1. This is appeal by Smt. Shakuntla Tandan against her husband Sardari Lal Tandan directed against the judgment of Shri Kartar Singh, District Judge, Kapurthala, dated April 1, 1970 allowing petition under Section 13(1-A)(ii) of the Hindu Marriage Act, 1955 for dissolution of Marriage between the two by a decree of divorce.
2. Facts leading to the appeal are as under:
The husband and wife were married on November 29, 1962 at Ambala. After the marriage, the parties lived together at Phagwara. A petition under Section 9 of the Hindu Marriage Act was filed by the husband against the wife for restitution of conjugal rights. A decree was passed on January 2, 1967. The wife being aggrieved of that decree filed an appeal in the High Court. That appeal was dismissed by a single Judge on August 4, 1969 and the decree of the lower Court was confirmed. The matter was taken by the wife in letters patent appeal. That too was rejected in limine. The present petition was filed by the husband during the pendency of the appeal in the High Court on April 19, 1969. In that petition, the husband pleaded that decree for restitution of conjugal rights having been passed on January 2, 1967 and having not been cared to be complied with by the wife, the husband was entitled to decree for divorce. In reply, the wife admitted the existence of marriage between the parties as well as the factum of decree for restitution of conjugal rights having been passed against her. She, however, pleaded that as appeal from decree for restitution of conjugal rights had been pending in the High Court, she could not comply with that decree and the petition for dissolution of marriage as filed by the husband was premature. The above controversy between the parties led to the following issues:--
(1) Whether the application of the petitioner is not premature? Whether letters petent appeal in connection with the decree for restitution of conjugal rights obtained by the petitioner is pending?
(2) Whether the respondent has failed to comply with the decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree?
(3) Whether the petition has not been presented by the petitioner in collusion with the respondent?
(4) Whether the petition has been presented by the petitioner without any reasonable and improper delay?
(5) Whether the petitioner is entitled to decree for dissolution of marriage by a decree of divorce?
3. Shri Puran Chand appearing on behalf of the wife has confined his arguments to issue No. 2. He did not press any other issue. He argued that according to issue No. 2, it is the husband, who had to prove that the wife had failed to comply with the decree for restitution of conjugal rights for a period of two years or more. He urged that no reasonable opportunity had been given to the wife to lead evidence in rebuttal under this issue. He said that she summoned on February 26, 1970 two witnesses, namely Dharam Parkash and Mohinder Parkash for their being produced on March 28, 1970, the next date of hearing fixed in the case. It is stated that according to the endorsements made on the back of the summonses issued to these witnesses, the witnesses were not available on the addresses given by the wife and consequently they could not be served. He submitted that it was for no fault of the wife that the evidence of these two witnesses could not be recorded on March 28, 1970, when the petition filed on behalf of the husband came up for hearing.
Shri. G. R. Majithia appearing on behalf of the husband contended that in the face of paragraph 5 of the written statement filed on behalf of the wife, there was no need for any witnesses being summoned by the wife inasmuch as in that para, she conceded that she had not complied with the decree for restitution of conjugal rights passed against her in favour of her husband because of the pendency of appeal in the High Court. According to the content of that para, she admitted that she had not cared to satisfy the decree for restitution of conjugal rights passed against her. In the face of that admission, the question of any evidence being led by her contrary to that admission does not arise. Even on the date of hearing fixed in the case for March 28, 1969, she was not present in Court. No evidence could be given by a party against an admission incorporated in the pleading of that party. No doubt, the burden of proof lay upon the husband to prove the fact that during the period of two years commencing from the date of decree, the wife had not cared to comply with that decree but if it is admitted by the wife that she as a fact did not care to comply with the decree for restitution of conjugal rights passed against her there is no need of any evidence being led by the husband. The admission of the wife that she did not comply with the decree is a good substitute for evidence to be led by the husband to prove that fact. The husband himself went into the witness box and specifically stated that in spite of approach made several times by him to his wife to come back to his house and to live with him and to carry into effect the decree for restitution of conjugal rights passed against her by the Court, she declined to comply with that decree. On the basis of the admission made by the wife and the statement made by the husband. I am satisfied that issue No. 2 pertaining to the failure on the part of the wife to comply with the decree for restitution of conjugal rights passed against her has been established in favour of the husband. As the wife admitted that she had not complied with the decree for restitution of conjugal rights because of the untenable ground of pendency of appeal in the High Court and no further evidence can be adduced to prove contrary to that admission the fact that she did try to comply with the decree, no useful purpose will be served in remanding the case for the evidence of the witnesses sought to be summoned by the wife being recorded by the trial Court.
4. For the reasons recorded above, I disallow the appeal and uphold the judgment of the trial Court. There will be no order as to costs.
5. Appeal dismissed.