Vinod K.Sharma, J.

1. This appeal by respondent/wife is directed against the grant of decree of divorce on a petition filed under Section 13 of the Hindu Marriage Act.

2. The respondent/husband filed a petition under Section 13 of the Hindu Marriage Act on the pleadings that the marriage between the parties was solemnized on 14.1.1987. After the marriage, the parties lived and cohabited together as husband and wife and out of this wedlock two children namely Navjyoti (daughter) and Abhishek (son) were born. The divorce was sought on the ground of desertion and cruelty.

3. Issue of cruelty was not pressed, therefore, was decided against the respondent/husband.

4. On issue No. 2, in stead of recording the finding as to whether the appellant/wife had deserted the petitioner, the learned Matrimonial Court held it to be a case of broken marriage and passed a decree of divorce. The finding recorded by the learned Matrimonial Court reads as under :-

"The marriage between the parties is not successful and since the very inception of the marriage, the marital relations between the parties are not smooth. The matrimonial dispute between the parties started within two years of their marriage and since the year 1989 the relations between the parties are at dagger drawn. The respondent wife is living separate from the petitioner husband. As per her own admission made during her cross- examination, RW3 Veena Rani, respondent has admitted that since the year 1994 she is residing in her parents house. She has admitted that since then the petitioner is not paying her any maintenance nor has cared for her. She has admitted that the parties are not on visiting terms with each other since the year 1994 and that she has never filed an application or petition u/s 9 of the Hindu Marriage Act for the restitution of conjugal rights. If this is the state of affairs between the parties, it can be safely concluded that there is no love or affection left between the parties. There is no warmth of matrimony in this case. It is a case of a dead lock between the husband and wife. The petitioner is not ready to carry on with his wife. The respondent wife is not interested in her rehabilitation and in returning to the matrimonial home. Both the parties have never filed any petition for the restitution of conjugal rights which shows that the marriage between the parties has totally broken down. The attitude of the husband and wife towards each other is indifferent and under these circumstances to insist or compel the parties to perpetuate the dead lock between the parties will not be justice to either of the parties. In a case Naveen Kohli v. Neelu Kohli, 2006(2) RCR(Civil) 290 (SC), the Honble Supreme Court of India has held that where the marriage is proved to be an irretrievable broken down marriage, the divorce may be granted, although one of the parties did not want divorce. In that case, the parties were living separate from each other for the last 10 years and the Honble Supreme Court of India held it to be a broken marriage. The facts of that case are similar to the facts of the present case. In the present case, the parties are living separate from each other for the last more than 14 years and there are no chances of their rehabilitation or residing together as husband and wife and, therefore, granting divorce in the present case would be fully justified."

5. The finding recorded by the learned Matrimonial Court is not sustainable in view of the law laid down by this Court in the case of Gurdeep Singh @ Tota Singh v. Jaspal Kaur, 2009(1) RCR(Civil) 593 holding therein that irretrievable marriage is not a ground for divorce.

6. It is also not in dispute that prior to the filing of the present petition respondent/husband had filed a petition for divorce which was dismissed by the Court of learned Addl. District Judge, Faridabad on 14.5.1997.

7. The second petition was, therefore, not maintainable on the same allegations, in view of the l