RCR, 498A, Divorce

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

FAO No.135-M of 2000

Date of Decision: September 13, 2006

Smt.Saroj Rani @ Saroj Kumari (daughter of Sh.Heera Lal) wife of Rajender Kumar, resident of Gali Kumharan, Near Dhola Kuan, Hansi at present posted as JBT Teacher at village Sainipura, Tehsil Hansi, District Hisar……Appellant

VERSUS

Rajender Kumar son of Sh.Laxman Dass, resident of Hansi, Tehsil Hansi, District Hisar……Respondent

BEFORE:- HON’BLE MR.JUSTICE R S MADAN

PRESENT: Mr.DS Bali, Senior Advocate with Mr.Salil Bali,Advocate
for the appellant.

Mr.SS Walia,Advocate
for the respondent.

R S MADAN, J.

This is a wife’s appeal against the judgment and decree dated 10-4-2000 passed by the Additional District Judge, Hisar on a petition under Section 13 (1-A) (ii) of the Hindu Marriage Act vide which the marriage was dissolved by a decree of divorce in favour of the husband- respondent.

The facts of the case are that parties entered into nuptial knot on 12-10-1994 at Hansi according to Hindu rites and ceremonies.

After solemnization of marriage, they stayed together at Hansi for one day only and thereafter the wife went to join her duties as J.B.T. Teacher in FAO No.135-M of 2000 2

Village Dhukra, Tehsil and District, Sirsa. No child was born out of the wedlock. Thereafter, she did not return to the matrimonial home, which led to the filing of the petition by the husband-respondent under Section 9 of the Hindu Marriage Act for restitution of conjugal rights on 10-7-1995 before the Court of the Additional District Judge, Hisar, who accepted the same on 15-9-1997 and passed a decree of restitution of conjugal rights in favour of husband-respondent and against the appellant-wife.

Aggrieved by the impugned decree, the wife had challenged the said order before the High Court in FAO No.143-M of 1997, which came up for hearing before the Division Bench of this Court and the Court observed and passed the impugned order, which is reproduced as under:

“Present: Mr.DV Gupta,Advocate.

Mr.SK Mittal,Advocate.

In pursuance of this Court’s order dated 4.11.1997, parties are present in Court. There is no chance of reconciliation. We have heard learned counsel for the parties and perused the judgment of learned Additional District Judge, Hisar. We hardly find any illegality in the judgment passed by the learned Additional District Judge, Hisar. Dismissed at motion stage.

Sd/-Amarjeet Chaudhary,

Judge

Sd/-V.S.Aggarwal,

Judge”

17.12.1997

FAO No.135-M of 2000 3

It is further the case of the respondent-husband that the appellant failed to comply with the decree of restitution of conjugal rights and did not reside with the petitioner. Therefore, the respondent-husband is entitled to a decree of divorce.

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The said petition was contested by the wife in terms of her written statement wherein she admitted the date of marriage as well as the details of the proceedings under Section 9 of the Hindu Marriage Act.

She further admitted that she filed an appeal against the judgment and decree dated 15-9-1997 before the Hon’ble High Court, which was dismissed by the Division Bench of this Court on 17-12-1997.

It is further averred in the written statement that the present petition has been filed with a view to grab the dowry articles, which were given by the parents of the wife at the time of marriage.

A case under Sections 498A/406 of the Indian Penal Code is pending against the respondent and his family members. During her stay in the matrimonial home, she was taunted by the family members and the respondent for bringing inadequate dowry in the marriage.

Replication was filed and having taken into account the averments made in the written statement, reasserted the case as set up in the petition.

On the pleadings of the parties, the following issues were framed:

“1.Whether the respondent has disobeyed the Court’s decree. If so, its effect? OPP

2.Whether the petition is not maintainable in the present form? OPR

FAO No.135-M of 2000 4

3.Whether the petitioner has no cause of action? OPR

4.Relief.”

Both the parties adduced evidence in support of their contentions raised in the pleadings.

After reappraisal of the findings by the learned Additional District Judge, Hisar, he returned the finding on issue No.1 in favour of the petitioner by observing that there was no resumption of cohabitation after the passing of a decree of restitution of conjugal rights between the parties and no cogent and convincing evidence has been brought on the file warranting that wife did not make a genuine effort to comply with the decree of restitution of conjugal rights and further observed that the petitioner is entitled to a decree of divorce under Section 13 (1-A) (ii) of the Hindu Marriage Act. The remaining issues No.2 and 3 were decided against the wife-appellant for want of any material evidence on the record and thereby decreed the petition of the respondent-husband.

Aggrieved by the impugned judgment and decree of the Courts below, the wife has knocked the door of this Court through the present FAO No.135-M of 2000.

I have heard the learned counsel for the parties.

On behalf of the appellant, it is contended by the learned counsel for the appellant that after the passing of the decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act, the husband- respondent did not file any execution petition before the Court nor made any effort to comply with the decree. It has come in the statement of PW1 Rajinder Kumar that he had sent one Jagdish Bhatia, Ex-Municipal FAO No.135-M of 2000 5

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Commissioner to the house of the wife requesting her to join the matrimonial life with the respondent-husband and beg pardon for her past mis-deeds but said Jagdish Bhatia has not been produced. Therefore, it can be safely inferred that the husband was not willing to comply with the decree of restitution of conjugal rights. The husband cannot be allowed to take advantage of his own wrong in terms of Section 23(1)(a) of the Hindu Marriage Act and the decree granted by the Court under Section 13 (1-A) (ii) of the Hindu Marriage Act is not sustainable. In support of his argument, a reference was made to Hira Chand Srinivas Managaonkar Vs. Sunanda (2001) 4 SCC 125.

On the other hand, it has been contended by the learned counsel for the respondent that the conduct of the appellant throughout has been not to comply with the decree of restitution of conjugal rights as she was not willing to join matrimonial life with respondent-husband. The Hon’ble High Court vide order dated 17-12-1997 has categorically found that the appellant-wife was not willing to join the matrimonial life with the respondent. She did not make any efforts to return to the matrimonial home even after the dismissal of the appeal preferred by her before the Hon’ble High Court. There is a statement of the appellant that she did go to the house of the husband 2-3 times after the passing of the decree but this deposition is beyond pleadings as no such averment has been made in the written statement. Therefore, this part of the statement of the wife is beyond pleadings and was not looked by the trial Court as well. There is statement of Satpal-brother of appellant, who appeared as RW2 to the effect that Panchayat was convened, efforts were made to send the wife to the matrimonial home but respondent-husband refused. However, in the cross- FAO No.135-M of 2000 6

examination, he was unable to state as to when the Panchayat was convened i.e. what was the date and time of convening Panchayat and who were the members of the Panchayat. Thus, the statement of RW2 Satpal was hardly of any significance to corroborate the case of the wife that she made sincere efforts to return to the matrimonial home. Even during the pendency of the appeal before this Court for six years, the appellant-wife never showed her willingness to return to the matrimonial home. If all these factors are taken into consideration, it is a case where the appellant-wife has not complied with the decree of restitution of conjugal rights as well as no cohabitation took place between the parties after the passing of the decree in the year 1995 till date. This was perhaps not possible because of the criminal litigation pending inter se the parties and not meeting of minds.

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In Balwant Kaur Vs. Sohan Singh 1 (1994) DMC 572, it was observed as under:

“The law is well settled that time of one year for the purpose of Section 13(1)(ia) of the Hindu Marriage Act starts running from the date of the original decree. In the

instant case the decree was passed on

28-4-1987 and period of one year had

elapsed on 28-4-1988. The petition under Section 13(1)(ia) of the Hindu Marriage Act was filed on 25-5-1989 i.e. after the expiry of period of one year. There is nothing on the record to show that the appellant ever tried to cohabit with her husband or at any FAO No.135-M of 2000 7

stage had cohabited with him.”

The observation made in judgment of Hirachand’s case (supra) is not attracted to the facts of the present case because it is not the husband, who has been found taking advantage of his own wrong rather it is the appellant-wife, who was not willing to join the matrimonial home with the husband and to resume cohabitation because she was pursuing the criminal litigation against the husband under Sections 498A/406 of the Indian Penal Code.

At no stage of the pendency of petition under Section 9 of the Hindu Marriage Act as well as petition under Section 13 (1-A) (ii) of the Hindu Marriage Act, the wife showed her willingness to return to the matrimonial home. Therefore, the findings recorded by the trial Court on issue No.1 has rightly been returned in favour of the respondent-husband.

The parties did not address any arguments on issues No.2 and 3 because no material on the record has been brought for consideration of the Court.

In view of the above discussion, this appeal fails and the same is hereby dismissed.

( R S MADAN )
September , 2006 JUDGE

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