1. This appeal is directed against the judgement and decree dt. 31-71985 of the learned Additional District Judge (3), Kurukshetra, whereby he allowed an application under S.9 of the Hindu Marriage Act, 1955 (hereinafter called the Act ) filed by Smt. Parmeshwari respondent and passed a decree for restitution of conjugal rights against Parkash Chander appellant.

2. A petition under S.9 of the Act was filed by the respondent on 29-1-1982 alleging therein that marriage between her and Ishwar Singh, brother of the appellant, was solemnised at village Barsana, district Kurukshetra, according to Hindu rites and customs in the year 1959. Ishwar Singh was employed in the Indian Army at the time of marriage. He became lunatic during his service and consequently was discharged from the Army in the year 1961. Thereafter, he remained unheard of for more than 7/8 years and was still unheard of at the time of filing of the petition and was presumed to be civilly dead. No child was born from her womb from the loins of Ishwar Singh. A suggestion/proposal was put to her parents by the appellant s parents and his near relations that she should enter into a karewa marriage with him - he being the real brother of Ishwar Singh. This proposal was accepted by her as a usual custom in the community and consequently Karewa marriage was performed between her and the appellant in November, 1969 at village Kaul, district Kurukshetra. Due ceremonies were performed as required for completing the marriage as a legal one and it was accepted by the appellant. After solemnisation of the marriage, it was alleged that the parties started living together as husband and wife at village Kaul and cohabited as such. Out of their wedlock a son named Surinder Singh was born on 24-2-1971 at village Barsana. In 1971 the appellant was employed as Agricultural Inspector at Gurgaon. He started taunting the respondent that she was an illiterate lady and he could get himself re-married with some educated and cultured girl. He also started misbehaving with her and she wrote letters to this effect to her parents. On receipt of these letters, her parents approached the appellant s parents in their house at village Kaul accompanied by some respectables of the locality, brotherhood and relations on 5-11-1972 and requested the appellant not to misbehave with her in future and maintain her as his legally wedded wife but he did not accede to these requests and turned her out of his house in three clothes without reasonable cause or excuse along with the above said Panchayat retaining all the jewellery etc. and the child with him. It was alleged that the child was still with the appellant. A deed to this effect was reduced into writing by the Panchayat. Thereafter, the respondent s parents approached the appellant and his parents many a time but without any tangible result. She addressed letters to the higher authorities of the department of the appellant. Out of fear of any action by the higher authorities against him, the appellant s father approached the respondent s brother in June, 1976 to settle the matter. The brother of the respondent visited village Kaul and also entered into correspondence with Shri Ishwar Singh Ex.-M.L.A. on 25-10-1979. She also addressed a letter to the Agriculture Minister, Haryana, and other concerned authorities but without any fruitful result. She thus prayed for a decree for restitution of conjugal rights requiring the appellant to rehabilitate her.

3. The appellant contested the petition. Besides raising preliminary objections to the effect that there was no relationship of husband and wife between him and the respondent; that she was the wife of Ishwar Singh - his elder brother, who was still alive and there had been no divorce of the lawful marriage between her and Ishwar Singh and thus their marriage was still subsisting; that the petition was highly belated and the delay itself spoke volumes about falsehood and manipulations which had cu