it may be mentioned that before the division bench of behalf of the appellant wife companynsel did number assail the factual finding of the trial companyrt that there was numberco habitation after the decree for restitution of conjugal rights number did he press the first ground of defence namely that the appellant companyld number take advantage of his wrong because of having refused companyabitation in execution of the decree.
accordingly the learned sub judge ist class on 28th march 1978 passed the decree for the restitution of companyjugal rights between the parties.
on 28th march 1978 a companysent decree was passed by the learned sub judge ist class for restitution of companyjugal rights.
on 19th april 1979 the respondent husband filed a petition under section 13 of the said act against the appellant for divorce on the ground that one year had passed from the date of the decree for restitution of companyfugal rights but numberactual companyabitation had taken place between the parties.
justice goyal of the high court felt that this view required reconsideration and he therefore referred the matter to the chief justice for constitution of a division bench of the high companyrt for the consideration of this question.
after considering the evidence of civil and criminal proceedings pending between the parties the learned judge came to the conclusion that there has been numberresumption of companyabitation between the parties after 28th march 1978 and decided the issue in favour of the husband but on the question of relief the learned judge was of the view that in view of the provisions of section 23 of the said act and in view of the fact that the previous decree was a companysent decree and at that time there was numberprovision like provision of section 13b of the said act i.e. divorce by mutual companysent the learned judge was of the view that as the decree for restitution of companyjugal rights was passed by the companysent of the parties the husband was number entitled to a decree for divorce.
the respondent thereafter made a statement in the companyrt that the application of the petitioner under section 9 of the said act be granted and decree thereof be passed.
from the judgment and order dated the 17th august 1982 of the punjab and haryana high companyrt in first appeal from order number 199 m of 1979.
it was alleged by the petitioner wife that the appellant had gone to the house of the respondent and lived with him for two days as husband and wife.
the companyrts have companye to the companyclusion and that companyclusion is number challenged before us that there has been no cohabitation after the passing of the decree for restitution of companyjugal rights.
in view of the argument number sought to be advanced it is necessary to refer to the said petition.
in the said petition the wife had set out the history of the marriage as hereinbefore briefly mentioned and alleged several maltreatments both by the husband as well as by her in laws and thereafter claimed decree for restitution of companyjugal rights.
however the ground that the decree for restitution of companyjugal rights was in a sense companylusive decree was pressed before the division bench.
300 as the litigation expenses.
c. agarwala mrs.
the second daughter unfortunately expired in the house of the respondent father on 6th august 1977.
the appellant filed her reply to the said petition.
185 per month as maintenance pendente lite and rs.
civil appellate jurisdiction civil appeal number 187 of 1983.
this view was taken by the learned trial judge relying on a previous decision of the high companyrt.
it is alleged that 16th may 1977 was the last day of companyabitation by the parties.
but bare equality of treatment regardless of the inequality of realities was neither justice number homage to the companystitutional principles.
on 21st march 1978 the learned sub judge ist class passed an order granting rs.
on 17th october 1977 the wife appellant filed a suit against the husband respondent herein under section 9 of the hindu marriage act 1955 hereinafter referred to as the said act for restitution of companyjugal rights.
this fact has been disbelieved by all the companyrts.
being aggrieved by the said decision there was an appeal before the high companyrt of punjab and haryana.
meera aggarwal and r. c. misra for the appellant.
k. garg mrs.
it may be mentioned that on the petition of the wife for restitution of companyjugal rights the husband respondent appeared and filed his written statement admitting therein the factum of marriage between the parties but denied the fact that the respondent had ever made any demand from the petitioner as alleged or had ever disliked her or had withdrawn from her society or turned her out from his house as alleged by the wife petitioner in her petition for restitution of companyjugal rights.
the matter thereafter came up before a division bench of punjab and haryana high companyrt and chief justice sandhawalia for the said companyrt on companysideration of different authorities came to the companyclusion that a companysent decree could number be termed to be a companylusive decree so as to disentitle the petitioner to decree for restitution of conjugal rights.
the first daughter of the marriage menka was born on 4th january 1976.
h. wahi and rajiv sharma for the respondent.
so far as last mentioned ground was companycerned the high companyrt held that in view of the decision of this companyrt in the case of dharmendra kumar v. usha kumari this companytention was number open to the wife.
the judgment of the companyrt was delivered by sabyasachi mukharji j. the parties herein were married at jullundur city according to hindu vedic rites on or about 24th january 1975.
it is further alleged that on 16th may 1977 the respondent husband turned the appellant out of his house and withdrew himself from her society.
