(1.) THE appellant/original respondent has directed this appeal against the judgment dated 31st March, 98 rendered by IX ADJ Indore (Family Court) in Case No. 383/96, thereby passing a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 (for short the Act) in favour of the respondent and against the appellant.

(2.) THE undisputed facts of the case are that the appellant and respondent are wife and husband and their marriage was solemnised on 8. 5. 1989 at Indore under the Hindu Religion and Customs. The appellant and respondent lived together as wife and husband till 20. 10. 1994 and as a result of marital relations one male child Aditya borned to the appellant, who is at present aged about 6 years and living with the appellant at Yeotmal (Maharashtra).

(3.) IT is stated that on 20. 10. 1994 the appellant without any reasonable cause deserted the respondent and started living separately at Yeotmal in Maharashtra. The respondent filed a petition before the Trial Court for grant of decree of restitution of conjugal rights in favour of the respondent as indicated above. Aggrieved, the appellant has filed this appeal against the impugned decree of the Trial Court.

(4.) DURING pendency of this appeal on 9. 4. 1999 both the parties have filed I. A. No. 1921/99 under Section 13b/23a of the Act and prayed for granting a decree of divorce on mutual consent under Section 13b of the Act. Parties were granted six months time for consideration on the point of grant of divorce. After expiry of the said period both the parties appeared before this Court and stated in their statements that they are living separately since last five years and during this period no marital relations existed between them. Parties have also stated that due to differences existing between them reconciliation is not possible. As such they voluntarily agree for dissolution of marriage by mutual consent.

(5.) IN I. A. No. 1921/99 parties have also agreed that after decree of divorce their minor son aditya shall continue to live alongwith the appellant Smt. Ratna and the respondent shall be entitled to meet and take his minor son aditya for a day during a period of one month at Yeotmal and he shall also be entitled to take him at Indore for a period of one week during the period of school holidays. Parties have also agreed that after the divorce, respondent shall regularly pay to the appellant Rs. 750/- per month by way of maintenance for herself and minor son aditya until she remains unmarried.

(6.) THE Counsel are heard on the aforesaid application. The Counsel for the parties submitted that in the present case, parties are living separately since last five years and no marital relations are existing between them. It is also contended that the appellant has not complied the decree for restitution of conjugal rights as passed by the Trial Court for a period of more than one year. Both the parties in their statements on oath have categorically stated that because of differences reconciliation between them is not possible and as such with the consent they have decided to dissolve the marriage for a decree of divorce on the ground of mutual consent. The Counsel for the parties for passing the decree of divorce, on the application filed by the parties relied on the Division Bench decision of Punjab and Haryana High Court reported in 1986 Marriage LJ 179.

(7.) CONSIDERING the submissions of the Counsel and in view of the facts and circumstances of the case on hand as also considering the Division Bench decision of Punjab and Haryana High Court in which under the similar facts and circumstances Honble. High Court during pendency of the appeal against the decree of restitution of conjugal rights on joint application of husband and wife for dissolution of marriage by mutual consent, granted decree for divorce under Section 13b of the Act. Applying the same principle to the case on hand, in my opinion, the application filed on behalf of the parties under Section 13b of the Act deserves to be allowed.

(8.) IN the result I. A. No. 1921/99 filed by the parties is allowed and marriage solemnised between the appellant and respondent stands dissolved by a decree of divorce under Section 13b of the Act. As agreed between the parties under Section 25 of the Act, respondent is directed to pay Rs. 750/- per month to the appellant by way of maintenance to herself and minor son aditya until the appellant remains unmarried. Under Section 26 of the Act it is also ordered that minor son aditya shall continue to remain in the custody of the appellant Smt. Ratna, mother of the minor child and the respondent shall be entitled to meet and take his minor son Aditya for a day in a period of one month at Yeotmal, he shall also be entitled to take him (minor son aditya) at Indore for a period of one week during the period of school holidays in case the minor is willing to accompany respondent.

(9.) CONSEQUENTLY, this appeal stands disposed of as indicated above. The impugned judgment and decree of restitution of conjugal rights stand set aside. No orders as to cost. Decree be drawn up accordingly.