SHARMA, J. - (1.) TWO bank employees one serving at Ratlam (MP) and another in Ajmer (Rajasthan) came close together and their marriage was solemnized on May 11, 1993 at Ratlam according to Hindu rites. After marriage the wife (respondent) lived in the house of her husband (appellant) in Ajmer for a period of four months. Since she was a working woman she had to go back to Ratlam. The distance between the two gave rise to the dispute and the husband filed a petition under section 9 of the Hindu Marriage Act,1955 (for short `act') for restitution of conjugal rights. The litigation ended on March 4, 1998. Both the parties agreed to get themselves transfer to Jodhpur so that they could reside together. Till the transfer of wife, the husband agreed to visit Ratlam frequently.
(2.) IT appears that wife did not honour the compromise decree and the husband had to file the petition under section 13 of the Act in the Family Court Ajmer on April 16, 1999 i. e. after one year of the decree under section 9 of the Act. IT was inter alia pleaded in the petition that the husband had gone Ratlam many a times pursuant to the decree, but the wife had insulted him and refused to reside with him. Since after passing of the decree for restitution of conjugal rights, the parties did not reside together and have no physical relations, a decree of divorce be passed. The wife appeared in the Family Court and filed reply to the petition denying the allegations levelled against her. She stated that from her marriage with the appellant husband a son named Nitin was born who remained throughout in her guardianship. She stated that the husband himself left her at Ratlam on December 18, 1995 and thereafter he did not come to take her and threatened to divorce her. He threatened to enter into second marriage, therefore she was forced to file the suit against the husband wherein an injunction was issued on September 2, 1997 restraining the husband from entering into second marriage. Thereafter on the basis of compromise on March 4, 1998 the decree of restitution of conjugal rights was passed. But when he went to Ratlam to take her he again threatened her and said that he stayed in hotel just to defame her about her character. In such circumstances the wife stated that she was ready to live with the husband if he was interested to live with her at Ratlam. On May 15, 2000 the wife did not appear in the court and she was proceeded ex-parte. She thereafter moved application for setting aside the ex-parte proceeding, but the application was also dismissed. When attempt for reconciliation between the parties failed the court recorded the statement of the husband wherein he corroborated the facts stated in the petition. Learned Family Court despite the uncontroverted statement of husband dismissed the petition on April 25, 2001. The said decree is under challenge in the instant appeal.
(3.) WE have heard the submissions advanced before us. Learned counsel for the respondent wife could not explain as to what were the reasons for non appearance of the wife in the Family Court. Learned counsel for the appellant however raised following points for our consideration:- (i) After obtaining the decree for restitution of conjugal rights in view of the compromise the appellant went to Ratlam to take his wife but she refused to join the appellant. In compliance of the decree the respondent did not move the application for her transfer, thus the respondent failed to comply with the condition of the compromise. (ii) The Family Court has given the reasoning that appellant did not file documents regarding the case pending before the court at Ratlam, while the appellant submitted Ex. 2 and Ex. 3, which disclose the fact of the case pending against the appellant by the respondent. (iii) The learned court below has not considered that the respondent herself left the appellant. This fact is fortified from the material on record which shows that wife did not contest the case and remained absent even after filing the application for setting aside the ex-parte order. A bare perusal of section 13 (1a) of the Act demonstrates that in addition to grounds provided for in Section 13 (1) either party to marriage may also present a petition for the dissolution of marriage by a decree of divorce on the grounds enumerated in clause (i) and (ii ). Under clause (ii) a decree of divorce can be passed if there has been no restitution of conjugal rights between the parties to the marriage for a period of one year or upwards after the passing of the decree for restitution of conjugal rights in proceeding to which they were parties. This section further makes clear that such petition can be made even by the party against whom a decree of restitution of conjugal rights has been passed and which has been found guilty in the earlier proceeding for having withdrawn from the society of other aggrieved party without reasonable excuse. Evidently in the instant case the respondent wife did not honour the decree passed under section 9 of the Act and since there has been no restitution of conjugal rights between the appellant and respondent for a period of one year after passing of the decree for restitution of conjugal rights, the husband therefore in view of section 13 (1a) of the Act, was entitled to a decree of divorce. We see no reason to disbelieve the uncontroverted statement of the appellant husband. Learned Family Court has committed illegality in not considering Section 13 (1a) of the Act in right perspective. ;