{"id":51875,"date":"2008-10-22T00:00:00","date_gmt":"2008-10-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-asha-rani-vs-madan-gopal-on-22-october-2008"},"modified":"2018-03-26T06:24:25","modified_gmt":"2018-03-26T00:54:25","slug":"smt-asha-rani-vs-madan-gopal-on-22-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-asha-rani-vs-madan-gopal-on-22-october-2008","title":{"rendered":"Smt. Asha Rani vs Madan Gopal on 22 October, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Smt. Asha Rani vs Madan Gopal on 22 October, 2008<\/div>\n
FAO No. 155-M of 1998\n                                                                              -1-\n\n            IN THE PUNJAB AND HARYANA HIGH COURT AT\n                           CHANDIGARH\n\n\n\n                                FAO No. 155-M of 1998\n                                Date of Decision : October 22, 2008\n\n\nSmt. Asha Rani\n                                                              ..........Petitioner\n\n                                Versus\n\n\nMadan Gopal\n                                                              ......Respondent\n\nCORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA\n\nPresent :   Mr. R.S. Mamli, Advocate\n            for the petitioner.\n\n            Mr. Sanjiv Sharma, Advocate\n            for the respondent.\n\n                   ****\n\nVINOD K. SHARMA, J. (ORAL)\n<\/pre>\n
            The appellant wife seeks setting aside of the judgment and<\/p>\n
decree dated 12.8.1998 passed by the learned Addl. District Judge,<\/p>\n
Yamunanagar at Jagadhri allowing a petition moved under Section 13 of the<\/p>\n
Hindu Marriage Act.\n<\/p>\n
            The respondent-husband was married with the appellant at<\/p>\n
Yamunanagar according to Hindu rites and ceremonies about 17 years back.<\/p>\n
They lived together and cohabited as husband and wife. Two children<\/p>\n
namely Kirti and Naveen Kumar, who were of the age of 10 years and 7<\/p>\n
years respectively at the time of filing of petition, were born out of the said
\n FAO No. 155-M of 1998
\n                                                                            -2-<\/span><\/p>\n
wedlock. It was the case of the respondent-husband that on 28.3.1991 the<\/p>\n
appellant went to the house of her parents from where she never returned to<\/p>\n
the matrimonial home inspite of the efforts made by the respondent\/husband<\/p>\n
personally as well as through his relatives and friends.<\/p>\n
            The respondent-husband thereafter moved a petition under<\/p>\n
Section 9 of the Hindu Marriage Act on 25.7.1991, which was dismissed.<\/p>\n
            On 18.4.1992, the appellant-wife filed a petition under Section<\/p>\n
9 of the Hindu Marriage Act, which was decreed by way of ex parte decree<\/p>\n
on 4.11.1993.\n<\/p>\n
            It is the case of the appellant that after passing of the abovesaid<\/p>\n
decree the husband tried to bring the appellant-wife to matrimonial home<\/p>\n
but she did not join him. It is the case of the respondent-husband that inspite<\/p>\n
of passing of decree dated 4.11.1993 there had been no restitution of<\/p>\n
conjugal rights between the parties for a continuous period of more than one<\/p>\n
year.\n<\/p>\n
            Therefore, the respondent-husband sought a decree of divorce<\/p>\n
on the ground that there had been no restitution of conjugal rights for a<\/p>\n
period of more than one year after passing of the decree under Section 9 of<\/p>\n
the Hindu Marriage Act.\n<\/p>\n
            The petition was contested by the appellant and a specific plea<\/p>\n
was taken that due to behaviour of the respondent-husband she was<\/p>\n
compelled to leave the matrimonial home and ultimately she had to file a<\/p>\n
petition for restitution of Conjugal Rights. The husband failed to comply<\/p>\n
with the decree passed by the Court. It was also the claim of the appellant-
\n FAO No. 155-M of 1998
\n                                                                          -3-<\/span><\/p>\n
wife that respondent-husband was estopped from filing the petition in view<\/p>\n
of the bar under Section 23 of the Hindu Marriage Act as inspite of decree<\/p>\n
having been passed under Section 9 of the Hindu Marriage Act the<\/p>\n
respondent-husband intentionally and deliberately failed to comply with the<\/p>\n
decree and, therefore, could not take advantage of his own wrong to get the<\/p>\n
divorce on the basis of said decree.\n<\/p>\n
            On the pleadings of the parties, the learned matrimonial Court<\/p>\n
famed the following issues :-\n<\/p>\n
                   “1.   Whether there has been no restitution of conjugal
\n                         rights between the parties after the passing of the
\n                         decree dated 4.11.1993. If so its effect ? OPP\n<\/p><\/blockquote>\n
                   2.    Whether the present petition is not maintainable
\n                         as alleged in the preliminary objection No.1 of the
\n                         written statement ? OPR\n<\/p><\/blockquote>\n
                   3.    Whether the petitioner is estopped from filing the
\n                         present petition ? OPR\n<\/p><\/blockquote>\n
                   4.    Relief.”<\/p><\/blockquote>\n
            Issues No. 1 to 3 were taken up together. In support of the<\/p>\n
issues framed, respondent-husband appeared as PW-1, who deposed that his<\/p>\n
wife i.e. the appellant obtained decree for restitution of Conjugal Rights on<\/p>\n
4.11.1993 but since then there was no restitution of Conjugal Rights. It was<\/p>\n
denied by the husband-respondent that he did not make efforts to bring the<\/p>\n
respondent with him after passing of the decree rather she refused to come<\/p>\n
and settle with him. The copy of the judgment and decree was also placed<\/p>\n
on record as Ex. PA.\n<\/p>\n
            The appellant appeared as RW-1 where she claimed that after
\n FAO No. 155-M of 1998
\n                                                                         -4-<\/span><\/p>\n
passing of the decree the respondent-husband never came to take her instead<\/p>\n
she tried to join the company of the husband and also visited his house to<\/p>\n
live with him but he refused to do so as he wanted to take divorce. The<\/p>\n
appellant also placed on record copy of the order as Ex. PB passed in<\/p>\n
execution petition on 14.12.1995.\n<\/p>\n
             The learned matrimonial Court observed that the respondent-<\/p>\n
husband had taken a separate room from his parents for residence with his<\/p>\n
wife and, therefore, he could not be said to be at fault.<\/p>\n
             The learned matrimonial Court thereafter recorded a finding<\/p>\n
that even if it was presumed that the appellant was ready to live with the<\/p>\n
husband who was not ready to keep her, the relief of divorce could not be<\/p>\n
denied to the petitioner when the decree dated 4.11.1993 for restitution of<\/p>\n
Conjugal Rights was not complied with till 6.2.1996 when the petition for<\/p>\n
divorce was filed. In support of this finding the reliance was placed on the<\/p>\n
judgment of the Full Bench of this Court in the case of Smt. Bimla Devi<\/p>\n
D\/o Bakhtawar Singh Vs. Singh Raj s\/o Dasonadhi Ram AIR 1977<\/p>\n
Punjab & Haryana 167 wherein it has been held as under :-<\/p>\n
                   “The provisions of S. 23(1)(a) cannot be invoked to
\n                   refuse the relief under S. 13(1-A)(ii) on the ground of
\n                   non-compliance of a decree of restitution of conjugal
\n                   rights where there has not been restitution of conjugal
\n                   rights as between the parties to the marriage for a
\n                   period of one year or upwards after the passing of
\n                   decree for restitution of conjugal rights in proceedings
\n                   in which they were parties. There is no in the Code of
\n                   Civil Procedure by which the physical custody of the
\n FAO No. 155-M of 1998
\n                                                                           -5-<\/span><\/p>\n
                  spouse, who has suffered the decree, can be made over to
\n                  the spouse who obtained the decree for restitution of
\n                  conjugal rights. Thus, merely because the spouse, who
\n                  suffered the decree, refused to resume cohabitation,
\n                  would not be a ground to invoke the provisions of S. 23
\n                  (1)(a) so as to plead that the said spouse is taking
\n                  advantage of his or her own wrong.”<\/p><\/blockquote>\n
            The Court thus came to the conclusion that in view of the law<\/p>\n
laid down by this Court, the respondent-husband was entitled to the decree<\/p>\n
of divorce and consequently all the issues were decided in favour of the<\/p>\n
respondent-husband.\n<\/p>\n
            Mr. R.S. Mamli, learned counsel appearing on behalf of the<\/p>\n
appellant vehemently contends that the impugned order cannot be sustained<\/p>\n
in view of the law laid down by the Hon’ble Supreme Court in the case of<\/p>\n
Hirachand Srinivas Managaonkar V. Sunanda AIR<\/a> 2001 Supreme Court<\/p>\n
1285 wherein the Hon’ble Supreme Court has been pleased to laid down as<\/p>\n
under :-\n<\/p>\n
                  ” All that is provided in S. 13 (1A) is that either party to
\n                  a marriage may present a petition for dissolution of the
\n                  marriage by a decree of divorce on the ground that there
\n                  has been no resumption of cohabitation between the
\n                  parties to the marriage for a period of one year or more
\n                  after the passing of a decree for judicial separation in a
\n                  proceeding to which they were parties or that there has
\n                  been restitution of conjugal rights as between the parties
\n                  to the marriage for a period of one year or more after
\n                  the passing of a decree for restitution of conjugal rights
\n                  in a proceeding to which both the spouses were parties.\n<\/p><\/blockquote>\n
 FAO No. 155-M of 1998
\n                                                                          -6-<\/span><\/p>\n
               The section fairly read, only enables either party to a
\n               marriage to file an application for dissolution of the
\n               marriage by a decree of divorce on any of the grounds
\n               stated therein. The section does not provide that once the
\n               applicant makes an application alleging fulfillment of
\n               one of the conditions specified therein the Court has no
\n               alternative but to grant a decree of divorce. Such an
\n               interpretation of Section will run counter to the
\n               provisions in S. 23 (1) (a) or (b) of the Act. In S. 23 (1) it
\n               is laid down that relief should be granted if the Court is
\n               satisfied that any of the grounds for granting relief exists
\n               and further that the petitioner is not in any way taking
\n               advantage of his or her own ‘wrong’ or disability for the
\n               purpose of such relief. If the provisions in S. 13 (1A) and
\n               S. 23 (1) (a) are read together the position that emerges
\n               is that the petitioner does not have a vested right for
\n               getting the relief of a decree of divorce against the other
\n               party merely on showing that the ground in support of
\n               the relief sought as stated in the petition exists. It has to
\n               be kept in mind that relationship between the spouses is
\n               a matter concerning human life. Human life does not run
\n               on dotted lines or charted course laid down by statute. It
\n               has also to be kept in mind that before granting the
\n               prayer of the petitioner to permanently snap the
\n               relationship between the parties to the marriage every
\n               attempt should be made to maintain the sanctity of the
\n               relationship which of importance not only for the
\n               individuals or their children but also for the society.
\n               Whether the relief of dissolution of the marriage by a
\n               decree of divorce is to be granted or not depends on the
\n               facts and circumstances of the case. In such a matter it
\n               will be too hazardous to lay down a general principle of
\n FAO No. 155-M of 1998
\n                                                                       -7-<\/span><\/p>\n
               universal application.\n<\/p>\n
               The contention that the right conferred by sub-sec. (1-A)
\n               of S. 13 is absolute and unqualified and that this newly
\n               conferred right is not subject to provisions of S. 23 is
\n               fallacious. Prior to the amendment under clauses (viii)
\n               and (ix) of S. 13 (1) the right to apply for divorce was
\n               restricted to the party which had obtained a decree for
\n               judicial separation or for restitution of conjugal rights,
\n               such right was not available to the party against whom
\n               such a decree was passed. By the amendment the right
\n               was conferred on either party. This is the limited object
\n               and effect of the amendment introduced by Act No. 44 of
\n               1964. The amendment was not introduced in order that
\n               the provisions contained in S. 23 should be abrogated
\n               and that is also not the effect of the amendment. The
\n               object of sub-sec. (1-A) was merely to enlarge the right
\n               to apply for divorce and not to make it compulsive that a
\n               petition for divorce presented under sub-sec. (1-A) must
\n               be allowed on a mere proof there was no cohabitation or
\n               restitution for the requisite period. The very language of
\n               S. 23 shows that it governs every proceeding under the
\n               Act and a duty is cast on the Court to decree the relief
\n               sought only if the conditions mentioned in the sub-
\n               section are satisfied, and not otherwise.\n<\/p>\n
               A decree for judicial separation passed at the behest of
\n               the wife, cannot be said to relieve the husband of duty to
\n               cohabit and therefore it is incorrect to say that S. 10 (2)
\n               vests right in the husband to get a decree of divorce.
\n               Section 10 (2) provides that where a decree for judicial
\n               separation has been passed it shall no longer be
\n               obligatory for the petitioner to cohabit with the
\n               respondent, but the Court may, on the application by
\n FAO No. 155-M of 1998
\n                                                                         -8-<\/span><\/p>\n
               petition of either party and on being satisfied of the truth
\n               of the statements made in such petition, rescind the
\n               decree if it considers it just and reasonable to do so. On
\n               a fair reading of the sub-sec. (2) it is clear that the
\n               provision applies to the petitioner on whose application
\n               the decree for judicial separation has been passed. Even
\n               assuming that the provision extends to both petitioner as
\n               well as the respondent it does not vest any absolute right
\n               in the petitioner or the respondent not to make any
\n               attempt for cohabitation with the other party after the
\n               decree for judicial separation has been passed. As the
\n               provision clearly provides the decree for judicial
\n               separation is not final in the sense that it is irreversible;
\n               power is vested in the Court to rescind the decree if it
\n               considers it just and reasonable to do so on an
\n               application by either party. The effect of the decree is
\n               that certain mutual rights and obligations arising from
\n               the marriage are as it were suspended and the rights and
\n               duties prescribed in the decree are substituted therefor.
\n               The decree for judicial separation does not sever or
\n               dissolve the marriage tie which continues to subsist. It
\n               affords an opportunity to the spouse for reconciliation
\n               and re-adjustment. The decree may fall by a conciliation
\n               of the parties in which case the rights of respective
\n               parties which float from the marriage and were
\n               suspended are restored. Therefore the impression that S.
\n               10 (2) vests a right in the petitioner to get the decree of
\n               divorce notwithstanding the fact that he has not made
\n               any attempt for cohabitation with the respondent and has
\n               even acted in a manner to thwart any move for
\n               cohabitation    does   not    flow   from    a   reasonable
\n               interpretation of the statutory provisions.”
\n FAO No. 155-M of 1998
\n                                                                            -9-<\/span><\/p>\n
             The contention of the learned counsel for the appellant by<\/p>\n
placing reliance on the judgment of the Hon’ble Supreme Court is that the<\/p>\n
judgment of the Full Bench of this Court, therefore, cannot hold the field,<\/p>\n
nor the respondent husband was entitled to decree of divorce in the facts of<\/p>\n
the present case as the learned matrimonial Court had granted the decree of<\/p>\n
divorce on the presumption that even if the respondent-husband was at<\/p>\n
wrong still he was entitled to the decree of divorce in view of the law laid<\/p>\n
down by the Full Bench of this Court.\n<\/p>\n
             The learned counsel for the appellant also placed reliance on<\/p>\n
the judgment of this Court in the case of Rakhi Nautiyal Vs. Mohit<\/p>\n
Nautiyal 2007(1) RCR (Civil) 56 wherein this Court was pleased to lay<\/p>\n
down that the husband could not be allowed to take advantage of his wrong,<\/p>\n
it was held that when a party has not complied with the decree of restitution<\/p>\n
of conjugal rights it does not have vested right to get divorce merely on the<\/p>\n
ground that it is entitled to divorce on the plea that there is no cohabitation<\/p>\n
between the parties even after one year of the passing of a decree of<\/p>\n
restitution of conjugal rights.\n<\/p>\n
             It may be relevant to mention here that the parties were called<\/p>\n
where they agreed to reconcile the matter as the appellant showed her<\/p>\n
willingness to go to her matrimonial home from the Court itself. It is not<\/p>\n
disputed that thereafter respondent-husband refused to take her along with<\/p>\n
him.\n<\/p>\n
             Mr. Sanjiv Sharma, learned counsel appearing on behalf of the<\/p>\n
respondent, however, contends that the marriage between the parties has
\n FAO No. 155-M of 1998
\n                                                                          -10-<\/span><\/p>\n
irretrievably broken down as they are living separately for number of years<\/p>\n
and, therefore, the decree of divorce granted in favour of the husband-<\/p>\n
respondent be upheld.\n<\/p>\n
             The reliance in support of this contention has been placed on<\/p>\n
the judgment of the Hon’ble Supreme Court in the case of Naveen Kohli Vs.<\/p>\n
Neelu Kohlu 2006(2) R.C.R. (Civil) 290.\n<\/p>\n
            The reliance was placed on the judgment of this Court in the<\/p>\n
case of Jasbir Kaur @ Pinky Vs. Dr. Harjinder Singh 2008(2) RCR (Civil)<\/p>\n
895 to contend that the continuous long separation by wife without reason<\/p>\n
amounts to cruelty and it will damage the husband both mentally and<\/p>\n
physically. This Court also held that registration of a case under Section<\/p>\n
406\/498-A IPC against husband and relatives which is found to be false<\/p>\n
amounts to cruelty.\n<\/p>\n
            On consideration of the matter I find force in the contention<\/p>\n
raised by the learned counsel for the appellant.<\/p>\n
            The judgment in the case of Jasbir Kaur @ Pinky Vs. Dr.<\/p>\n
Harjinder Singh (supra) is not even remotely connected with the facts of<\/p>\n
the present case as the divorce has been sought by the petitioner under<\/p>\n
Section 13(1)(A)(ii) of the Hindu Marriage Act on the ground that the<\/p>\n
decree of restitution of conjugal rights was not acted upon for a period of<\/p>\n
one year from the date of passing of the decree.<\/p>\n
            Similarly, the judgment of the Hon’ble Supreme Court in the<\/p>\n
case of Naveen Kohli Vs. Neelu Kohlu (supra) can not be of any help to the<\/p>\n
respondent at it is well settled law that a party cannot take advantage of his
\n FAO No. 155-M of 1998
\n                                                                         -11-<\/span><\/p>\n
own wrong. The divorce was granted by the learned matrimonial Court by<\/p>\n
placing reliance on the Hon’ble Full Bench of this Court, wherein it was laid<\/p>\n
down that a decree of divorce can be granted merely on showing that the<\/p>\n
decree of restitution of conjugal rights did not stand complied with even if<\/p>\n
the husband was at wrong.\n<\/p>\n
             This finding cannot be sustained in view of the judgment of the<\/p>\n
Hon’ble Supreme Court in the case of Hirachand Srinivas Managaonkar<\/p>\n
V. Sunanda<\/a> (supra).\n<\/p>\n
             In the present case it is proved that the respondent-husband is<\/p>\n
taking advantage of his own wrong in not complying with the decree of<\/p>\n
restitution of conjugal rights.\n<\/p>\n
             Thus, keeping in view the conditions as envisaged under<\/p>\n
Section 23 of the Hindu Marriage Act and keeping in view the fact that the<\/p>\n
respondent-husband is seeking to take advantage of his own wrong he<\/p>\n
cannot be permitted to seek divorce on the ground of non-compliance of<\/p>\n
decree of restitution of Conjugal rights.\n<\/p>\n
             For the reasons stated above, this appeal is allowed. The<\/p>\n
judgment and decree passed by the learned matrimonial Court is ordered to<\/p>\n
be set aside and the application moved by the husband-respondent under<\/p>\n
Section 13 of the Hindu Marriage Act is ordered to be dismissed with no<\/p>\n
order as to costs.\n<\/p>\n<\/p>\n
October 22, 2008                                ( VINOD K. SHARMA )\n  'sp'                                               JUDGE\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Smt. Asha Rani vs Madan Gopal on 22 October, 2008 FAO No. 155-M of 1998 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH FAO No. 155-M of 1998 Date of Decision : October 22, 2008 Smt. Asha Rani ……….Petitioner Versus Madan Gopal ……Respondent CORAM : HON’BLE MR. JUSTICE VINOD K. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-51875","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nSmt. 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