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2009 DIGILAW 1222 (PNJ)

Harbans Kaur v. Jagtar Singh

2009-07-22

VINOD K.SHARMA

body2009
JUDGMENT VINOD K. SHARMA, J. (oral) - This appeal is directed against the judgment and decree dated 13.10.1993 passed by the learned Additional District Judge, Hoshiarpur allowing the petition moved by the respondent/husband under section 13 of the Hindu Marriage Act (for short the Act) seeking a decree of divorce. 2. The respondent/husband brought a petition under section 13 of the Act seeking dissolution of marriage by a decree of divorce on the ground that after passing the decree of restitution of conjugal rights on 16.2.1991, there was no cohabitation between the parties which entitled the respondent/husband to a decree of divorce. On notice appellant/wife appeared and contested the claim of the respondent by stating that the wife/appellant stayed with the respondent/ husband as his wife and petition under section 9 of the Act for restitution of conjugal rights was decided ex parte in favour of the husband. It was claimed that the parties were residing together and therefore, the respondent/husband was not entitled to the decree of divorce. 3. On the pleadings of the parties, the following issues were framed:- 1. Whether there has been cohabitation between the parties after the passing of decree dated 16.2.1991 under section 9 of the Act. If not its effect? OPR 2. Relief. 4. In support of his case the respondent/husband appeared as PW 1 and made a statement that marriage between the parties had taken place in the year 1964 and the respondent/wife started living separately since 9.8.1988. Petition under section 9 of the Act for restitution of conjugal rights was filed and decree was passed in favour of the respondent/husband on 16.2.1991. Copy of the judgment was exhibited as Ex.A.1 and decree as Ex.A.2. The stand taken was that after the passing of decree the appellant/ wife never stayed with the respondent/husband. Execution was also filed to bring the appellant to matrimonial home. The appellant/wife appeared in the execution through her counsel but subsequently she chose not to appear in the execution. Evidence was also led to prove that the house of the respondent/husband was demolished in a bomb blast on 10.10.1988 in which his son lost his life. Due to demolition of the house the respondent started living in his village whereas the appellant/wife used to live near Officers Colony, Hoshiarpur in House No.461 Piplanwali with her sister. Subsequently, she shifted her residence. 5. Due to demolition of the house the respondent started living in his village whereas the appellant/wife used to live near Officers Colony, Hoshiarpur in House No.461 Piplanwali with her sister. Subsequently, she shifted her residence. 5. Voter list was also produced with respect to House No.783 as Annexure A.4, which showed that there was no vote in house No.783 and his name was included in the voter list of village in the year 1993. Voter list of the appellant/wife was also produced to show that she was living separately. Other evidence was also produced. 6. Respondent in her statement took a stand that she was working as teacher in Government School Masanian. She also admitted that she was not present at the time of bomb blast in the house as she had gone to her parental house. She also denied having appeared in execution application. Evidence was sought to be produced to show that the appellant/wife was living with the respondent at Mohalla Tibba Sahib, Hoshiarpur. 8. On appreciation of evidence on record learned matrimonial court held that it was proved on record that there was no cohabitation after passing of decree of conjugal rights and thus, decreed the petition for divorce. 9. Learned counsel appearing on behalf of the appellant has merely asserted the stand taken before the learned matrimonial court to contend that the decree of conjugal rights stood executed and that they continued living together at Hoshiarpur. 10. This stand of the learned counsel for the appellant cannot be accepted in view of the documentary and oral evidence on record, which duly proved that there was no cohabitation after passing of decree of conjugal rights. No fault, therefore, can be found with the judgment and decree passed by the learned Additional District Judge, Hoshiarpur. Consequently, this appeal is dismissed but with no order as to costs.