Smt. Indu Chourasiya vs Trilok Chourasiya

S.K.Gangele, J :-

Appellant has filed this appeal against the judgment dated 14.07.2017 passed by the Principal Judge, Family Court, Jabalpur in C.S.No. 412-

A/2016. By the aforesaid judgment, the trial Court allowed the application filed by the respondent and granted a decree of divorce.

The marriage of the appellant-wife and respondenthusband was solemnized on 30.04.2013 as per Hindu rituals at Jabalpur. The appellant lived

with the respondent for a brief period. She returned to her maternal house on 25.07.2013. It is pleaded by the respondent in the plaint that he had

tried his best to pursue the appellant to live with him. However, she did not come back. Thereafter, respondent-husband filed an application under

Section 9 of the Hindu Marriage Act on 03.03.2014. After receiving notice of the aforesaid application, the appellant-wife lodged FIR on

01.05.2014 against the respondent, his father Ramesh, mother Asha, sister Deepika and uncle Hiralal Chourasiya. On the basis of the aforesaid

FIR, offence under Section 498-A, 506-B, 406 and 34 of Indian Penal Code was registered against the respondent and his family. They were

arrested and thereafter, respondent-husband was released on bail.Criminal Case No. 6115/2014 is pending before the Judicial Magistrate First

Class.Â

The Family Court in Civil Suit No. 2-A/2015 vide judgment dated 15.05.2015 decreed the suit for restitution of conjugal rights and directed the

appellant to live with the respondent. Inspite of that, the appellant did not go to live with the respondent. She filed a suit for grant of maintenance

under Section 125 of Cr.P.C. which is pending. The respondent-husband filed a suit for grant of decree of divorce. The respondenthusband pleaded

that the appellant practiced cruelty with her.

The trial Court issued notice on the suit filed by the respondent. The notice was served on the appellant-wife. Her counsel appeared before the

Trial Court on 09.08.2016 and the Court granted time to the appellant to file reply.

Thereafter, the case was listed on 24.08.2016. On the said date also, time was granted to the appellant. On 03.10.2016, nobody appeared before

the trial Court on behalf of the appellant. The Trial Court directed the appellant to appear on the next date and file written statement. The case

was listed on 02.11.2016. On the aforesaid date, nobody appeared before the trial Court on behalf of the appellant, hence, the case was proceeded

exparte. Thereafter, the case was listed on 06.12.2016,  10.01.2017,  08.02.2017,   20.02.2017,  28.02.2017,  28.03.2017, Â

13.04.2017,  26.04.2017,  11.05.2017, 17.05.2017, 21.06.2017, 03.07.2017, 06.07.2017, 13.07.2017. The trial Court pronounced the

judgement on 14.07.2017.Â

Respondent filed his affidavit before the trial Court in support of the plaint and pleaded the same facts as pleaded in the plaint. He also filed

affidavit of Shri Sunil Kumar Chourasia who is the neighbour of the respondent. He filed documents before the trial Court.Â

After considering the aforesaid, the trial Court awarded the decree of divorce in favour of the respondenthusband.

In the present case, the appellant pleaded that the respondent had given assurance that he would compromise the matter and withdraw the suit,

hence, she did not appear before the trial Court. It is further submitted by the appellant that she came to know about the ex-parte judgment and decree

from the news published in the local newspaper at Sagar.Â

Learned counsel for the appellant has prayed that the ex-parte judgment and decree be set aside. Appellant be given opportunity to contest the

case and the non-appearance of the appellant before the Trial Court is bonafide.Â

Learned counsel for the respondent has submitted that the appellant did not appear before the trial Court deliberately. She did not obey the decree

of restitution of conjugal rights. She lodged FIR against the respondent and his family members. Hence, the trial Court has rightly granted the

decree of divorce in favour of the respondent.Â

Admitted facts of the case are that after service of notice, the appellant did not appear before the Trial Court. She was proceeded ex-parte.Â

Thereafter, case was listed on various dates as mentioned in the foregoing paragraphs of this judgment. After seven months of ex-parte order, the trial

Court pronounced the judgment. Contention of the appellant that the respondent made an assurance that he would withdraw the suit for divorce has

no basis because the appellant did not file any application before the Court or any other Authority that the respondent had given her assurance for

compromise. The appeal was referred to mediation by this Court. The appellant did not appear in the mediation proceedings also.Â

A decree of restitution of conjugal rights was passed by the trial Court against the appellant. She did not obey the aforesaid decree also. She

lodged FIR against the family members of the respondent and a criminal case is pending against respondent.

The Apex Court in case of Saroj Rani Vs. Sudarshan Kumar Chadha reported in (1984) 4 SCC 90 has held as under when a party refuses to live

together inspite of the judgment and decree of restitution of conjugal rights :

“In India it may be borne in mind that conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature

of the statute. Such a right is inherent in the very institution of marriage itself. See in this connection Mulla's Hindu Law-15th Edn. p. 567-Para 443.

There are sufficient safeguards in Section 9 to prevent it from being a tyranny. The importance of the concept of conjugal rights can be viewed in the

light of Law Commission-71st Report on the Hindu Marriage Act, 1955- ""Irretrievable Breakdown of Marriage as a Ground of Divorce, Para 6.5

where it is stated thus:-

Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be

faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and

affection on one's offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such

sharing. It is indicative of a disruption of the essence of marriage-""breakdown"" and if it continues for a fairly long period, it would indicate destruction

of the essence of marriage- ""irretrievable breakdown"". Section 9 only is a codification of pre-existing law. Rule 32 of Order 21 of the Code of Civil

Procedure deals with decree for specific performance for restitution of conjugal rights or for an injuction. Sub-rule (1) of Rule 32 is in these terms:

Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights or for an injunction, has been

passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for

restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an

injunction by his detention in the civil prison, or by the attachment of his property, or by both.

It is significant to note that unlike a decree of specific performance of contract, for restitution of conjugal rights the sanction is provided by court

where the disobedience to such a decree is willful i.e. is deliberate, in spite of the opportunities and there are no other impediments, might be enforced

by attachment of property. So the only sanction is by attachment of property against disobedience of a decree for restitution of conjugal rights where

the disobedience follows as a result of a willful conduct i.e. where conditions are there for a wife or a husband to obey the decree for restitution of

conjugal rights but disobeys the same in spite of such conditions, then only financial sanction, provided he or she has properties to be attached, is

provided for. This is so as an inducement by the court in appropriate case when the court has decreed restitution for conjugal rights and that the court

can only decree if there is no just reason for not passing decree for restitution of conjugal rights to offer inducement for the husband or wife to live

together in order to give them an opportunity to settle up the matter amicably. It serves a social purpose as an aid to the prevention of break-up of

marriage. It cannot be viewed in the manner the learned single judge of Andhra Pradesh High Court has viewed it and we are therefore unable to

accept the position that Section 9 of the said Act is violative of Article 14 or Article 21 of the Constitution if the purpose of the decree for restitution of

conjugal rights in the said Act is understood in its proper perspective and if the method of its execution in cases of disobedience is kept in view.â€​

The Hon’ble Supreme Court in case of K.Srinivas Rao Vs. D.A.Deepa reported in (2013) 5 SCC 226 has held as under with regard to mental

cruelty and lodging false criminal complaint against the family members of the husband by the wife:

“Pursuant to this complaint, the police registered a case under Section 498-A of the IPC. The appellant-husband and his parents had to apply for

anticipatory bail, which was granted to them. Later, the respondent-wife withdrew the complaint. Pursuant to the withdrawal, the police filed a closure

report. Thereafter, the respondent-wife filed a protest petition. The trial court took cognizance of the case against the appellant-husband and his

parents (CC No. 62/2002). What is pertinent to note is that the respondent-wife filed criminal appeal in the High Court challenging the acquittal of the

appellant-husband and his parents of the offences under the Dowry Prohibition Act and also the acquittal of his parents of the offence punishable

under Section 498-A of the IPC. She filed criminal revision seeking enhancement of the punishment awarded to the appellant-husband for the offence

under Section 498-A of the IPC in the High Court which is still pending. When the criminal appeal filed by the appellant-husband challenging his

conviction for the offence under Section 498-A of the IPC was allowed and he was acquitted, the respondent-wife filed criminal appeal in the High

Court challenging the said acquittal. During this period respondent-wife and members of her family have also filed complaints in the High Court

complaining about the appellant-husband so that he would be removed from the job. The conduct of the respondent- wife in filing a complaint making

unfounded, indecent and defamatory allegation against her mother-inlaw, in filing revision seeking enhancement of the sentence awarded to the

appellant-husband, in filing appeal questioning the acquittal of the appellant-husband and acquittal of his parents indicates that she made all attempts to

ensure that he and his parents are put in jail and he is removed from his job. We have no manner of doubt that this conduct has caused mental cruelty

to the appellant- husband.â€​

On the basis of principles laid down by the Hon’ble Supreme Court, in our opinion, the trial Court has rightly held that the appellant practiced

cruelty with the respondent because she did not live with the respondent after passing of decree of restitution of conjugal rights and has prevented the

respondent from cohabitation without any sufficient cause. She lodged criminal complaint against the family members of the respondent. Apart from

this, without any reason, she did not appear before the trial Court.Â

Looking to the aforesaid facts of the case, in our opinion the trial Court has rightly passed the decree of divorce. We do not find any merit in this

appeal. It is hereby appeal dismissed.Â

Findings recorded in this judgment would not have any prejudice on the proceeding in regard to grant of maintenance instituted by the appellant

under Section 125 of Cr.P.C.

No order as to cost.