Madhya Pradesh High Court
Smt.Sudha Mankare vs Laxmi Prasad Mankare on 22 August, 2013
F.A. No.427/2000
22/8/2013:
Shri G. S. Baghel, learned counsel for the appellant.
None for the respondent.
Challenging the judgment and decree dated 12.5.2000
passed by the 2nd Additional District Judge, Balaghat,
dissolving the marriage solemnized between the parties, this
appeal has been filed by the appellant wife under Section 28
of the Hindu Marriage Act.
Facts in brief goes to show that the marriage between
the parties was solemnized on 28.6.1988 in Chhindwara. The parties lived together for some time and a son was also born out of the wedlock. However, when the appellant wife started living separately, the respondent husband filed an application for restitution of conjugal rights. This application was allowed by the learned Trial Court i.e. the 3rd Additional District Judge, Chhindwara on 29.11.95 and when for a period of more than one year the appellant did not comply with the directions issued for restitution of conjugal rights, the suit in question was filed for dissolution of marriage.
Even though Shri Baghel, learned counsel for the appellant tried to emphasize that the grounds for dissolution of marriage is not made out and without considering the totality of circumstances the marriage has been dissolved. On going through the record it is seen that the only ground canvassed in this appeal is that during the pendency of the appeal challenging the order of restitution of conjugal rights dated 29.11.95 the trial Court passed the decree for dissolution on the ground of non compliance with the decree of restitution of conjugal rights, the marriage could not be dissolved, as an appeal was pending in the High Court. However, the facts that have come on record goes to show that the order passed in the proceedings held under Section 9 of the Hindu Marriage Act was challenged by the appellant before this Court in F.A. No.46/96. This appeal was filed in the year 1999, but for want of prosecution i.e. on 10.12.99 it was dismissed and therefore, for restoration of this appeal MCC No.1111/2000 was filed. This application was allowed on 7.5.2007 and an order was passed for restoration of F.A. No.46/96 subject to the appellant paying a cost of Rs.4000/- It seems that the cost of Rs.4000/- was never paid and therefore, the First appeal No.46/96 was never restored. As a result the order with regard to restitution of conjugal rights passed on 29.11.95 has attained finality and it is a fact that ever since 1995 the decree for restoration has not been complied with by the appellant and the parties are living separately since one year from 1995 when the decree of dissolution of marriage was filed.
Taking note of all these circumstances when the decree for dissolution was passed by the Court below on the ground of desertion, we see no reason to interfere into the matter. The Appeal is therefore, dismissed.
Original record be sent back.
( Rajendra Menon ) ( Mrs. Vimla Jain )
Judge Judge
mrs.mishra