Smt. Anjana Singh vs Shyam Singh

This appeal has been filed by the appellant-wife under Section 28 of the Hindu Marriage Act, 1955 against the judgment and decree dated

27.10.2014 passed by First Additional District Judge, District Burhanpur in HMA No.30/2011 whereby a decree of dissolution of marriage

between the parties under Section 13 of the Hindu Marriage Act, 1955 has been passed.

It is not in dispute that the appellant and respondent are husband and wife. Their marriage was solemnized on 25.11.2003 according to Hindu

religion and rites. They have a daughter aged about 7 years who is residing with the appellant.

The divorce petition has been filed by the respondenthusband against the appellant-wife on the grounds that from beginning of marriage the

appellant-wife insulting him and used to quarrel without any reason. She used to go frequently to her parent''s house and stayed there. When the

respondent-husband objected the appellant-wife, she used to pressurize him to leave his family and to live at her maternal house. The respondent-

husband is the only son of his parents. He has been mentally harassed by his wife. The wife deserted her husband and is residing separately for

more than last two years with her parents without any sufficient reason. Hence, the respondent-husband has filed petition under Section 13(1)(ia)

of the Hindu Marriage Act, 1955 for divorce.

Appellant-wife filed a written objection and pleaded that the respondent has never kept her happy and used to beat her. The respondent went

to Indore for doing service. He has not kept the appellant with him and the appellant-wife used to live with his parents at Nepanagar. The

respondent-husband threatened to give her divorce. On 18.03.2009 the respondent-husband has beaten and ousted her from his house. Matter

was reported by the appellant-wife to Pariwar Paramarsh Kendra. The appellant has also filed a complaint before J.M.F.C, Sanawad under

Domestic Violence Act on 21.01.2013. An order for maintenance was passed in favour of the appellant. Thereafter, respondent has filed petition

under Section 9 of the Hindu Marriage Act before the First Additional District Judge, Burhanpur which has been dismissed on 01.03.2011.

It was held by the trial Court that the respondent-husband was ill-treated and deserted by the appellant. The trial Court allowed the application

under Section 13 of the Hindu Marriage Act and declared that the marriage solemnized between the parties on 25.01.2003 has been dissolved

from 27.10.2014.

The appellant-wife challenged the aforesaid findings on the grounds that the trial Court has lost the sight that after the dismissal of petition under

Section 9 of the Hindu Marriage Act bearing no.35/2009, the subsequent petition has been filed under Section 13(1)(ia) of the Hindu Marriage

Act on the same facts and grounds as in the former petition under Section 9 of the Hindu Marriage Act, which involved directly and substantially

same issues between the same parties, hence, it is barred by res-judicata. The trial Court has not considered the facts and circumstances involved

in the case. The trial Court wrongly passed the impugned judgment and decree in favour of the respondent-husband which is liable to be set aside.

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

It is not in dispute that the appellant-wife is residing separately from her husband since 19th March, 2009.

Earlier, a petition for restitution of conjugal rights was filed by the respondent against the appellant, which was dismissed by the Ist Additional

Judge, Burhanpur. It was held that the respondent claimed for financial aid from the parents of the appellant for separate residence at Indore. He

failed to establish the allegation against the appellant that she harassed him with her cruel behavior. It was also found in earlier petition that the

respondent harassed the appellant, hence, she was residing separately. After failure in above proceedings, the respondent filed a divorce petition

on the same grounds. Therefore, in our considered view this petition is not liable to be allowed.

The respondent himself admitted that he has been working at Sukhaliya, Indore since 2003 and residing there alone. We find that the

respondent did not make any effort to live with appellant. In case of Subodh Gupta Vs. Neetu Gupta reported in AIR 2017 Chh. 196, it has been

held as under:-

In Bipinchandra Jaisinghbai Shah Vs. Prabhavati {AIR 1957 SC 176}, history and development of a concept of ""desertion"" as a

cause of action for grant of decree of divorce has been spelt out. Quoting English authors and Halsbury''s Laws of England, the

Supreme Court observed thus in para-10:-

(10) What is desertion? ""Rayden on Divorce"" which is a standard work on the subject at p.128 (6th Edn.) has summarised the

caselaw on the subject in these terms:- ""Desertion is the separation of one spouse from the other, with an intention on the part of the

deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other

spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party"".

There is one more aspect of the case on which the appellant has pressed for decree of divorce on the ground of irretrievable

breakdown of marriage. However, suffice it would be to refer to the Supreme Court''s decision in the matter of Neelam Kumar

(Supra) wherein it is held that if the party to marriage, by his own conduct brings the relationship to the point of irretrievable

breakdown, he/she cannot be allowed to seek divorce on the ground of breakdown of marriage. That would simply mean giving

someone the benefit of his/her own mistake. The Supreme Court also referred to its earlier decision in the matter of Vishnu Dutt

Sharma Vs. Manju Sharma {(2009) 6 SCC 379}wherein it is observed that irretrievable breakdown of marriage is not a ground for

divorce as it is not contemplated under Section 13 and granting divorce on this ground alone would amount to adding a clause therein

by a judicial verdict, which would amount to legislation by Court. Even otherwise, in some cases, the Supreme Court has allowed

decree on the ground of irretrievable breakdown of marriage by exercising power under Article 142 of the Constitution of India and

not as a ground for divorce under Section 13.

Learned trial Court has lost sight of these facts. Even then the learned trial Court granted a decree in favour of the respondent under Section

13(1)(ia), after dismissal of the petition under Section 9 of the Hindu Marriage Act. Therefore, the impugned judgment is liable to be set aside.

Hence, appeal filed by the appellant is allowed.