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Judgment
Rohit Arya, J.—First Appeal No.121/2009 under section 28 of the Hindu Marriage Act is directed against the judgment and decree dated 18/03/2009 passed by First Additional District Judge, Vidisha in case No. 15A/2007/HMA, plaintiff/husband''s suit for divorce filed after 03 years of decree of judicial separation passed on 29/11/2003 and affirmed by this Court on 25/08/2006, has been filed on the ground that there was no cohabitation between the two for the last 03 years, under section 13(1A)(i) of the Hindu Marriage Act, 1955 (hereinafter referred to as ''the Act'').
First Appeal No.128/2009 preferred by the respondent/wife against the common judgment and decree dated 18/03/2009 whereby the case No. 16A/2007HMA filed under section 9 of the Act, for restitution of conjugal rights has been dismissed.
Both these appeals are heard together and decided by this common judgment.
Facts necessary for disposal of these two appeals are to the effect that marriage between the plaintiff (hereinafter referred to as ''the husband'') and the defendant (hereinafter referred to as ''the wife'') was solemnized on 08/05/1997 as per Hindu rites and rituals at Bina, District Sagar. Undisputedly, husband had filed the suit for divorce on the grounds of cruelty and desertion on 22/04/2001 against wife at Vidisa. The same was decided on merits. At the same time, the wife also filed a suit for restoration of conjugal rights under section 9 of the Act. Trial Court passed the judgment and decree dated 29/11/2003 under section 10 of the Act granting judicial separation to them. However, the trial Court rejected the prayer of the husband for divorce and also rejected the prayer of the wife for restitution of conjugal rights. This Court vide common judgment dated 25/08/2006 had affirmed the judgment and decree passed by the trial Court.
The husband on the ground that for 03 years following the date of judgment and decree dated 29/11/2003, there was no cohabitation between the husband and wife with further assertion that as a matter of fact since 26/11/1997, there was no cohabitation, again presented suit for divorce under section 13(1A)(i) of the Act.
The wife has also filed an application under section 9 of the Act for restitution of conjugal rights.
The trial Court has critically examined the entire oral and documentary evidence brought on record and it has been found that the factual averments made in the plaint are the same as were pleaded in the earlier suit. The trial Court has further observed the plea of cruelty and desertion raised by the plaintiff in the present suit, in fact, in the earlier suit had already been rejected by the trial Court and affirmed by the High Court (supra). As such, no further examination of such pleas was warranted. It was also observed that that since the beginning wife has always expressed her willingness to live with the husband. The husband has been found to be hellbent upon not to live with the wife. So much so, in paragraph 8 of cross-examination, the husband has categorically stated that even if the wife (Archana) was ready to live with him, he is not prepared to live with her. Further, admittedly, husband has not met the wife ever since the decree of judicial separation was passed on 29/11/2003 by the trial Court (supra) as admitted by him in his cross examination and has never made any attempt to bring her back. The husband cannot be given the benefit of his own wrong for granting the decree of divorce on the ground of 13(1A)(i) of the Act under section 23(1) (a) of the Act. In this context, the trial Court has made a reference to the order sheet dated 19/03/2008 which reflects that the husband has never made any attempt to bring his wife back contrary thereto as claimed by the husband. Instead, he has attempted to seek divorce on the basis of an agreement. Therefore, it was found that the husband is making false statement. It was further observed that on the said date, the husband had agreed for payment of Rs.4.50 lacs for maintenance of the wife but did not abide by the same.
It was further observed that the husband has made an allegation of adultery against the wife on the premise that she suffered from venereal disease, however, no evidence in that behalf has been produced before the Court to substantiate such serious allegation against the wife. It was found to be a peculiar situation inasmuch as on the one hand, the husband had no more interest to live with his wife and has never tried to make an effort to bring her back and live with her. But he has filed the instant suit attributing desertion against the wife with allegation of adultery on her part, whereas the wife has consistently been expressing her desire to live with her husband. Under such circumstances, the conduct of the husband was found to be worthy of deprecation. Therefore, he was held not entitled to take benefit of his own wrong in the matter of seeking decree under section 13(1A)(i), in view of section 23(1)(a) of the Act.
The trial Court while addressing upon the prayer of the wife in suit No. 16A/2007 for restitution of conjugal rights has found that similar relief has already been rejected by the trial Court while deciding the suit vide judgment and decree dated 29/11/2003 passed by the trial Court and affirmed by the High Court on 25/08/2006 (supra), no such relief can be granted. Accordingly, the trial Court has dismissed the suit filed by the husband under section 13(1A)(i) of the Act and also dismissed the application under section 9 of the Act filed by the wife. Therefore, both the suits have been dismissed.
Having gone through the common judgment and decree passed by the trial Court, this Court is of the view, undisputedly, both the parties are not living together since November, 1997. True, the wife has always expressed her desire and willingness to live with the husband but in fact, they have not lived together. There was no cohabitation between them for such long period. Love is lost and emotions are dried up between the two. Husband has adopted an elastic adamant attitude not to live with the wife at any cost ever since the year 1997. He has never made any efforts to bring her back and live with her. The order sheet of the trial Court dated 19/03/2008 reflects, as found by the trial Court though he was prepared to pay Rs.4.50 lacs to the wife, although not paid but was not prepared to live with her. Therefore, he has not honoured what he had accepted before the trial Court. That apart, the husband failed to obtain decree of divorce on the ground of cruelty and desertion in the first round of litigation and thereafter he has again attempted to seek divorce under section 13(1A)(i) of the Act alleging non resumption of cohabitation between them after decree of judicial separation little realising that he never attempted to live with her. Besides, made serious allegations against the wife that she suffered from venereal disease, for which there was no foundation or evidence worth consideration.
Consideration the aforesaid facts and circumstances of the case coupled with the fact that mediation between the husband and wife failed vide Mediation report dated 13/05/2013, this Court is of the view that husband''s rigid, stubborn and ''don''t care'' attitude cannot be countenanced. Therefore, no interference is warranted in the impugned judgment and decree denying the decree for divorce (though wife has been consistently expressing her desire to live with her husband but the same has not materialized) and also the prayer for restitution of conjugal rights was not acceded to by the trial Court in view of earlier judgment and decree dated 29/11/2003 passed by the trial Court and affirmed by the High Court on 25/08/2006 (supra). Hence, denial of the said relief by the impugned judgment and decree can also not found fault with.
Now, we turn to the issue as to what relief should be granted to the wife. The wife did not remarry. She is alone with her daughter born out of the wedlock with the husband. She has social status. She is to be respected and accorded social and financial recognition to lead a decent and dignified life. In the opinion of this Court by invoking section 25 of the Act and relying on the judgment of Hon''ble Supreme Court rendered by it in the matter of Medha Ashok Panchabhai Vs. Ashok Atmaram Panchabha , we grant permanent alimony of Rs.10.00 lacs (Rupees ten lacs only) as full and final payment payable to the wife by the husband in four equal installments in a span of one year from today.
With the aforesaid, both the appeals stand disposed of. No order as to cost.