HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
D.B. Civil Misc. Appeal No. 1858 / 2014
Shyamsunder S/o Roop Chand Vishnoi, aged 34 years, R/o Near
Beem Hospital, Azad Nagar, Bhilwara Tehsil District Bhilwara.
—-Appellant
Versus
Smt. Jyoti W/o Shyamsunder Vishnoi D/o Shri Harivallabh Vishnoi,
aged 32 years, R/o behind Messy Fargusion Showroom, Gandhi
Nagar, Neemach, Tehsil and District Neemach (MP).
—-Respondent
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For Appellant : Mr. Dhanesh Saraswat for Mr. Ravi Bhansali.
For Respondent : Mr. R.R.C. Gorsia.
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HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR
Judgment
Reserved on 09.05.2018
Pronounced on 11.05.2018
(Per Mr. Vinit Kumar Mathur,J.)
1. 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.
2. 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
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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, 1955 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.
3. 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
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same was rejected on 12.02.2008. Therefore, prior to passing of
the decree dated 15.02.2006 under section 9 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.
4. After completion of the pleadings, learned Family Court,
Bhilwara framed two issues and after appreciating the evidence
available on record rejected the application filed by the appellant
vide order dated 31.10.2014.
5. We have heard learned counsel for the parties and perused
the record.
6. 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
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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.
7. 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
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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.
8. 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
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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.
9. 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.
10. 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.
(VINIT KUMAR MATHUR)J. (PRADEEP NANDRAJOG)CJ.
Anil Singh/19