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Smt. Indu Chourasiya vs Trilok Chourasiya on 10 May, 2018

HIGH COURT OF MADHYA PRADESH AT JABALPUR

First Appeal No. 605/2017

Smt. Indu Chourasiya
Vs.
Trilok Chourasiya

Present : Hon’ble Shri Justice S.K.Gangele, Judge
Hon’ble Smt. Justice Anjuli Palo, Judge
————————————————————————————-
Shri Shyam Yadav, Advocate for the appellant.
Shri Ghanshyam Pandey, Advocate for the respondent.
————————————————————————————-

JUDGMENT

(10/05/2018)

Per : S.K.Gangele, J :-

1. 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.

2. The marriage of the appellant-wife and respondent-

husband 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
2 FA No. 605/2017

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.

3. 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 respondent-

husband pleaded that the appellant practiced cruelty with her.

4. 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.
3 FA No. 605/2017

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 ex-

parte. Thereafter, the case was listed on 06.12.2016,

10.01.2017, 08.02.2017, 20.02.2017, 28.02.2017,

28.03.2017, 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.

5. 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.

6. After considering the aforesaid, the trial Court

awarded the decree of divorce in favour of the respondent-

husband.

4 FA No. 605/2017

7. 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.

8. 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.

9. 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.

10. 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. 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
5 FA No. 605/2017

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.

11. 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.

12. 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:-

6 FA No. 605/2017

“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
7 FA No. 605/2017

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.”

13. 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
8 FA No. 605/2017

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-in-
law, 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
9 FA No. 605/2017

cruelty to the appellant- husband.”

14. 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.

15. 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.

16. 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.

17. No order as to cost.

(S.K.GANGELE) (SMT. ANJULI PALO)
JUDGE JUDGE
vidya

Digitally signed by SREEVIDYA
Date: 2018.05.11 12:48:51
+05’30’

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