P.N. Shinghal, J.
1. Before hearing the learned Counsel for the parties in this case I made an effort in Chambers, for a compromise between the parties. I am sorry to say that it has not been successful.
2. The appellant and the respondent were admittedly married on June 10, 1951. The appellant ultimately obtained a decree for restitution of conjugal rights on February 11, 1961. He presented the present petition under Section 13(IA)(ii) of the Hindu Marriage Act on April 21, 1965 for dissolution of the marriage by a decree for divorce on the ground that there was no restitution of conjugal rights as between the parties to the marriage for a period of two years or upwards after the passing of the decree. The respondent decided the contention of the petitioner in this respect and pleaded that she had lived with him as his wife and was prepared to live with him. She specifically mentioned, in paragraph 6(b) of her reply, the periods of time during which she and the petitioner lived and cohabited together. The learned District Judge therefore framed an issue on the question whether the respondent had not resumed cohabitation for a continuous period of two years and upwards after the passing of the decree for the restitution of conjugal rights? He found the issue against the petitioner and dismissed the petition for divorce on January 30, 1967. It is against that decision that the petitioner has come to this Court in appeal.
3. The question for consideration is whether the finding of the District Judge on the issue mentioned above is correct? It has been argued by the learned Counsel for the appellant that finding is erroneous in as much as the learned District Judge failed to appreciate that the respondent did not come or live with the appellant at any time after the passing of the decree for restitution on February 11, 1961 as a wife, so that there was no restitution of conjugal rights as between the parties to the marriage. He has placed reliance for t his argument on Cool v. Cook (1949) 1 All. S.R. 384.
4. A perusal of the record shows that even though the appellant stated at one stage, in the opening part of his examination-in-chief, that the respondent did not come to him after the passing of the decree for restitution of conjugal rights so that she did not carry out that decree, he later on admitted, in the subsequent part of his examination-in-chief, that his wife the respondent went to his house & lived with him in June, 1964, for a period of about 15 or 20 days He also stated that she again came to his house in the Deshra of 1964 and stayed with him for two or three days. Further, he admitted that the respondent came to his house during the Dewali of 1964 and stayed with him for two days and two nights. In the course of the cross-examination he further admitted that his wife came to him in December, 1963, and stayed with him. He has of course stated that whenever his wife came to him they did not live as husband and wife, but this is far from saying that the wife was to blame for it and was not willing to comply with the 'decree for restitution of conjugal rights. There is therefore nothing in. the statement of the petitioner to show that there was no restitution of conjugal rights because of the unwillingness of the respondent.
5. I have also gong through the statement of the appellant's witness Kanhaiyalal P.W. 2 and it is hardly of any consequence because the witness has, stated that he had seen the respondent going with her daughter to the house of the appellant during the Dewali of 1964, but these facts do not support the appellant's claim for a divorce.
6. On the other hand, the respondent has stated the occasions when the appellant went and lived with her and she wept and lived with him. She has also stated that there was a compromise between them and that they jived as husband and wife & resorted to cohabitation on several occasions. This part of the statement of the respondent has not been shaken by cross-examination.
7. The fact therefore remains that the appellant has not stated at all that there was no restitution of conjugal rights because the respondent was not willing for it. So the learned District Judge was justified in taking the view-that the respondent was not to blame in the matter and that the fault lay with the appellant himself. I do not see any reason to disagree with this finding of fact recorded by the court below and, when once a decree for restitution of conjugal rights is complied with, it is spent and cannot justifiably give rise to a petition for divorce under Section 13(1A)(ii) of the Hindu Marriage Act later on.
8. I have gone through the case of Cook v. Cook (1949) 1 All. S.R. 384 cited by the learned Counsel for the appellant. In it the wife had been received back in the matrimonial home as a housekeeper and had not been reinstated as a wife. That judgment does not therefore appear to me to have any bearing on the present controversy.
9. No other point has been argued for my consideration and the appeal is dismissed. There will be no orders as to the cost of this appeal.