K. Udhayabanu vs G.S. Hemalatha

Rathnakala, J.

The judgment and decree dated 10th April 2014 in M.C. No. 371/2013 passed by the Principal Judge, Family Court, Bangalore, is under challenge in this appeal.

The appellant is the aggrieved husband, whose petition filed under Section 13(1)(r) of the Hindu Marriage Act, 1955 (hereinafter referred to as ''the Act'' for brevity) has been dismissed by the court below.

Parties are legally wedded couple having married as per Hindu rites and customs on 3.9.1997 at Chennai. Out of the said wedlock, a female child is born to them and she is aged about 10 years. The parties lived together after the marriage for 11 months at Dubai. Wife returned to her parents'' house for delivery of the child. The husband visited her in her parents'' house and met her expenses, until 2004. Thereafter, the wife avoided the husband. Despite his several requests, she did not joint him. He issued a legal notice dated 9.1.2009 calling upon the wife to join him. Though the notice is served, she has failed to join him. He filed a petition for restitution of conjugal rights before the Family Court, Bangalore, which was numbered as M.C. No. 3068/2009. Notice was ordered by the court below in the said petition. But the wife though received the notice did not appear; she was placed ex parte and the petition for restitution of conjugal rights was allowed vide order dated 16.9.2011. He has sent the said order through courier, but the wife refused to take the parcel and returned the same to the petitioner''s counsel. Thereafter the husband filed an Execution Petition No. 124/2012 but the respondent refused to take notice. Without wife and the child, it is very difficult to live in the society; he has suffered mental agony. Hence the petition for divorce.

The wife was placed ex parte since she refused to receive the court notice. After recording the evidence of the husband and giving audience to the Counsel, learned Judge dismissed the petition on the ground that the certified copy of the order sheet of the Execution Petition No. 124/2012 was still pending and the parallel proceedings was unnecessary and no ground under Section 13(1)(i) of the Act was made out by the husband. There is further remedy under the Hindu Marriage Act where the order for conjugal right is not obeyed, however, without invoking the said provision, the petition is filed on the said ground.

Sri. E. Rajagopal, learned Counsel appearing for the petitioner submits that, the Execution Petition No. 124/2012 was duly withdrawn as not pressed on 24.8.2013. There as no alternative remedy for him except to seek a decree of divorce since the wife did not join him inspite of the knowledge of decree passed against her to restitute the conjugal rights of the husband; that the observation made by the court below is erroneous and perverse; except the present forum, he had no other avenue to work out his remedy on the wife not obeying the decree or the family Curt for restitution of conjugal rights of the husband. Wherefore, the impugned judgment and decree be set aside and decree of divorce may be granted in favour of the husband.

Respondent though duly served remained absent.

In the light of the above and on perusal of the impugned judgment and the lower court records, the sole point arises for our consideration is:

"Whether the husband has made out a case for Divorce?"

It is borne out from the records that the respondent is the legally wedded wife of the appellant/husband and the couple have a female child born out of the said wedlock. The husband moved the petition under Section 9 of the Act in M.C. No. 3068/2009. The wife despite service of notice remained absent. After considering the case of the husband, the court below ordered restitution of conjugal rights directing the wife to join the husband in the matrimonial home vide order dated 16.9.2011. The husband contended that he had sent the said copy of the said judgment through courier to the wife, which was not received by her. Thereafter, he filed a petition in Ex. Petition No. 124/2012. During the pendency of the Execution Petition, he filed the petition for divorce invoking the provisions of Section 13(1)(i) of the Act. Said provision of Section 13(1)(r) with its sub-sections (a) and (b) reads thus:

"13. Divorce.- (1) Any marriage solemnized, whether before or after the commencement of this Act may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;"

But there is not even a spell of pleading in respect of ground under sub-section (i-a) and (i-b) of the Act in his petition. His further submission before this Court is that, he has withdrawn his execution petition. While addressing such submission, the husband has lost sight of the fact that when there is no resumption of cohabitation, for a period of one year after a decree for restitution of conjugal right is passed, the aggrieved spouse is entitled to seek decree of divorce on that ground only. The relevant provision reads thus:

"13. Divorce.-(1-A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties."

The mode of attachment of a decree for restitution of conjugal rights is enumerated in Rule 32 of Order XXI of CPC. Accordingly, if the judgment debtor has willfully failed to obey the decree, same may be enforced by attachment of the property of the judgment debtor and the trial court had nothing to wait for the result of the execution petition, had if the husband based the ground of petition as enumerated in Section 13(1-A) of the Act.

Mere quoting of a wrong provision of law shall not disentitle any litigant for the relief he is legally entitled for. But here is a case where the pleading is vague and ambiguous, failing to make out a definite ground for divorce. On facts, learned Family Court Judge finds that there is neither pleading nor any evidence to attract the ground under Section 13(1)(r) of the Act. We are convinced that the learned Judge did not fall into error in recording the said conclusion. But his observation "when execution petition was pending this parallel proceedings was unnecessary" does not make any sense. The mode of execution as contemplated in Order XXI Rule 32 of CPC, entitles the Decree Holder to attach the property of the Judgment Debtor; Execution Petition will not enable him to take his estranged wife to his fold.

We endorse the view taken by the court below that the petition is not maintainable. When the husband himself is not resting his case on the ground of his wife not obeying the decree passed in M.C. No. 3068/2009, there is no scope for interference with the impugned judgment.

Accordingly, the appeal is dismissed. However, liberty is reserved to the appellant/husband to work out his remedy by filing separate petition under relevant provisions of law.

No costs.