Case: Arun Vs. Varsha

the relief to which the petitioner is otherwise entitled to. The word wrong envisaged under Section 23 (1) (a) of the Act has to be a wrong of a kind different from a mere conduct of refusing to resume conjugal relationship after passing the decree of restitution of conjugal rights. In our considered opinion, the learned Judge of Family Court, Aurangabad has thus taken a wrong view that refusal of petitioner-husband to take back respondent-wife after institution of divorce proceeding and not taking any steps for restitution of conjugal rights during or after the statutory period is over, would constitute a ground for refusing decree of divorce. There is nothing on record to show that after passing decree of restitution of conjugal rights and before making petition for divorce, the petitioner-husband had created obstruction in complying with the decree by the wife or that the petitioner-husband wanted that the decree should not be complied with so that he may obtain divorce on the basis of said decree for restitution of conjugal rights. In our considered onion, the petitioner-husband is not in any way taking advantage of his own wrong in this case. Thus, we are not inclined to hold that the petitioner-husband has resorted to proceeding for restitution of conjugal rights only as device to obtain the decree of divorce.12. Learned counsel for the petitioner-husband has placed on record copy of judgment and order passed by this Court in Family Court Appeal No. 19 of 2000. On perusal of the same, we find that being dissatisfied with the order passed by the learned Principal Judge, Family Court, Aurangabad in petition No. C-4 of 1996, under Section 18 and 20 of the Hindu Adoption and Maintenance Act 1956, the respondent-wife had preferred the said appeal. This Court by order dated 20.9.2006 dismissed the said Family Court Appeal with observations that the respondent-wife was not eager and willing to go and live with the petitioner-husband. This Court in para 16 of the said judgment has made observations that it was the wife who had withdrawn from society of the petitioner-husband willfully due to her suspicion.During pendency of the said maintenance proceeding, the respondent-wife has made allegations against petitioner-husband that he had illicit relations with his sister-in-law and he was giving monetary help to her in view of their relation. According to her, due to the said reason she was abandoned. On the backdrop of these allegations, this Court in the said appeal No. 19 of 2000 has observed that respondent-wife had moved an application with the office of petitioner-husband reiterating the allegations therein of the petitioner-husband having illicit relations with his sister-in-law. This Court has further observed that while showing desire for reconciliation and at the same time complaining to the superior officers of the petitioner-husband making defamatory allegations clearly shows that there were no bonafides in the offer made by respondent-wife to go and live with the petitioner-husband. It has observed that there was no real desire for reconciliation on the part of respondent-wife.13. It would not be out of place to mention here that in the present case the respondent-wife had filed an application for amendment whereby she wanted to add in her written statement that petitionerhusband has performed second marriage and is also having a child out of the said marriage. It was suggested to the petitioner-husband in his cross examination that he has performed second marriage and has a male child aged about 4 years. It has also suggested to the petitioner-husband in his cross examination that he had brought a lady from Shinde family as his second wife and that she is widow and sister of his friend. We have serious doubts that by making such allegations initially about development of illicit relations with sister-inlaw and in the present divorce proceeding about performing of second marriage, whether respondent wife is really eager and willing to join the company of her husband. On the other hand, respondent-wife remained absent when this Court has referred the matter for mediation. The mediator has informed this Court that even though the notices were issued to the respondent-wife informing her to remain present for mediation, she remained absent and considering the reluctance of the respondent-wife mediation in this case was failed.14. Learned counsel for respondent-wife has placed reliance on the judgment of Honble Supreme Court in the case of Chetan Dass vs. Kamla Devi reported in 2001 Law Suit (SC) 675, wherein the Honble Supreme Court in para 14 has made following observations:-14. Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by Statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well knit, healthy and not a disturbed and porous society. Institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of irretrievably broken marriage as a straight jacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.In this case, the defence of respondent-wife for having justified reason to live away from the husband has been found to be correct. However, in the present case, the facts are altogether different.15. The petitioner-husband has proved that there is no resumption and cohabitation for more than one year or upwards after passing decree of restitution of conjugal rights in his favour . We do not find that the petitioner-husband wanted to take advantage of his own wrong, as provided under Section 23(1) of the said Act. We accordingly answer the point No.1 in affirmative.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. After hearing the parties at length, the following points arise for our consideration and we have recorded our findings thereon for the reasons mentionedhe petitionerhusband isentitled for dissolution of marriage by decree of divorce as provided under section 13(ii) of Hindu Marriage Act 1955In the affirmativeii) What order ... As per finalLearned Judge of the Family Court has failed to consider that inspite of decree of restitution of conjugal rights passed in favour offe had not gone back to theand on the other hand fought the litigation with tooth and nails upto this Court for setting aside the decree of restitution of conjugal rights passed in favour offe did not step up in witness box before the learned Judge of the Family Court, Aurangabad to show that even though she had tried to set aside the decree for restitution of conjugal rights by filing petitions and further proceeding before the appellate forum, she was always willing to join the company of her husband.11. There is no obligation cast by the statute on the party praying for the relief of dissolution of marriage that he/she should call upon other party against whom decree of restitution of conjugal rights has been passed to satisfy the decreebeing so, it cannot be said that the party asking for divorce on such ground has committed wrong if he is not followed the said course. In order to constitute the wrong, within the meaning of Section 23 (1) (a) of the said Act, it has to be something more than mere disinclination of the petitionerhusband to agree to or an offer ofafter filing of divorce petition. The alleged misconduct must be serious enough to justify the denial of the relief to which the petitioner is otherwise entitled to. The word wrong envisaged under Section 23 (1) (a) of the Act has to be a wrong of a kind different from a mere conduct of refusing to resume conjugal relationship after passing the decree of restitution of conjugal rights. In our considered opinion, the learned Judge of Family Court, Aurangabad has thus taken a wrong view that refusal ofto take backafter institution of divorce proceeding and not taking any steps for restitution of conjugal rights during or after the statutory period is over, would constitute a ground for refusing decree of divorce. There is nothing on record to show that after passing decree of restitution of conjugal rights and before making petition for divorce, thehad created obstruction in complying with the decree by the wife or that thewanted that the decree should not be complied with so that he may obtain divorce on the basis of said decree for restitution of conjugal rights. In our considered onion, theis not in any way taking advantage of his own wrong in this case. Thus, we are not inclined to hold that thehas resorted to proceeding for restitution of conjugal rights only as device to obtain the decree of divorce.12.Learned counsel ford has placed on record copy of judgment and order passed by this Court in Family Court Appeal No. 19 of 2000. On perusal of the same, webeing dissatisfied with the order passed by the learned Principal Judge, Family Court, Aurangabad in petition No.of 1996, under Section 18 and 20 of the Hindu Adoption and Maintenance Act 1956, thehad preferred the said appeal. This Court by order dated 20.9.2006 dismissed the said Family Court Appeal with observations that thewas not eager and willing to go and live with theThis Court in para 16 of the said judgment has made observations that it was the wife who had withdrawn from society of thewillfully due to her suspicion.It would not be out of place to mention here that in the present case thehad filed an application for amendment whereby she wanted to add in her written statement that petitionerhusband has performed second marriage and is also having a child out of the said marriage. It was suggested to thein his cross examination that he has performed second marriage and has a male child aged about 4 years. It has also suggested to thein his cross examination that he had brought a lady from Shinde family as his second wifethat she iswidow and sister of his friend. We have serious doubts that by making such allegations initially about development of illicit relations withand in thepresent divorce proceeding about performing of second marriage, whether respondent wife is really eager and willing to join the company of her husband. On the other hand,remained absent when this Court has referred the matter for mediation. The mediator has informed this Court that even though the notices were issued to theinforming her to remain present for mediation, she remained absent and considering the reluctance of themediation in this case was failed.14.Learned counsel forhas placed reliance on the judgment of Honble Supreme Court in thean Dass vs. Kamla Devi reported in 2001 Law Suit (SC) 675, wherein the Honble Supreme Court in para 14 has made followingMatrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by Statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well knit, healthy and not a disturbed and porous society. Institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of irretrievably broken marriage as a straight jacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.In this case, the defence offor having justified reason to live away from the husband has been found to be correct. However, in the present case, the facts are altogether different.15. Thehas proved that there is no resumption and cohabitation for more than one year or upwards after passing decree of restitution of conjugal rights in his favour . We do notd wanted to take advantage of his own wrong, as provided under Section 23(1) of the said Act. We accordingly answer the point No.1 in affirmative.