Case: Arun Vs. Varsha

2. Brief facts, giving raise to the present appeal, are asThe marriage between theand respondentwife was solemnized on 7.6.1983 according to Hindu rites and rituals. They have a son and a daughter out of their marital wedlock. Their marriage is stilland in theon her own accordse ofh kids and started residing with her parents. Consequently,s constrained to file petition for restitution of conjugal rights under Section 9 of said Act bearing H.M.P. No. 66 of 1989. On 17.8.1990, the learned C.J.S.D. was pleased to pass decree in favour of thein the aforesaid proceeding of restitution of conjugal rights and directedo reside and cohabit withIn the aforesaid proceeding,d appeared but failed to contest the petition which ultimately resulted into passing of exparte decree.c) Thefurther contended that despite decree passed,did not resume for cohabitation. Therefore, in pursuance of decree passed in HMP No. 66 of 1989, as aforesaid,had filed petition for dissolution of marriage under Section(ii) of the said Act, bearing No. 79 of 1991. However, the said petition came to be dismissed on the ground thatapplication bearing MARJI No. 35 of 1991 for setting aside the exparte decree was pending. The court has observed that there is no finality of the decree passed for restitution of conjugal rights. On 16.7.1992, the learned IInd Joint C.J.S.D. was pleased to dismiss the said MARJI No. 35 of 1991 filed for setting aside the exparted being aggrieved by the judgment and decree passed in HMP No. 79 of 1991 dated 25.11.1991, preferred an appeal bearing Regular Civil Appeal No. 16 of 1992, which also came to be dismissed on the ground that the appeal against order passed in MARJI No. 35 of 1991 is pending.Thewho was aggrieved by the judgment and order passed in MARJI No. 35 of 1991, preferred an appeal, bearing MCA No. 177 of 1992. However, the said appeal came to be dismissed on 20.4.1996 by the Extra Joint District Judge, Aurangabad.e) After dismissal of application bearing MARJI No. 35 of 1991, as aforesaid,preferred an appeal against the judgment and decree passed in HMP No. 66 of 1989 dated 17.8.1990 with separate application for condonation of delay. The learned Extra Joint District Judge, Aurangabad was pleased to dismiss the application for condonation of delay bearing MARJI No. 217 of 1992 dated 19.4.1997.f) Being aggrieved by the judgment and order passed in MARJI No. 217 of 1992, dated 19.4.1997,preferred Civil Revision Application bearing No. 935 of 1997 before this Court. Initially, this Court was pleased to issue notice before admissionand in themeanwhile, decree passed in HMP No. 66 of 1989 came to be stayed. On the basis of decree passed in HMP No. 66 of 1989, thehad filed an application for dissolution of marriage bearing Petition No. 107 of 1997. Since decree passed in HMP No. 66 of 1989 was stayed by this Court, as aforesaid, the petition bearing No. 107 of 1997 came to be dismissed.g) Thefurther contends that Civil Revision Application No. 935 of 1997 in which interim stay was granted by this Court to the decree passed in HMP No. 66 of 1989, was finally heard and dismissed by this Court by order dated 25.9.2000. Since Civil Revision Application No. 935 of 1997 was dismissed, interim order passed therein also stood vacated and decree passed in HMP No. 66 of 1989 has been restored. Thus, theon the basis of said decree passed in HMP No. 66 of 1989 had filed petition for dissolution of marriage by decree of divorce under section(ii) of the said Act.h) It is thend thathas failed to join his company within one year or thereafter, after passing of decree for restitution of conjugal rights and thusis entitled for dissolution of marriage by decree of divorce, as contemplated under Section 13(ii) of the said Act.ly filed petition No.of 2001 for dissolution of marriage and decree of divorce before the Family Court,fe has strongly resisted the petition by filing written statement at Exh.15. Thehas not denied the factum of marriage and the issues born to the couple out of marital wedlock. However,s denied that she left the matrimonial houseon her ownd left thed kids at her parents home for Dipawali festival and did not turn again to take them back. According tos were made to resume the matrimonial life butdid not permit entry of respondentwife in his house at all. On the other hand,s initiated proceeding for restitution of conjugal rights. According todue to non attendance of matter by the counsel, who was entrusted with the brief, exparte decree of restitution of conjugal rights came to be passed against her. On receipt of notice of petition for divorce filed by thee came to know the decree of restitution of conjugal rights was passed against her. She has challenged said exparte decree by filing proceeding before the superior court but finally failed. She has taken steps to challenge the said decreefe, she sought execution of decree running against her, however,has taken ach decree cannot be executed.The petitionerhusband hasnever tried to honour the judicial verdict of restitution of conjugal rights. On the other hand, petitionerhusband has avoided restitution of conjugal rights and has not permittedo rejoin his company. Thes scuttled all efforts ofg association and company offe further contends that divorce is sought on theee for restitution of conjugal rights is not complied within statutory period of one year and she was unaware and ignorant of passing of such decree against her. Ther bothered to inform her nor took any steps to execute the decree within statutory period. On expiry of said period,e out with the proceeding for divorce claiming non compliance of decree for restitution of conjugal rights. A series of litigations on behalfto get entry in matrimonial home are countered bye petitionerhusband hase to join his company. It is thus contended thatcannot be permitted to take benefit of his own wrong.l) They way of amendment in the written statement further contended thatg subsistence of their marriage, has married for second time. Thes residing with his new wife at Nashik and has become father of a male child out of said relation. It is further contended that to cover up this illegal act, the petitionerhusband is bent upon to get divorce in his favour.m) Thefurther contended that she is ever willing to join the company of her husband; she has never disowned and neglected the petitioner. She unequivocally volunteers to join the company ofIn the circumstances, according topetition is devoid of substance. On all these grounds,d prayed for dismissal of petition withLearned Judge of the Family Court has referred the parties to Marriage Councilor. However, the marriage Councilor by his report at Exh.10 informed that no reconciliation or settlement is possible between the parties.o) On the basis of rival pleadings of the parties to the petition, learned Judge of Family Court has framed issues. Thehas examined himself on oath before learned Judge of Family Court at Exh.21. He was crossexamined byat length. Thedid not step up in witness box. The learned Judge of Family court in para 24 of the judgment has observed that though counsel fororally submitted about filing of pursis, he has not filed evidence close pursis on record and argued the matter on 9.3.2004.p) Learned in charge Judge of Family Court, Aurangabad by its impugned judgment and decree dated 24.3.2004 dismissed the petition with costs. Being aggrieved by the same,has preferred this appeal on various grounds, as set out in the appeal memo.

Reasoning:
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.