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Shyamsunder vs Smt. Jyoti on 11 May, 2018

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
__
For Appellant : Mr. Dhanesh Saraswat for Mr. Ravi Bhansali.

For Respondent : Mr. R.R.C. Gorsia.

__
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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[CMA-1858/2014]

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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[CMA-1858/2014]

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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[CMA-1858/2014]

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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[CMA-1858/2014]

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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[CMA-1858/2014]

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

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