The main legal point established in the judgment is that a joint petition for restitution of conjugal rights and divorce is not maintainable, and the filing of a petition for restitution of conjugal rights implies condonation of earlier acts of cruelty, depriving the petitioner of the right to seek relief on the offending conduct.

Deepak Gupta, J.—This appeal has been filed by the husband under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) against the judgment and decree passed by the Additional District Judge, Kangra at Dharamsala in Hindu Marriage Petition No. 3/D/III/ 93, decided on 21.6.1996 dismissing the petition of the husband.

2. The husband filed a petition under Section 9 of the Act for restitution of conjugal rights or in the alternative for grant of a decree of divorce under Section 13 of the Act. The facts, as alleged, were that the marriage between the parties was solemnized according to Hindu rights at Talwara on 7.8.1988. It was alleged that about 7 months after the marriage, the respondent left her matrimonial home. After the intervention of some respectable persons she again joined company of the petitioner in May, 1989, but again left his company after one week. According to the petitioner he also sought the help of Family Counseling Center, but with no fruitful result. Thereafter at the instance of some other persons including the brother of the wife, she again joined company of the petitioner, but finally deserted the husband and left for Talwara on 19.2.1993.

3. The husband alleges that thereafter from 20.2.1993 till 28.2.1993 he made efforts to bring back the wife, but to no avail. He lastly went to the house of his in-laws alongwith other respectable persons on 23.3.1993. It is alleged that on the said date the wifes brother and sister beat the petitioner and she refused to accompany him. The petitioner alleges that he was always ready and willing to keep the respondent with him.

4. The prayer clause of the petition reads as follows : "The petitioner, therefore, prays that a decree for restitution of conjugal rights may be passed or in the alternative the marriage of the parties may be dissolved by a decree of divorce." The wife contested the petition. According to the wife it was the husband who was at fault and it was he who had wilfully neglected her and the children. She stated that she had filed a criminal complaint against the petitioner at Nurpur because he used to harass her mentally, and physically also manhandled and tortured her. It was only after he gave an assurance that he would keep her and her children well, that she agreed to join his company. However, the petitioner did not keep up his promise and reverted to his old habits. According to the wife on 23.3.1993 it was the petitioner in fact who had given her beating at her parental house and had insulted her and also refused to take her back.

5. On the pleading of the parties, the trial court framed the following issues:

1. Whether the petitioner is entitled for restitution of conjugal rights? OPP

2. Whether the respondent has, after solemnization of the marriage, treated the petitioner with cruelty and is entitled for a decree of divorce in the alternative on that ground? OPP

3. Whether the petitioner has, after the solemnization of the marriage, treated the respondent with cruelty? If so, its effect ? OPR

4. Whether the petitioner has deserted the respondent for a continuous period of not less than two years immediately preceding the presentation of the petition? If so, its effect? OPR

5. Relief.

6. After recording evidence and hearing the parties the trial court has dismissed the petition. The trial court held that the petitioner has failed to prove that he was subjected to cruelty by the respondent and was, therefore, not entitled for a decree of divorce. The trial court in fact held that it was the petitioner who had treated the respondent with cruelty. Aggrieved against the said judgment and decree the present appeal has been filed by the husband.

7. Mr. Rajnish Maniktala, learned counsel for the appellant, has argued that the findings of the court below are totally against the evidence and in fact if the evidence is scrutinized carefully, it is quite clear that it is the wife who has treated the husband with cruelty and he is