The main legal point established in the judgment is that the decree for restitution of conjugal rights does not negate the finding of cruelty and desertion if the marriage has irretrievably broken.

Jawahar Lal Gupta, J.

1. The appellant is aggrieved by the judgment of the learned Single Judge by which her appeal under the provisions of the Hindu Marriage Act, 1955 was dismissed. A few facts may be noticed.

2. The appellant, Smt. Ishwar Kanta, was married to the respondent on April 13, 1976. A son was born to the couple on September 9, 1977. On September 29, 1981, the respondent husband filed a petition under Section 13 of the Hindu Marriage Act, 1955, alleging that the wife was guilty of cruelty and desertion for a period of more than two years immediately prior to the filing of the petition. He further alleged that she was suffering from schizophrenia of such a kind that it was not safe for him to stay with her. The learned Trial Court found that the present appellant was guilty of cruelty and desertion. Accordingly, on July 21, 1982 the learned trial Judge passed a decree for judicial separation. The appellant approached this Court in an appeal which has been dismissed by the learned Single Judge. Aggrieved by the judgment of the learned Single Judge, the appellant has filed the present Letters Patent Appeal.

3. Another fact which deserves mention is that on March 13, 1982, the appellant filed a petition under Section 9 of the Act for restitution of conjugal rights. This petition was not contested by the respondent-husband. As a result an ex-parte decree for restitution of conjugal rights was passed against him on May 28, 1982.

4. We have heard learned Counsel for the parties. Mr. Surinder Gandhi, learned Counsel for the appellant has contended that in view of the decree for restitution of conjugal rights, the finding that the appellant was guilty of desertion or cruelty cannot be sustained. He consequently prays that the judgment of the learned Single Judge should be reversed. On the other hand, Mr. C.B. Goel, learned Counsel for the respondent-husband has pointed out that efforts for reconciliation were made before the learned Single Judge. On March 9, 1984, the respondent had expressed his willingness to live with the appellant. Even the appellant had agreed. However, in spite of the efforts made by her brother, she had refused to go with her husband without disclosing any reason. On this basis, he submits that the appeal has been filed only to harass the respondent and that it deserves to be dismissed.

5. It is the admitted position that the parties have not stayed altogether since July 7, 1978. Furthermore, it is also apparent that in spite of haveing obtained an ex-part decree for restitution of conjugal rights, the appellant had refused to stay with her husband. As such, it is clear that the marriage has irretrievably broken.

6. Even otherwise on merits, learned Counsel for the appellant has not been able to show any infirmity in the findings recorded by the learned Trial Court, which have been affirmed by the learned Single Judge. It was only suggested that the respondent had remarried. It may be so. However, no infirmity having been pointed out in the judgment of the learned Single Judge, we find no ground to interfere in this appeal.

7. Accordingly, the appeal is dismissed. There would be no order as to costs.