Tibrewal, J. - (1.) -The wife-Smt. Santosh has filed this appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter to be referred to as the Act) being aggrieved by the judgment and decree of divorce, dated, April 29,1997 passed by the learned District Judge. Jalore, under Section 13(1A) of the Act on the ground of non-compliance of the decree of restitution of conjugal rights for a period of more than one year.
(2.) The factual position does not appear to be in dispute. The marriage between the parties was solemnized according to Hindu Custom and rites in the year 1970 and they lived at Jalore. From their wedlock there is no issue. In the year 1980. the wife went to her parents' house at Bikaner and when she did not return to her matrimonial home, the husband-respondent filed a petition in the court of District Judge, Jalore for restitution of conjugal rights u/s. 9 alleging that the wife had fully deserted him without any lawful execuse. This petition was filed on April 27. 1987 and a decree for restitution of conjugal rights, was passed on 16.2.88. Even after passing of the aforesaid decree for the wife did not join the husband and when there was non-compliance of the decree for restitution of conjugal rights for a period of more than on year, the husband filed the petition on 17.5.89 for dissolution of marriage. The petition . was contested by the appellant-wife before the District Judge. In her reply to the petition for dissolution of marriage, it was pleaded, inter-alia, that the respondent's behaviour with her had been inhuman as he used to beat her and treated her with cruelty which compelled her to leave matrimonial home in January 1978 to live with her parents at Bikaner. She also stated that she was always willing to live with the husband, but still he performed a second marriage on 5.8.81 with one Smt. Nirmala daughter of Dev Kishan Acharya of Barmer. It was, then, pleaded that she had filed a criminal complaint against the respondent at Bikaner for committing offences u/ss. 494,114 and 120-B PC wherein he was convicted and punished. For the decree of restitution of conjugal rights it stated to have been obtained by the respondent exparte after getting service effected on her in a wrong manner, though it was admitted that there has been no resumption of marital relations after passing of the decree.
(3.) On pleadings of the parties', following six issues were framed by the trial court: 1. Whether petitioner Narsingh Lal (husband) filed a suit for restitution of conjugal rights against the wife Smt. Santosh and a decree of restitution of conjugal rights was passed therein? 2. Whether after passing of decree, the wife did not resume marital relations with the husband for more than one year on account of which he is entitled to get a decree of divorce by dissolution of marriage? 3. Whether behaviour of the husband was in-humane with the wife as he used to beat her and commit other cruelties on her; gave her beating in the year 1977 which compelled her to leave her matrimoniaI home in January 1978? 4. Whether on 5.8.81 the petitioner performed second marriage with one Nirmala daughter of Dev Kishan Acharya of Barmer. If so, what shall be the effect? 5.Whether the wife was not bound by the decree of restitution of conjugal rights passed against her? 6.What should be the relief?;