FIRST APPEAL No.467 OF 1995 Against the Judgment and decree dated 30.05.1995 passed by Shri Nirmalesh C. Lala, the District Judge, Muzaffarpur in Matrimon Case No.6/93. ------- SMT.USHA VERMA, daughter of Sri Mangala Charan Verma, resident of Parao Pokhar lane in Mohalla-Amgola P.S. Quarzi-Mohammadpur, P.O. Munsifi and District-Muzaffarpur at present posted as an Assistant teacher in the Mukherjee’s Seminary through the principal of the School, at Harisabha Chowk in the town P.S., P.O., Munsifi and District - Muzaffapur ------------------------Appellant Versus ASHOK KUMAR VERMA, son of Late Ram Dayal Prasad Verma, resident of vill-Mahisaur P.S. Runisaidpur, District-Sitamarhi, at present posted as Demonstrator, Food and Nutrition Extension Board, Government of India, 39, Shradhanand Marg, Upper Bazar, Ranchi, Munsifi and District – Ranchi. -------------Respondents For Appellant – Mr. Rana Ishwar Chandra For Respondent – Mr. Manoj Kumar Sinha, Naveet Kumar P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO ------------- Mungeshwar Sahoo, J. 1) This appeal is directed against the judgment and decree dated 30.05.1995 passed by Sri N. C. Lala, District & Sessions Judge, Muzaffarpur in Matrimonial Case No.6 of 1993 decreeing the petitioner-respondent (husband) suit and dissolving the marriage of the appellant with the respondent. 2) The petitioner-respondent who was the husband filed the aforesaid Matrimonial Case No. 6 of 1993 against the appellant with a prayer to dissolve their marriage as provided under Section 10 (2) read with Section 13 (1-A) (i) of the Hindu Marriage Act, 1955. 2 3) The petitioner case is that he married the respondent according to Hindu custom on 06.03.1980 and out of the wedlock, one son and one daughter were born. Thereafter, their relation became strained. The further case is that the respondent left the Matrimonial home deserting the petitioner. In spite of repeated efforts, the petitioner could not persuade her to come and then he filed Matrimonial Case No.24 of 1989 seeking a decree for restitution of conjugal rights and in the alternative for a decree for judicial separation for divorce. In that Matrimonial case, he also prayed for custody of the male son. 4) The respondent appear in that case and filed contesting written statement. After trial, the learned Court below on 03.09.1991 passed a decree for judicial separation. The learned Court below also directed to deliver the custody of the son. The petitioner was directed to pay Rs. 250/- per month towards the maintenance of the daughter. 5) The further case is that pursuant to the said decree, the petitioner went to the respondent to take custody of son but the respondent and her parents become vibrant. Then, either accepted the maintenance amount nor deliver the custody of son. Thereafter, the petitioner was regularly sending Rs.250/- per month through money-order. But the respondent is refusing always to receive the same. 6) The further case of the petitioner is that there was no 3 resumption of co-habitation between them for over more than a year after passing the decree of judicial separation for no fault on the part of the petitioner. And, therefore, the marriage has broken. On these grounds, the petitioner prayed that he is entitled to a decree for solution of marriage under the provision of Section 13 (1-A) (i) of the Hindu Marriage Act. 7) The petitioner further stated that the petitioner is not taking advance of his own wrong and there has been no condonation, collusion or connivance. 8) The respondent filed a contesting written statement, however, in her pleadings, she admitted the marriage as alleged by the petitioner and also alleged of filing Matrimonial Case No.24 of 1989 and also admitted the fact of passing a decree for judicial separation. The respondent contended that the relation became strained because of superiority complex of the petitioner and not because of arrogant temperament of the respondent. Because of superiority complex of the petitioner, she was compelled to leave with the matrimonial home. The respondent never tried to bring her back. The petitioner either personally or with anyone never approached for custody of son and never tried to pay Rs.250/- towards maintenance of daughter. The further allegation is that the petitioner never attempted resume co-habitation nor ever he requested the respondent 4 for the same and, therefore, he is not entitled to a decree for dissolution of marriage. 9) The further case of the respondent is that she has filed First Appeal No.8061 of 1991 before the High Court against the decree dated 03.09.1991 passed in Matrimonial Case No.24 of 1989 which is still pending. It is further alleged that she is living separately because of fault on the part of the petitioner. However, she admitted the fact that there had been no resolution of co-habitation after passing the decree dated 03.09.1991. 10) After considering the pleadings of the parties, the learned Court below came to the conclusion that there has been no resolution of co-habitation between the parties after the decree passed for judicial separation on 03.09.1991. This case has been filed on 12.02.1993. The learned Court below also found that the petitioner is not taking advance of his own wrong and, therefore, decreed the case and dissolved the marriage. 11) The learned counsel for the appellant submitted that this judgment passed by the learned Court below is nulky because the Court below had no jurisdiction to entertain the Matrimonial Case in view of Family Courts Act, 1984. The learned counsel relied upon a decision reported in 1993 Vol. II, P.L.J.R. page 100. The learned counsel further submitted that the appellant has filed First Appeal before this Court 5 against the decree for judicial separation and the appeal is still pending and, therefore, the learned Court below could not have passed the present decree. 12) Nobody appears on behalf of the respondent. 13) In view of the above facts, the only points arises for consideration is as to whether the judgment and decree passed by the Court below is sustainable in the eye of law. F I N D I N D S 14) Section 13 (1-A) (i) of Hindu Marriage Act reads as follows “(1A) Either party to a marriage, whenever solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground – (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or” 15) Therefore, the only question to be seen here is that whether there has been resolution of co-habitation between parties after passing the decree for judicial separation. As stated above in the pleadings and also during the course of argument, it is admitted by the appellant that there was no co-habitation between them after passing the decree and still today there has been no co-habitation. The Matrimonial case was filed in the year 1989 and 21 years have passed 6 now. It is admitted position that co-habitation has not resumed and the learned counsel for the appellant admitted that fact for this Court that the appellant is residing separating from the respondent. The learned counsel for the appellant further submitted that the appellant is a teacher in High School. 16) The learned counsel for the appellant submitted that no Execution Case was filed for taking custody of male child. So far this submission is concerned, I do not find any force and only because no Execution Case was filed by the respondent for executing the decree passed in earlier Matrimonial case, it cannot be said that no decree can be passed in the present case. The only provision is that there has been no co-habitation. This fact is admitted. Admitted facts need not be proved. It cannot be said that only because respondent did not request the plaintiff co-habitation and, therefore, he is at fault. Generally, in a matrimonial suit for divorce, a decree for judicial separation is passed by the Court with a view to watch the conduct of the parties for at least one year and to see as to whether within this period, they compromised and their co-habitation resumed or not. No issue have been cost upon any of the party that he or she must attempt during this period to resume the co-habitation. If for one year, no co-habitation is resumed the law as provided under Section 13 (1-A) (i) of the Hindu Marriage 7 Act empowers the Court to grant the decree dissolving the marriage. In the present case, as stated above no resolution of co-habitation since more than one year from passing the decree for judicial separation is admitted. Only because First Appeal is pending before this Court, it will not create a bar for passing a decree in the present Matrimonial case. 17) In view of the above facts and circumstances of the case, the judgment and decree passed by the Court below cannot be interfered with in this appeal. 18) In the result, I find no merit in this appeal and is accordingly dismissed. In the facts and circumstances of the case there shall be no order as to cost. Patna High Court, Patna Dated 8 th April, 2010 AFR/ Sanjeev (Mungeshwar Sahoo, J.)