M.L. Koul, J.
1. This appeal has arisen out of a decree of divorce passed by the District Judge, Faridabad, dated 30-3-1996 whereby the marriage of the appellant Kumud Wadhwa (for short 'the wife') with respondent Mahender Kumar (for short 'the husband') was dissolved.
2. The brief facts of the case giving rise to this appeal are that the husband preferred a petition for a divorce under Section 13(1-A)(i) of the Hindu Marriage Act, 1955 as amended, which reads as under :--
'that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceedings to which they were parties.'
The marriage between the parties was solemnized in accordance with Hindu rites on 1-10-1990 at New Delhi. The husband and wife last resided together in their matrimonial home at Faridabad. A petition for judicial separation and divorce was earlier filed by the wife in a Matrimonial Court at Delhi and a decree for judicial separation was passed by that Court on 19-3-1994.
3. As there was no resumption of cohabitationbetween the husband and the wife for a period of more than one year of the passing of the said decree for judicial separation the husband preferred a petition on 20-3-1995 for the grant of divorce.
4. The wife while controverting the claim of the husband raised a specific plea that on the occasion of Diwali festival in the year 1994 she was taken to his house by the husband at Faridabad where she stayed with him for three days and also cohabited with him during that period and afterwards she was turned out from the house. The husband was also accused to having failed to comply with the order of the Matrimonial Court at Delhi to pay the litigation expenses and the maintenance pendente lite which disentitled the husband to bring any such petition for divorce and that he was also liable for contempt of Court.
5. The trial Court raised three issues in the matter raising three questions for determination in the controversy :
(a) With regard to the resumption of cohabitation between the parties taking or not taking place within a period of one year after the decree for judicial separation on 19-3-94 was passed. That the trial Court had no jurisdiction to try the petition.
(c) That the petition could not be proceeded before the trial Court owing to the failure on the part of the husband to pay the litigation expenses as ordered by the Matrimonial Court by passing judicial separation.
6. All these three issues have been decided by the trial Court against the wife holding that there was no resumption of cohabitation between the parties for a period of more than one year after passing of the decree of judicial separation on 19-3-1994. It further held that it had the jurisdiction to try the petition for the parties had last resided at Faridabad when the petition for judicial separation was filed by the wife. The trial Court also held that the husband had not taken any advantage of his own wrong for there had been no resumption of cohabitation within a period of one year and therefore the husband could not be non-suited on the ground that he had not paid the maintenance allowance to the wife.
7. Before us, Mr. Balhara, learned counsel for the wife has vehemently argued that as the husbanddid not comply with the order of the Matrimonial Court regarding the payment of maintenance and litigation expenses to the wife, therefore he was debarred to file a petition within the parameters of Section 13 of the Hindu Marriage Act (hereinafter referred to as the Act) for dissolution of marriage by a decree of divorce.
8. During the arguments learned counsel for the husband filed a photo slat copy of the receipt issued by the wife in token of the payment received by her from the respondent-husband. A perusal of the same shows that the wife received a sum of Rs. 20,000/- vide Cash Order No. 956147 dated 25-7-1996 and Rs. 3,500/- vide Cash Order No. 493812 dated 26-7-1996 i.e. total Rs. 23,500/- towards full and final satisfaction of the execution application bearing No. 16-93 against suit No. HMA 696/91 titled as Smt. Kumud Wadhwa v. Mahender Kumar Wadhwa pending in the Court of Mrs. Urmila Rani, A.D.J., Delhi. It indicates that the wife has already received the whole maintenance and the litigation expenses from the Matrimonial Court.
9. The argument advanced by the learned counsel for the wife that the husband was debarred to seek a decree of divorce by filing a petition under Section 13 of the Act is not cogent and worth consideration. It is contained in Section 13 of the Act itself that any marriage solemnized whether before or after the commencement of this Act may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the grounds raised in the Section; One of such grounds which calls for adjudication by us is that the dissolution of the marriage by a decree of divorce can be sought on the ground that there has been no resumption of cohabitation between the husband and the wife for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were the parties.
10. It is a proved fact and as admitted by the parties that on the application of the wife preferred before the Matrimonial Court at Delhi, a decree for judicial separation was passed by that Court on 19-3-1994. Pursuant to that decree she also filed an execution application before the said Court for realisation of the maintenance pendente lite and the litigation expenses granted by the said Court. She preferred the execution petition and realised the full decretal amount as discussedabove.
11. Now the fact remains as to whether there was resumption of cohabitation between the husband and the wife within a period of one year or more of such a decree passed in her favour in 1994. As already said the learned trial Court has given a finding against the wife saying that she never resumed cohabitation with her husband after the decree for judicial separation was parsed in her favour.
12. There is no evidence available on the file to show that any Panchayat of the relatives of the parties or elder men of the area was convened to reconcile the matter between them as a result of which the husband invited the wife to his house and they lived together as husband and wife for three days and cohabited as well. There is also no proof available on the file that the husband personally or through some of his relatives or by a third person called the wife to his house on the eve of Diwali festival in the year 1994 and cohabited with her for three days. These are only bald allegations levelled by the wife against the husband. No cruelty is pleaded or proved by the wife against her husband which forced her to run away from the socalled resumed company of her husband after three days. As no resumption of cohabitation between the parties took place for a period of one year or more after a decree of judicial separation was granted in favour of the wife, the husband under law filed a petition under Section 13(1A) (i) of the Act for divorce.
13. It is neither pleaded nor is the case of thewife that she filed a petition under Section 10(2) of the Act before the Matrimonial Court granting the decree for judicial separation who permitted the parties to cohabitate with each other after rescinding the said decree for judicial separation passed by it. Therefore, in no manner it was obligatory for the husband to cohabit with the wife to which effect there is no proof available on the file as well that he at all called his wife to his house even temporarily for a day to have the resumption of cohabitation with her. The trial Court has correctly held that there has been no resumption of cohabitation between the parties for a period of one year or upwards after the passing of the decree for judicial separation in a proceeding to which they were parties. The trial Court thus under law was justified in passing a decree for divorce in favour of the husband andagainst the wife by dissolving their marriage.
14. Once it is found factually that after the judicial separation the parties did not resume cohabitation for a period of one year or more, therefore, legally we feel that the, husband under law was entitled to seek a decree of divorce and the trial. Court was within its legal limits to pass such a decree in favour of the husband and against the wife. We do not find that, any illegality or impropriety has been committed by the trial Court in doing so.
15. In view of the above discussion, we do notfind any merit in this appeal and the same isdismissed.