Saroj Bala vs Rakesh Kumar

Rekha Mittal, J.—The present appeal has been preferred by the appellant-wife against the judgment and decree dated 6.4.2012, passed by

the District Judge, Amritsar (hereinafter referred as ''the trial Court''), accepting the divorce petition, filed by the respondent-husband, on the

ground of desertion. The marriage between the parties took place on 29.7.1989 at Amritsar, according to Hindu rites and ceremonies. Two

children, a son and a daughter, were born out of the wedlock. The husband filed a divorce petition on 10.4.2010, alleging, inter alia, that attitude of

the appellant-wife is non-cooperative, indifferent and cruel. The wife did not get herself transferred to Jalandhar as per promise made before

marriage. She left the matrimonial home in February, 1990. She was brought back to the matrimonial home as per compromise arrived at between

the parties on 30.6.1991. She again left the company of the husband on 29.9.1991. In June 2004, a Panchayat was convened and again a

compromise was arrived at between the parties and the wife joined the company of her husband, but two weeks thereafter, she left the matrimonial

home along with children and since then, she is living separately from her husband. The husband filed a petition u/s 9 of the Hindu Marriage Act,

1955 (hereinafter referred to as ''HMA'') for restitution of conjugal rights, which was granted on 30.10.2007, but the parties did not resume

cohabitation. The appellant-wife contested the petition, controverting the allegations of cruelty and desertion. She raised a plea that the husband

has contracted a second marriage and the petition has been filed by him to get rid of her.

The controversy between the parties led to framing of following issues by the trial Court:

Whether the respondent has treated the petitioner with cruelty as alleged in the petition? --OPP

Whether the respondent has deserted the petitioner for continuous period of more than two years before filing of the petition?

Whether the petition is estopped by his own act and conduct from filing the petition?

Relief.

The trial Court, after appreciating the evidence on record, rejected the plea of cruelty but held that the wife is guilty of desertion, as the husband

has proved that no cohabitation was resumed for more than a year after passing of the decree for restitution of conjugal rights. To uphold the plea

of the husband, the trial Court, mainly, relied upon the judgments rendered by this Court in Sukhvinder Kaur Vs. Dilbagh Singh, and Atma Ram v.

Smt. Kalawati, 1981 PLR 719, wherein, divorce was granted u/s 13(1A)(ii) of HMA due to failure of the parties to resume cohabitation for the

specified period after the decree of restitution of conjugal rights was passed.

Counsel for the appellant submits that the trial Court has not recorded any finding that the appellant wife is guilty of desertion with an intention to

put an end to marital alliance between the parties. It is further submitted that the respondent-husband has not sought divorce u/s 13(1A)(ii) of the

HMA, therefore, reliance upon judgments passed u/s 13(1A)(ii) of the HMA in favour of the husband is misplaced. It is further argued that the trial

Court has failed to consider that the respondent-husband himself is the guilty spouse and cannot be allowed to take advantage of his own wrong

u/s 23 of HMA. It is also contended that even if it is presumed that the husband sought divorce on the ground of non-resumption of cohabitation

after the decree for restitution of conjugal rights, he has not produced any evidence that he made an attempt for resumption of matrimonial relations

and the appellant refused to resume co-habitation. The trial Court has examined the matter mechanically and rendered its findings without perusing

the pleadings and the evidence. Counsel for the respondent husband has placed implicit reliance upon the reasoning assigned by the trial Court to

contend that no interference in findings recorded by the trial Court is warranted in the light of pleadings and evidence on record.

We have heard Counsel for the parties, perused the records and also considered the matter in detail.

The respondent filed a petition seeking divorce on the ground of cruelty in 1992. His petition for divorce was rejected by the Additional Judge,

Ropar, vide judgment dated 6.12.1996. It appears that the respondent did not challenge the judgment, vide which, his allegation qua cruelty by his

wife were found meritless. The respondent filed a petition u/s 9 of HMA, for restitution of conjugal rights in the year 2004, which was allowed by

the court of Civil Judge (Senior Division), Jalandhar, vide ex parte judgment dated 30.10.2007. Three years, thereafter, in November, 2010, the

respondent filed the present petition, seeking divorce on the ground of cruelty and desertion. The respondent has also averred in regard to passing

of the decree for restitution of conjugal rights in his favour and non-resumption of co-habitation between the parties for more than one year after

passing of the aforesaid decree, but did not specifically pray for grant of relief u/s 13(1A)(ii) of the HMA. As has been mentioned above, the

husband filed a petition for grant of a decree of divorce in the year 1992 and failed in his effort to seek dissolution of the marriage. No explanation

is forthcoming as to what prompted him to file a petition for restitution of conjugal rights after eight years of the passing of the judgment in his earlier

divorce petition. It is surprising that without tendering any reasonable explanation, all of sudden, the husband woke up from his deep slumber and

claimed restitution of conjugal rights. No doubt, the appellant-wife initially appeared in those proceedings, filed her written statement controverting

the allegations of the petition, but later on absented from the proceedings and was proceeded against ex parte and, eventually, an ex parte decree

was passed in favour of the husband. There is nothing on record suggestive of the fact that after passing of decree for restitution of conjugal rights,

the husband sent a copy of the Court order to his wife with a request to resume co-habitation much less any effort for rehabilitation of the wife in

the matrimonial home. The trial Court has mainly relied upon the factum of non-cohabitation for more than a year after passing of the decree for

restitution of conjugal rights while accepting the plea of the husband for divorce on the ground of desertion but the trial Court has completely

overlooked the fact that the husband has not prayed for divorce u/s 13(1A)(ii) of HMA, who, rather has sought divorce on the ground of desertion

u/s 13(1)(ib) of HMA.

In this context, it is necessary to refer in verbatim to averments in Paras 5, 6 and 11 of the petition for divorce, which read as follows:

That the petitioner has instituted a petition u/s 9 of Hindu Marriage Act for restitution of Conjugal rights, which was decreed by the Court of Mr.

Ravinder Singh, Civil Judge, Senior Division, Jalandhar, vide his order dated 30.10.2007 and has ordered the respondent to join the company of

the petitioner within a span of 30 days from the passing of the order but even then the respondent has not joined the company of the petitioner.

Copy of the judgment is attached herewith.

That the petitioner claims dissolution of marriage by decree of divorce on the following grounds:

(a) That the respondent has deserted the petitioner for the last more than continuous two years preceding presentation of the present petition.

That earlier the petitioner filed petition u/s 13 of Hindu Marriage Act on the ground of cruelty, but the same was dismissed by the Court of Mr.

Balbir Singh, Additional District Judge, Ropar, vide its order dated 9.10.1992 and this is the first petition filed by the petitioner on the ground of

desertion against the respondent and except those there is no other litigation with regard to their marriage is pending in any Court of law.

From a perusal of the aforesaid pleadings of the respondent-husband, there remains no dispute that though the respondent-husband has made a

reference to filing of petition u/s 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights and acceptance of that petition, vide order

dated 30.10.2007, passed by the Court of Civil Judge, Senior Division, Jalandhar, he has clearly and categorically prayed for decree of divorce on

the ground of desertion alone. To establish a plea of desertion, a petitioner has to prove two elements; (i) separate living of the parties; and (ii)

animus deserendi. In the instant case, there is neither any plea nor evidence to establish that the wife is living away from the husband with an

intention to put an end to marital ties between the parties.

The appellant-wife is an employee of Guru Nanak Dev University, Amritsar (in short ''GNDU'') and the respondent-husband is an employee of

the Irrigation Department. At the time of marriage of the parties, the respondent was posted at Jalandhar. About 6-7 months thereafter, the

respondent was transferred to Mehatpur and then to Ropar, on promotion. There is nothing on record to suggest that any post was lying vacant in

the Regional Centre of GNDU at Jalandhar, where the appellant-wife could be accommodated. Even otherwise, no useful purpose would have

been served by transfer of the appellant-wife from Amritsar to Jalandhar after her husband was transferred from Jalandhar barely 6-7 months after

marriage of the parties. No such plea has been raised by the husband that either he could not be posted to Amritsar or he made efforts for his

posting to Amritsar, but failed. The conduct of the respondent-husband shows that he never made any effort for his posting to Amritsar. As the

wife is posted in GNDU, Amritsar, there is complete justification in her stay at Amritsar. As the husband never tried for his posting to Amritsar, he

cannot be allowed to blame his wife for her living separately. The matter would have been different, had the husband been posted at Amritsar and

the wife had refused to stay with him. The husband filed a petition for restitution of conjugal rights in 2004. Initially, the wife put in appearance in

the proceedings, but later opted not to contest that case, may be that she was not opposed to resumption of cohabitation between the parties.

The plea of the husband in respect of his willingness to resume cohabitation in the light of his petition for restitution of conjugal rights and a

statement during his cross-examination before the trial Court appears to be lacking in bona fide and honesty. The wife had to litigate under the

Criminal Procedure Code and the Hindu Adoption and Maintenance Act for enforcement of rights of the children to get maintenance allowance

from the husband. This fact shows that the husband had never bothered to send maintenance allowance for her children and to discharge his

obligation towards his family. He never sought his posting to Amritsar to stay with his wife and children. The trial Court has failed to advert to these

important aspects of the matter and was actually misled in recording a finding of desertion in favour of the husband while placing reliance upon the

judgments of this Court rendered in the cases of divorce u/s 13(1A)(ii) of HMA. Indisputably, the husband cannot be allowed to take advantage of

his own wrong or disability even if any of the grounds for granting relief exists. Section 23 of HMA, provides for decree in proceedings and the

relevant Clauses (a) and (d) of Sub-section (1) of Section 23 of HMA are quoted herein below:

Decree in proceedings-(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that:

(a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in Sub-

clause (a), Sub-clause (b) or Sub-clause (c) of Clause (ii) of Section 5 is not in any way taking advantage of his or her own wrong or disability for

the purpose of such relief, and

(b) xxx

(c) xxx

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and

(e) xxx

The conduct of the husband in seeking divorce in 1992 on the allegation of cruelty which did not stand the test of judicial scrutiny coupled with his

long silence of thirteen years in seeking the relief of restitution of conjugal rights along with the fact that he never informed his wife about decree of

restitution of conjugal rights much less making any effort for resumption of cohabitation, leads to an irresistible conclusion that the husband himself

is a guilty spouse, who has no interest in resumption of cohabitation with his wife. The plea of the husband in respect of stay of the parties together

in June 2004 is false. The respondent has raised a plea that the appellant-wife came back to the matrimonial home pursuant to a compromise

arrived at between the parties in June 2004 and after a short stay, again left her matrimonial home along with children. The plea of the respondent

in respect of the wife having come to the matrimonial home or resumption of co-habitation between the parties in June, 2004, is falsified from his

clear admission during his cross-examination wherein he has stated ""it is correct that we are residing separately since 16.12.1991"". The

respondent, in our considered opinion, raised a false plea in regard to cohabitation between the parties in January, 2004 in order to escape from

the delay in approaching the Court for seeking restitution of conjugal rights in a petition filed in 2004 as well as the present petition filed in the year

2010. There is no merit in the contention of the respondent that the parties lived together in the year 2004 after their long separation for the last

about 13 years since 1991, The appellant-wife is quite categoric and firm in her deposition that she is residing at Amritsar separately from her

husband since 16.12.1991. The husband, in our considered opinion, is guilty of concocting a story of their joint stay in June 2004 to create a

platform for seeking relief from the Court and to escape from the implications of Sub-clause (d) of Clause (1) of Section 23 of HMA.

The husband has not sought a decree of divorce u/s 13(1A)(ii) of HMA, therefore, no cause of action has accrued to him by grant of decree of

restitution of conjugal rights. The parties are, admittedly, living separately since December, 1991. The present petition filed by the husband in April,

2010, is hit/barred under Sub-clause (d) of Clause (1) of Section 23 of the HMA that there has been an unnecessary and improper delay in

instituting the proceedings for divorce on the ground of desertion. The trial Court has altogether failed to consider the provisions of Section 23 of

the HMA, while holding in favour of the husband. We would like to clarify that Section 23 of the HMA enjoins upon the Court to examine if the

relief claimed by a petitioner is barred under any of the circumstances envisaged in Sub-clauses (a) to (e) of Section 23(1) of the HMA. In the light

of what has been discussed hereinabove, taken from any angle, the husband is not entitled to a decree of divorce. The trial Court has committed a

grave error in accepting the prayer of the husband. In the result, the appeal is accepted and the judgment and decree passed by the trial Court is

set aside. Consequently, the petition, filed by the respondent-husband, is dismissed, leaving the parties to bear their own costs. Decree sheet be

drawn up accordingly.