R. Mohan vs Smt. Kasthuri

Srinivasan, J.—This is an appeal by the husband, whose proceeding for divorce on the ground of cruelty, desertion and non-cohabitation for

more, than a year after the passing of a decree for restitution of conjugal rights has been dismissed for default. The case of the husband is that the

marriage between him and the respondent took place on 2.6.1980 and she did not allow him to consummate the marriage. She refused to have

intercourse with him and thus treated him with cruelty. It is the further allegation that she left the matrimonial home on 9.6.1980 and began to stay

with her parents permanently. It is also stated by him that she filed O.P. No. 651 of 1985 for restitution of conjugal rights and got an ex-parte

decree. Reference is also made to the proceedings in M.C. No. 225 of 1989 in the Family Court wherein she got an order for maintenance in her

favour at the rate of Rs. 200/-per mensem. When the Original Petition was pending, there was an application by the wife for direction to the

husband to pay interim maintenance and an amount for litigation expenses. Those applications were numbered as I.A. Nos. 345 and 346 of 1992.

The Family court passed an order on 14.9.1992 directing the husband to pay a sum of Rs. 200/- in addition to the sum of Rs. 200/- already

payable under the order in M.C. No. 225 of 1989. The Family Court also directed him to pay a sum of Rs. 400/-towards litigation expenses. The

ultimate order was to direct the husband to pay a sum of Rs. 200/-over and above the amount ordered in M.C. No. 225 of 1989 from 5.2.1992

to 5.10.1992 i.e., Rs. 200/- for eight months making a total of Rs. 1,600/- plus the sum of Rs. 400/- towards litigation expenses making in all a

sum of Rs. 2000/-. The main Original Petition for divorce was posted to 12.10.1992. The husband was directed to make the payment before that

date. When the petition was called on 12.10.1992 the husband appeared and applied for extension of time. The Court extended the time till

28.10.1992. On 28.12.1992 he was absent, and he did not pay the amount as directed by the Court. Taking note of the default, the Court passed

an order on 28.10.1992 dismissing the Original Petition.

Learned counsel for the husband, who is the appellant herein, argues that the Court ought not to have passed an order for default on the ground

of non-compliance with the direction to pay interim- maintenance when it was not made a condition precedent in the said order. It is also

contended by him that the husband had been paying regularly the amount of Rs. 200/- per mensem as directed in M.C. No. 225 of 1989 till July,

1992 and in September, 1992 he paid Rs. 400/- representing the amount payable in August and September. From October, 1992 onwards he

had been paying Rs. 600/- regularly and Rs. 800/- in the month of November, 1992. In August, 1993 he paid Rs. 400/- A statement is filed

before us showing the details of payments upto August 1993. Learned counsel is not in a position to say whether any amount has been paid

subsequently.

However, we are of the view that the contentions of the appellant cannot be accepted in this case for the reason that if the original petition is

restored to file it has to be dismissed on the ground that it is barred by res judicata in view of the order passed in O.P. No. 651 of 1985 which

granted restitution of conjugal rights in favour of the wife. In that Original Petition, a copy of which has been filed by the appellant herein as

document No. 4 along with his petition for divorce, the allegation made by the wife is that the husband was guilty of cruelty as he did not allow her

to have physical intimacy and to enjoy marital conjugal bliss. It is also her complaint that the husband was guilty of withdrawing society from her

without any cause therefore .In that petition the appellant remained ex-parte. The wife examined herself as P.W.I. On her evidence which was

accepted by the Court a decree for restitution of conjugal rights was granted.

The grant of such decree would only mean that the case of cruelty and desertion on the part of the husband as alleged by the wife was accepted

by the Court. Even otherwise, it was the duty of the husband to have entered appearance in that proceeding and contested the claim for restitution

of conjugal rights if he wanted to deny the allegations made by the wife. Not having gone done so, it is not open to the husband now to allege

cruelty and desertion on the part of the wife in the present Original Petition. Such a plea is clearly barred by the principle of Section 11 C.P.C. The

order for restitution of conjugal rights was made on 22.4.1989. Admittedly the wife did not join the husband thereafter. Hence there could not

have been any cruelty or desertion on her part thereafter. It is only an antecedent cruelty or desertion which could be the subject matter of the

allegations in the present Original Petition. Such antecedent cruelty and desertion is not available to the husband to be raised as a ground for

divorce as it is barred by the principle of res judicata.

Husband cannot also claim that he is entitled to a decree for divorce on the ground of non-cohabitation for more than a year after the decree for

restitution of conjugal rights was passed. Admittedly the decree for restitution of conjugal rights is obtained by the wife and husband has not

allowed her to join him after the passing of the Said decree. It is not his case in the petition that the wife refused to cohabit with him even though he

was willing to do so. Section 23(1)(a) of the Hindu Marriage Act provides that in a proceeding under the Act, the petitioner cannot take advantage

of his or her own wrong or disability for the purpose of getting relief in that proceeding and the husband who is guilty of not allowing the wife to

join him after the decree for restitution of conjugal right he cannot get a decree for divorce on the ground of non-cohabitation after the passing of

the said decree. In the circumstances, there is no merit in the main Original Petition and there is no need for restoration of the said Original Petition

for trial. In view of the above reasons we dismiss this appeal holding that there is no justification for allowing the same. The parties will bear their

respective costs in the appeal.