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Gulab Kaur Vs. Gurdev Singh Rattan Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 3 (M) of 1962
Judge
Reported inAIR1963P& H493
ActsHindu Marriage Act, 1955 - Sections 13(1)
AppellantGulab Kaur
RespondentGurdev Singh Rattan Singh
Appellant Advocate H.R. Aggarwal, Adv.
Respondent Advocate S.L. Ahluwalia, Adv.
DispositionAppeal dismissed
Excerpt:
.....on a petitionpresented by either the husband or the wife, be dissolvedby a decree of divorce on the ground that the other party- (ix) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree......1955. there is no dispute on facts. the appellant suffered an ex parte decree for restitution of conjugal rights. that decree was never executed and after the lapse of two years, the present petition for divorce was filed under section 13(1)(ix) of the act. the petition was opposed mainly on the grounds that the ex parte decree for restitution of conjugal rights was obtained by fraud, and that in any case the decree-holder had to seek its compliance and as no compliance was sought, it cannot be held that there has been no compliance with the decree. it is true that no steps were ever taken to execute the decree for restitution of conjugal rights. no arguments have been addressed on the first ground which was found against the appellant. 2. so far as the second ground is concerned i.....
Judgment:

D.K. Mahajan, J.

1. This appeal is directed against the decision of the Subordinate Judge 1st Class Bhatinda dissolving the appellant's marriage with the respondent under Section 13(1) (ix) of the Hindu Marriage Act, 1955. There is no dispute on facts. The appellant suffered an ex parte decree for restitution of conjugal rights. That decree was never executed and after the lapse of two years, the present petition for divorce was filed under Section 13(1)(ix) of the Act. The petition was opposed mainly on the grounds that the ex parte decree for restitution of conjugal rights was obtained by fraud, and that in any case the decree-holder had to seek its compliance and as no compliance was sought, it cannot be held that there has been no compliance with the decree. It is true that no steps were ever taken to execute the decree for restitution of conjugal rights. No arguments have been addressed on the first ground which was found against the appellant.

2. So far as the second ground is concerned I have to proceed on the basis that there is a decree for restitution of conjugal rights against the appellant which has not been executed so far. The argument of the learned counsel for the appellant is that as the decree has not been executed nor been an oral demand for its compliance made therefore it cannot be said that there has been a failure of compliance with the decree for a period of two years and, thus the respondent is not entitled to a decree for divorce. I an unable to agree with this contention. Clause (ix) of Sub-section (1) of Section 13 of the Act reads thus:

'13. (1) Any marriage solemnised, whether before oralter the commencement of this Act, may, on a petitionpresented by either the husband or the wife, be dissolvedby a decree of divorce on the ground that the other party-

'***** (ix) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree.

As I read this clause I cannot import the construction which the learned counsel for the appellants wants me to place on this provision. The compliance has to be by the judgment-debtor. The decree-bolder does not come in the picture at all. Therefore, the argument that the decree-holder had to execute the decree or to otherwise seek its compliance is untenable. This construction derives further support from Clause (viii) of Section 13(1) of the Act, which reads thus:

'13(1)(viii) has not resumed cohabitation for a space of two years or upwards after the passing of a decree for judicial separation against that party; or'

The obligation under this provision is on the judgment-debtor. I cannot conceive that the Legislature was trying to put different standards with regard to a decree for judicial separation and a decree for restitution of conjugal rights. In this view of the matter, there is no force in this appeal. The same fails and is dismissed, but there will be no order as to costs.


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