Paramjit Kaur and Tej Kaur vs Jaswant Singh

G.C. Garg, J.—Jaswant Singh, respondent herein filed a petition for dissolution of marriage by a decree of divorce against his wife Paramjit Kaur nee Taj Kaur, applicant herein. Hereinafter, Paramjit Kaur appellant will be referred to as wife and Jaswant Singh respondent as husband. Learned Additional District Judge, Sirsa by his judgment and decree dated January 16, 1992 accepted the petition of the husband and passed a decree of divorce dissolving the marriage between the parties. This is how the wife has preferred the present appeal against the Judgment and decree aforesaid.

Marriage between the parties was solemnised on March 23, 1980 and they lived as husband and wife for some time. A son and a daughter were born as a result of this wedlock. The children are residing with their mother, appellant. The husband filed a petition u/s 13(1A)(i) of the Hindu Marriage Act (for short ''the Act'') for dissolution of marriage between the parties by a decree of divorce on the ground of cruelty. The said petition was contested by the wife and was decided by the learned District Judge by order dated April 4, 1989. Learned District Judge having regard to the interest of the minor children and in order to afford the parties an occasion to sink their differences and to enable them to reproach and reconcile, granted a decree for judicial separation u/s 10 of the Act, instead of dissolving the marriage by a decree of divorce u/s 13 of the Act. It is not necessary to notice in this case the allegations of cruelty which were levelled against the wife in the previous petition. After a lapse of one year, the husband filed a petition u/s 13(1A)(i) of the Act for dissolution of marriage by a decree of divorce on the ground that there has been no resumption of cohabitation between the parties for a period of one year or upwards after the passing of the decree for judicial separation. It was also alleged that the decree passed by the District Judge on April 4, 1989 became final, no appeal having been preferred against the said decree. It was further stated in the said petition that it had not been presented in collusion with the wife and there had been no delay in filing the same.

The wife put in appearance and admitted the broad allegations levelled by the husband. She, however, pleaded that cruelty alleged on her part in the previous petition had not been proved and it was rather the husband himself who was cruel to her and consequently responsible for destroying the matrimonial home. Allegation of illicit relations of the husband with one Pammi daughter of Bakshish Singh, his mother''s sister''s daughter was also made. A plea was also raised that she along with her mother, her maternal uncle Pritam Singh and others tried their best to persuade the husband that he should mend his ways but he never tried to reconcile the matter. Even after passing of the decree for judicial separation. She and her mother took all steps for reconciliating the matter by forgetting the past and with this attitude approached the husband''s family so that the parties could live together but their efforts bore no fruit. In these circumstances, it was pleaded that the husband was taking advantage of his own wrong. On these pleadings of the parties, learned Additional District Judge by judgment and decree dated January 16, 1992 allowed the petition and passed a decree of divorce in favour of the husband and against the wife, as already noticed above.

Learned counsel for the wife submitted that the husband was living with Pammi and was not at all interested for reconciliation though efforts were made by the wife to return to the past. The wife took panchayat for reconciliation, but the husband and other members of his family did not agree to rehabilitate her. On these premises it was submitted that the husband was not entitled to the relief as he was taking advantage of his own wrong. The matter was considered in detail by learned Additional District Judge, who concluded that the husband is not taking advantage of his own wrong in any manner. During the course of arguments or even otherwise it has not been shown that after the grant of decree for judicial separation, the wife cohabited with the husband during the period of one year or upwards or till the filing of present petition. The mere fact that efforts were made by the wife to rehabilitate the matrimonial home in no way helps her. After the grant of decree for judicial separation, it is not obligatory for the husband to cohabit with his wife. A power is, however, given to the Court to rescind a decree on an application moved by either of the parties and on being satisfied of the truth in the statement made in that petition, if it considers it just and reasonable to do so. Nothing has been pointed out that the decree for judicial separation deserves to be rescinded. In fact no application for that purpose has been moved and nothing has been shown which may satisfy the Court that the decree for judicial separation deserves to be rescinded. In my view, whether the husband is taking advantage of his own wrong or not, is really not material for the disposal of this appeal. After the grant of decree for judicial separation, question of taking advantage of his own wrong by the husband does not arise unless, as noticed above on an application moved by either of the parties, the Court is satisfied about the truthfulness of the allegations made therein and, is of the opinion that the allegations are of such a nature, which may provide an occasion to the Court to rescind the decree. Such allegations may be that the parties after grant of decree for judicial separation have cohabited or that they have started living together on account of persuasion by the members of the family of both or either of the parties, Nothing of the sort has been alleged or proved. The fact that the husband refused to rehabilitate the wife when she approached the former for reconciliation after grant of decree for judicial separation, cannot be taken to mean that the husband is taking advantage of his own wrong. Sub Section (2) of Section 10 of the Act clearly provides that where a decree for judicial separation has been passed, it shall no longer be obligatory for the wife to cohabit with her husband, provisions of Sub section (2) of Section 10 of the Act are entirely in a different context. The provisions of Section 23(1)(a) of the Act can more appropriately be pressed into service when a spouse is seeking divorce u/s 13(1A)(ii) on the ground that there has been no restitution of conjugal rights between the parties for a period of one year or upwards after the passing of the decree u/s 9 of the Act. When a decree u/s 9 is granted, the other spouse is expected to comply with the decree and not to frustrate it, which is not the case when a decree for judicial separation is granted. In the circumstances it can safely be concluded in the present case that the wife cannot succeed on the ground that the husband is making advantage of his own wrong. Decree for judicial separation in a petition for, divorce is granted, instead of dissolving the marriage by a decree of divorce straightway, when the Court is satisfied on the facts and circumstances of the case that there is a chance of reconciliation in due course of time. It was in these circumstances, learned District Judge granted a decree for judicial separation though the husband had filed a petition u/s 13 of the Act for dissolution of marriage by a decree of divorce on the ground of cruelty.

Granting of a decree for judicial separation is admitted. In the circumstances, it has to be seen, whether the husband is entitled to a decree of divorce on the strength of such decree earlier granted in his favour. To me, it seems that the object of Section 10 of the Act is only to give time to the spouses for reproachment and reconciliation in a situation when on the facts alleged and found, the marriage has broken down for all practical purposes, the grounds for obtaining a decree for judicial separation as also a decree of divorce being the same. The effect of granting a decree for judicial separation is to permit the two spouses to live separately, give them time to re - think and interact if they could live together and establish matrimonial home instead of dissolving the marriage straightway by a decree of divorce which, in the present society is taken a blot. In present petition has been moved by the husband u/s 13(1A)(i) of the Act seeking a decree of divorce on the ground that there has been no resumption of cohabitation between the parties for a period of one year or upwards after the passing of the decree for judicial separation. In the circumstances noticed above, I see no ground to decline the relief granted to the husband. The decree of divorce passed u/s 13(1A)(i) of the Act by the learned Additional District Judge has thus, to be upheld.

For the reasons aforesaid, I find no merit in the appeal which is hereby dismissed. The parties shall, however bear, their own costs.