Shyamsunder @APPELLANT@Hash Smt. Jyoti

Vinit Kumar Mathur,J

The appellant has challenged the order dated 31.10.2014 passed by learned Judge, Family Court, Bhilwara in Civil Misc. Case No.298/2013,

whereby the application preferred under section 13 (1A) (ii) of the Hindu Marriage Act, 1955 was dismissed.

In nutshell facts necessary for adjudication of present appeal are that the appellant entered into wedlock with respondent Smt. Jyoti on 02.05.1999

at Neemach (MP). The marriage was solemnized as per the Hindu Rites and Customs. After marriage the couple stayed at Bhilwara till

17.11.2001. The respondent Smt. Jyoti preferred an application under section 9 of the Hindu Marriage Act, 1955 in the year 2004 which was decided

by Additional District Judge, Manasa Camp Neemach (MP) vide order dated 15.02.2006. The order dated 15.02.2006 was not enforced for a

period of four years and therefore, a petition under section 13 (1A) (ii) of the Hindu Marriage Act, 1955Â was preferred by the present appellant

stating therein that despite best efforts made by the husband appellant, the decree for restitution of conjugal rights dated 15.02.2006 could not be

executed. He further stated that he was always ready and willing to keep Smt. Jyoti with him but for no fault of him, Smt. Jyoti is not coming and

staying in her matrimonial home.

On the present application being preferred, a reply was filed countering the statement made by the appellant and Smt. Jyoti rebutting the averments

made in the application stated that the appellant was never inclined to keep her in the matrimonial home and was not willing to implement and execute

the decree passed under section 9 of the Hindu Marriage Act, 1955. She stated that she was maltreated and was given beatings in the matrimonial

home by the husband. She gave birth to two children but after two deliveries both did not survive and due to death of two children, she was not in the

fittest of her mental and physical health. She was not taken care of by her husband and in laws. She stated that in the year 2002, the appellant

preferred an application for divorce which was rejected on 25.10.2004 by the District Judge, Bhilwara. Against the same, an appeal being D.B.Civil

Misc. Appeal No.1407/2005 was preferred before this court and the same was rejected on 12.02.2008. Therefore, prior to passing of the decree

dated 15.02.2006 under section 9Â and after passing of the decree, the appellant was continuously prosecuting the case for divorce which

conclusively goes to show that there was no intention on the part of the appellant to execute the decree passed under section 9 of the Hindu Marriage

Act.

After completion of the pleadings, learned Family Court, Bhilwara framed two issues and after appreciating the evidence available on recordÂ

rejected the application filed by the appellant vide order dated 31.10.2014.

We have heard learned counsel for the parties and perused the record.

The counsel for the appellant has vehemently submitted that as per section 13 (1A) (ii) of the Hindu Marriage Act, if there is no restitution of

conjugal rights between the parties to the marriage for a period of one year or upwards after passing the decree for restitution of conjugal rights and

the same having been not disputed factually in the present case, the appellant is entitled for decree of divorce in the present case. He submits that

after decree for restitution of conjugal rights was passed on 15.02.2006 more than four years have elapsed, parties have not resumed conjugal rights

and are living separately. He further submits that despite best efforts made by the appellant, the respondent failed to come to the matrimonial home

and live with the appellant. He admits that as far as rejection of the first petition under section 13 is concerned, the same was filed on the ground of

cruelty and the order dated 25.10.2004 passed by the Family Court, Bhilwara has been affirmed by this court on 12.02.2008. He further submits

that both the parties are not residing together since 18.11.2001. Since there is no fault on the part of the appellant, he is entitled to get decree under

section 13 (1A) (ii) of the Hindu Marriage Act, 1955. He further submits that in view of the judgments of the Hon’ble Supreme Court rendered

in the case of Sanghamitra Ghosh V/s Kajal Kumar Ghosh, (2007) 2SCC220 and Sukhendu Das V/s Rita Mukherjee passed in Civil Appeal No.7186

of 2016 decided on 09.10.2017, marriage has irretrievably broken down because of incompatibility of the matrimonial bond beyond repair, therefore,

the same is required to be dissolved and a decree to this effect may kindly be passed.

On the contrary hand, the counsel for the respondent submits that the respondent Smt. Jyoti tried her level best to cope up with the affairs of the

matrimonial home to keep the bond of marriage intact. She has performed everything possible to preserve marriage between the parties but the

appellant forced her out from the matrimonial home in the year 2001. She had preferred an application under section 9 of the Hindu Marriage Act,

1955 for restitution of conjugal rights. The same was allowed vide order dated 15.02.2006 with a direction to the appellant to keep Smt. Jyoti in the

matrimonial home. Best efforts of the respondent could not fructify in the execution of the decree dated 15.02.2006 as the appellant was hellbent on

taking divorce from the respondent. Failing in the divorce petition on the ground of cruelty in the year 2002 and prosecuting the same till this court

finally rejected the same on 12.02.2008, clearly shows the intention of the appellant that he was never willing to execute the decree for restitution of

conjugal rights. The counsel further submits that during the pendency of the appeal before this Court, the appellant has contracted a second

marriage with Smt. Sumitra and therefore, the appellant is not interested in keeping Smt. Jyoti in the matrimonial home. It is, therefore, sufficiently

proved that no sincere efforts were made on behalf of the appellant to execute the decree passed under section 9 of the Hindu Marriage Act,

therefore, the counsel prays that the appeal is liable to be rejected.

We have considered the submissions made at bar and have closely gone through the record of the trial court. It is an admitted position in the present

case that after 2001, respondent Smt. Jyoti after having left the matrimonial home filed a petition under section 9 of the Hindu Marriage Act, 1955

which was decided in her favour on 15.02.2006. The order dated 15.02.2006 mandated the appellant to keep respondent Smt. Jyoti in the matrimonial

home while establishing conjugal rights and maintain her from his earning. The circumstances, in the present case indicate that the appellant was not

willing to execute the decree for restitution of conjugal rights dated 15.02.2006. Since, it is an admitted position that the appellant had preferred an

application under Section 13 for divorce on the ground of cruelty in the year 2002 and was prosecuting the same till decision in the appeal by this Court

on 12.02.2008, which sufficiently indicates that the appellant was willing to take divorce from the respondent. It is of prudent knowledge that if a

person is prosecuting case for divorce on the ground of cruelty against his wife, there is no question of he having any intention to implement or execute

the decree for restitution of conjugal rights passed by competent Court.

We find force in the arguments of respondent that because the appellant has remarried one Sumitra, he is not inclined to keep ties with respondent

Smt. Jyoti. The chronology of events and evidence on record, therefore, clearly shows that although a period of four years have passed after decree

under Section 9 having been passed, the same is being clearly avoided to be executed by the appellant and there is no effort at all being made by the

appellant to execute or honour the decree passed under Section 9. On the contrary, the efforts for execution made by the respondent were failed by

the appellant. We have no hesitation to hold that the appellant is trying to take advantage of his own wrong. The judgments (supra) relied upon by

the appellant have no application in the present case as the Hon’ble Supreme Court has passed the same on the ground of irretrievably broken

down of marriage under Article 142 of the Constitution of India and the same ground is not available to the appellant under Section 13 of the Hindu

Marriage Act, therefore, we are not persuaded by the same.

In view of whatever stated above, we are not inclined to interfere in the order dated 31.10.2014 passed by Judge, Family Court, Bhilwara. The

appeal, thus, fails and is hereby dismissed.