JUDGMENT :

ASOK KUMAR GANGULY, J.

1. The husband is in appeal before us impugning the Judgment and Order of the High Court in a Matrimonial Proceeding whereby the Judgment and Order of the District Judge, Mandi in Hindu Marriage Petition No. 20 of 2002 dated 27.10.2004 was reversed by the High Court.

2. The marriage between the parties took place on 13.12.1988 according to Hindu rites and customs and in March, 1990 a girl child was born to them. The husband alleged that after the birth of the girl child, his wife left for parental house at village Samlet and spent her period of maternity leave there. It was further alleged that his wife, who was working, on being transferred from Garli to Chauaku, stayed at Chauaku instead of in the matrimonial home which was only at a distance of 3 Kms. from the place of her posting. However, the husband admitted that in May, 1994, his wife came to his house for a short period and stayed there with him till the month of May, 1994. Thereafter, his wife is alleged to have permanently deserted him. The further allegation is that in September, 1996, he tried to bring his wife back to his residence for staying with him and his old parents but she refused to do so.

3. Ultimately, the appellant filed a proceeding under Section 9 of the Hindu Marriage Act (hereinafter referred to as the Act) for restitution of conjugal rights and that was contested by his wife. Ultimately a compromise was arrived at before the Lok Adalat and the learned Sub-Judge, Sarkaghat presiding over the Lok Adalat passed an Order on 26-9-1998 treating the said petition under Section 9 as withdrawn, having ended in a compromise. The statements of the parties before the Lok Adalat were recorded and formed part of the decree. The statements, recorded before the Lok Adalat, may be set out herein-below:

(a) Statement of appellant - Husband

Stated that I shall provide room and kitchen for proper living to my wife Julmi Devi and I shall not trouble her in any manner.

(b) Statement of respondent - Wife

Stated that I am prepared to live with my husband Shri Ravi Kumar, I shall live with my husband properly.

4. The allegation of the appellant is that his wife did not comply with the stand taken before the Lok Adalat by residing with him and continued to stay separately. The appellant, being frustrated thereby, filed a petition for a decree of divorce and dissolution of marriage on the grounds of cruelty and desertion. It was numbered as Petition No. 20 of 2002.

5. Initially, the District Judge, Mandi made some unsuccessful efforts to bring about a reconciliation between the parties. Then the proceeding was ultimately tried and evidence was recorded and by a Judgment and an Order dated 27.10.2004, the learned District Judge granted a decree of divorce which was challenged by the respondent wife before the High Court and the High Court reversed the finding of the learned District Judge.

6. While reversing the finding of the learned District Judge, the High Court acted in exercise of its powers under Section 28 of the Act. In doing to, the High Court acted as a first Court of appeal, which is a Court, both on facts and law. The High Court noted the case of the parties and also the evidence which was adduced before the Trial Court.

7. Several questions cropped up in the course of hearing before the High Court. One of them being whether in view of filing of a proceeding for restitution of conjugal rights, the appellant had condoned all alleged prior acts of cruelty of the wife. The High Court after considering some decisions came to a finding that by filing a petition under Section 9 of the Act, the appellant had condoned the earlier alleged acts of cruelty of the respondent wife. Condonation is basically a question of fact. This Court finds that reasoning of the High Court on condonation in the facts of this case is correct.

8. After recording the said finding, the High Court noted that there is no specific allegation by the appellant of wife's cruelty a