Lack of cohabitation post-restitution decree adjudges eligibility for divorce under S.13 of the Hindu Marriage Act.

1. Challenge in this appeal is levied to the judgment and decree dated 25-6-2016 of the Judge, Family Court, Kabirdham(Kawardha), Chhattisgarh in Civil Case No. 10 - A / 2015 whereby and whereunder he dismissed the petition filed by the appellant under S.13 of the Hindu Marriage Act of 1955 (in brevity ' Act of 1955 - ) for dissolution of marriage solemnized between him and the respondent under the Act of 1955.

2. This is admitted by the respondent that the name, address and other particulars of both the parties shown in the title of the petition are true; both the parties are Hindu Brahmin by caste and governed by the Banaras School of Mitakshara Shakha; marriage of both the parties was solemnized on 18-6-2006 at Bemetara in accordance with the Hindu customary rites and rituals; in the wedlock one male child namely Kunal Mishra was born 9-8-2007 who is living with her, now she is living in her matrimonial house at Bemetara.

3. In brief, case of the appellant is that the respondent was subjecting him to cruelty. She left his house on 21-11-2012. On 19-12-2013, he filed an application under S.9 of the Act of 1955 before the Judge, Family Court at Kawardha which was registered as Civil Suit No. 64 - A / 2013 wherein the Family Court passed the judgment and decree on 20-3-2014 for restitution of conjugal rights against the respondent. More than one year has passed from the aforesaid judgment and decree and there is no restitution of conjugal rights between them.

4. In brief, case of the respondent is that except the admitted facts, other facts of the appellant are denied by her. She had no knowledge about the application, and the judgment and decree of S.9 of the Act of 1955. She lived before and after the aforesaid judgment and decree with the appellant, that is why the appellant had not filed execution for the aforesaid judgment and decree. She is inclined to live with the appellant and not ready for divorce.

5. After conclusion of the trial, the trial Court passed the aforesaid judgment and decree. Being aggrieved, the appellant preferred this appeal.

6. Smt. Indira Tripathi, counsel for the appellant vehemently argued that the trial Court ignored the fact that there is no resumption of co - habitation of both the parties even after passing of one year and more from the date of judgment and decree of restitution of conjugal rights. The appellant allegedly had not taken advantage of his own wrong. The material placed on record clearly shows that the respondent had committed cruelty with the appellant. Thus, the aforesaid judgment and decree may be set aside and a decree of divorce may be granted in favour of the appellant.

7. Shri P.P. Sahu, counsel for the respondent argued that the respondent had no knowledge about the judgment and decree of restitution of conjugal rights. She was living with the appellant when he filed the application under S.9 of the Act of 1955. She was living with him after the aforesaid judgment and decree of S.9 of the Act of 1955. She is inclined to lead a marital life with the appellant. The appellant did not try to bring her back. He had also not filed any execution. Thus, it would be deemed that he is a wrongdoer. Therefore, the appeal may be dismissed.

8. In the case in hand, after the alleged cruelty, the appellant had preferred an application under S.9 of the Act of 1955 and obtained the judgment and decree in his favour. These circumstances clearly establish that at the time