately since 1964 and in view of the relations between the parties the court should have granted a decree for judicial separation under Section 13A of the Act, as Section 13A provides for an alternative relief of a decree for judicial separation in divorce proceedings, when the court considers it just to do so having regard to the circumstances of the case. Shri Kala urged that the present is a fit case for exercising of the discretion vested in the court under Section 13A of the Act.;