S.K. Mal Lodha, J. - (1.) This is an appeal under Section 28 of the Hindu Marriage Act, 1955 (No. XXV of 1955) by the husband who was non-petitioner before the District Judge against the judgment dated Aug. 13, 1978 by which a decree for restitution of conjugal rights was passed in favour of the wife-respondent and against him in a petition filed under Section 9 of the Act on July 12, 1977. In this appeal, the appellant and the respondent shall be referred to as 'the husband' and 'the wife' respectively. The mother of the husband was also impleaded as non-petitioner No. 2 but her name was deleted by the learned District Judge vide his order dated November 24, 1977.
(2.) It was alleged by the wife in her petition under Section 9 of the Act that her marriage with the husband was held according to Hindu rites on April 29, 1967 in Bhilwara; that the mother of the husband is a greedy lady and she often used to tell the wife that her father has not given anything at the time of marriage, and that the dowry which was given to her was inadequate. It is further alleged that the husband, because of this, started quarrelling with her and he and his mother did not give sufficient food and clothes to her and beat her several times. It was averred in para 4 of the petition that the wife tolerated the misbehaviour for some time but the husband and his mother sent the wife with her father-in-law and he left her at Bhilwara on Falgunu Sudi 7, Samvat 2027 (March 3, 1971); that her clothes and the articles of dowry were kept at Ajmer and at that time she had on her body a Sari. The wife has further stated that she sent her relations at the house of the husband several times asking him that he should keep her with him as being a Hindu woman, she has to pass her whole life with the husband. Despite this, the husband did not accede to her request. In these circumstances, it was prayed that a decree for restitution of conjugal rights be passed in favour of the wife and against the husband. This petition was resisted by the husband by filing a reply on August 28, 1977. According to the husband, the wife left her matrimonial home to live with her parents at Bhilwara on March 3, 1971 and since then, she has been living with her parents there. The husband took, amongst others, the following additional pleas.- 1.that the wife has deserted the husband with an intention to bring cohabitation to an end. 2. that there has been unnecessary and improper delay in instituting the proceedings for restitution of conjugal rights and as such, the petition is not maintainable and is liable to be dismissed, 3. that the petition is mala fide and the wife is taking advantage of her own wrong for the purpose of the relief which she has prayed in the petition and, 4. that the husband has filed a petition for dissolution of marriage against the wife on the ground of desertion and that is pending in the court of the District Judge, Ajmer. It is not necessary to refer to the reply of the mother of the husband which was filed on October 28, 1977.
(3.) The learned District Judge framed three issues inclusive of relief on Nov. 24, 1977 which, when translated into English, read as under,- 1. Whether non-petitioner No. 1 (husband) has withdrawn from the society of the petitioner (wife) without just and reasonable cause ? 2. Whether the petition is unnecessarily delayed ? 3. Relief. In support of the petition, the wife examined herself as AW 1 and AW 2 Kaluram, AW 3 Harishchandra, AW 4 Fatehchand (father of the petitioner), AW 5 Birdichand and AW 6 Shyam-sunder. The husband examined himself as NAW 1 and NAW 2 Madanlal, NAW 3 Laxman and NAW 4 Sohanlal. The learned District Judge, by his order dated August 30, 1978, accepted the petition and passed a decree in favour of the wife and against the husband for restitution of coniugal rights.;