By the Court.—This appeal under Section 19 of the Family Courts Act, 1984 (herein after referred to as the Act, 1984) is directed against the judgment and order of the Principal Judge, Family Court, Jhansi passed in Petition No. 108 of 2003 (Raj Kumar Makdariya v. Kiran @ Karuna) dated 2.1.2010.

2. A Division Bench of this Court has already noticed the concession of the counsel for the parties in its order dated 10.1.2017 for the appeal being decided on the basis of the records received from the Court below without insisting on filing of paper book. Accordingly, with the consent of the parties, we have heard the appeal on merits.

3. Facts relevant for deciding the present appeal are as under :

Marriage between Raj kumar Makdariya and Kiran @ Karuna was solemnized in accordance with the Hindu rights and rituals on 7.12.1996 at Jhansi. The husband filed an application under Section 13 of the Hindu Marriage Act, 1955 (herein after referred to as the ‘Act, 1955’) for divorce on 1.7.1998. The wife, on the contrary, filed a petition for restitution for conjugal rights under Section 9 of the Act, 1955 on 29.5.2000. Both the petitions were clubbed together and under the common judgment and order dated 9.4.2002, the petition of husband was rejected while the petition filed by the wife for restitution of conjugal rights was decreed.

4. Since the husband was not complying with the decree, the wife was compelled to file an execution application was numbered as Execution Case No. 06 of 2002. While the execution proceedings were still pending, the husband instituted a second petition for divorce under Section 13(1-A)(ii) of the Act, 1955 with the allegation that there has been no restitution of conjugal rights between the parties to the marriage for a period of one year after passing of the decree for restitution of conjugal rights dated 9.4.2002.

5. The application so filed was contested by the wife on the ground that it was the husband who was not complying with the decree which was granted under the judgment and order of the Family Court dated 9.4.2002, execution application in that regard was still pending. The wife contended that the husband was not complying with the decree, on one hand and on the other he was trying to take benefit of the expiry of the period of one year after the decree. Therefore, no relief be granted to the husband in view of Section 23 of the Act, 1955.

6. The husband in replica contended that whatever may be the reason for non-compliance of the decree, the required period of one year has expired after a decree passed under Section 9, of the Act, 1955, the husband was entitled to a decree of divorce as prayed for.

7. The Trial Court under the order impugned even after noticing the facts as contended by the wife including that the application for execution of the decree granted on 9.4.2002 for restitution of conjugal rights was still pending has decreed the petition filed by the husband under Section 13(1-A)(ii) of the Act, 1955.

8. The wife, not being satisfied, has filed this Appeal.

9. There is hardly any dispute between the parties on facts as have been noticed herein above. Counsel for the parties have not disputed that the earlier petition filed by the husband for divorce and the petition filed by the wife for conjugal rights were decided under the common judgment and order dated 9.4.2002 while the suit filed by the husband was dismissed. The petition filed by the wife was allowed and a decree was issued commanding the husband to live as husband and wife with reference to the powers vested under Section 9 of the Act, 1955.

10. It is also admitted to the parties that the husband refused to comply with the said judgment and decree for restitution of conjugal rights forcing the wife to initiate execution proceedings. The proceedings were pending before the same Family Court where the second divorce petition was filed by the husband under Section 13(1-A)(ii) of the Act, 1955 and has been decreed.

11. We