Whether alternative relief of divorce can be claimed in petition for restitution of conjugal rights?

Alternative relief of divorce is maintainable is petition for restitution of conjugal rights.Said relief can be claimed by amending petition.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO.308 OF 1998
APPELLANT:
Smt.
Uttara
Praveen
Thool,

-VERSUS-
Praveen S/o Bhanudas Thool,
CORAM: B.P.DHARMADHIKARI AND A.S. CHANDURKAR,JJ.

DATE OF PRONOUNCING THE JUDGMENT:
6TH
JANUARY,2014.
Citation; 2014(3) ALL MR 721 Bom
Read original judgment here; click here

1.
The
appellant
–
wife
has
preferred
the
present appeal under Section 19 of the Family Courts
Act
1984
being
aggrieved
by
the
judgment
dated
8-6-1998 passed by the learned Judge, Family Court,
Nagpur whereby the petition filed by the respondent –
husband for grant of divorce has been allowed. Herein
after the wife will be referred to as the appellant
and
the
husband
will
be
referred
to
as
the
respondent.

The
marriage
between
the
parties
was
2.
solemnized on 2-12-1992. Out of said wedlock, the
appellant gave birth to a son on 27-8-1993. According
to the respondent, after the birth of said child the
appellant did not return to her matrimonial home for
no
justifiable
reason.
Hence,
on
22-12-1994,
the
respondent preferred Hindu Marriage Petition under
Section 9 of the Hindu Marriage Act 1955 (hereinafter
refer to as the said Act) bearing No.364 of 1994 for
said

restitution of conjugal rights.
proceedings,
the
During pendency of
respondent
amended
his
pleadings and in the alternate sought a decree for
divorce on the ground of mental cruelty on the basis
of desertion by the appellant. The parties went to
trial and on the basis of the material on record, the
Family Court, Nagpur by judgment dated 8-6-1998 was
pleased to allow the petition filed by the respondent
and thereby passed a decree of divorce on the ground
of cruelty.
3.
Before
considering
the
challenge
to
the
aforesaid decree, it would be necessary to note the
rival pleadings of the parties and also the other
material on record on the basis of which the impugned
decree has been passed. In the petition filed under
Section 9 of the said Act, it was pleaded by the
respondent that from the second month of the marriage
itself, the appellant was requesting for grant of

divorce. It was stated that the appellant disliked
the idea of a joint family and hence, the respondent
living
separately
from
his
mother
and
started
brother. It is further pleaded that after the birth
of their son on 27-8-1993, the appellant's father
took her to their native place and since then for no
justifiable reason, the appellant had deprived the
respondent of her company and had failed to fulfill
her obligation as wife. It was further pleaded that

on 23-12-1993, the appellant along with her father,
her uncle and few other persons came in a Jeep to the
father
respondent's place. After some talks, the appellant's
informed
possible
for
the
the
respondent
appellant
that
to
it
live
was not
with the
respondent. Despite efforts through mediators, the
appellant did not return to the matrimonial home and
hence,
on
22-12-1994
restitution
of
aforesaid
conjugal
rights
petition
was
filed
seeking
by
the
respondent.
4.
The appellant filed her written statement
below Exh.14. She denied the averments made in the
petition filed by the respondent. According to the
appellant, the respondent used to treat her cruelly
and
keep
her
without
food
for
2
to
3
days.
The
respondent used to beat her and abuse her. It was
further pleaded that in July, 1993, the respondent
had called the appellant's mother and had demanded

from
her
and
threatened
that
if
said
Rs.4,000/-
demand was not met, the mother should take back her
It is stated that on 17/18-8-1993, despite
intervention
of
Panchas,
daughter.
the
respondent
did
not
listen to them due to which the appellant was forced
to return to her father's home. Despite a message
being
given
about
the
birth
of
a
child,
the
respondent did not accept the sweets that were sent
that
was
held
for
naming
the
child.
ig
ceremony
did not attend the
in that regard. The respondent
Ultimately, on 23-12-1993 though the appellant had
returned to the respondent's house along with their
child, the appellant was not permitted to enter the
house in the
presence of
various
persons.
It
was
further pleaded that on 2-3-1994, the appellant had
filed
proceedings
for
grant
of
maintenance
under
Section 125 of the Code of Criminal Procedure and
with a view
present
to
defeat the appellant's
proceedings
for
restitution
right,
of
the
conjugal
rights was filed. The appellant, therefore, prayed
for dismissal of the proceedings.
5.
During pendency of the proceedings before
the Family Court, the respondent moved an application
below Exh.16 to amend the petition by deleting the
prayer
for
substituting
restitution
the
same by
of
conjugal
the
prayer
rights
for
grant
and
of
divorce. The learned Judge of the Family Court by

20-5-1996
application
another
by
disposed
directing
application
the
for
the
aforesaid
respondent
seeking
alternate relief.
On
of
dated
to
divorce
file
as
an
order
25-4-1996,
the
marriage
Counselor
submitted his report below Exh.24 in which he opined
that amicable settlement between the parties was not
possible.
aforesaid
below
Exh.28
ig
application
Subsequently, the respondent moved another
petition.
By
for
amendment
the
application,
said
of the
respondent made another prayer that in case it was
not possible to grant the relief of restitution of
conjugal rights, a decree of divorce on the ground of
mental cruelty be passed. The aforesaid application
was filed on 13-6-1996. After considering the reply
of
the
Judge
appellant
of
19-10-1996
the
filed
below
Family
allowed
Exh.32, the
by order
Court
the
aforesaid
learned
application
dated
for
amendment holding that the respondent was entitled to
make
an
alternate
prayer.
Accordingly,
the
proceedings as filed stood amended in view of the
aforesaid order. In view of addition of the prayer
for grant of divorce, the proceedings were renumbered
as Petition No.A/604/1996. The appellant amended her
written statement and opposed the alternate relief
sought by the respondent.

The
respondent
examined
himself
below
6.
Exh.60, his brother-in-law – Manishankar Patil below
Exh.69 and another brother-in-law Vitan Borkar below
Exh.70. The appellant examined herself below Exh.74,
her
father
Manohar
Shevde
below
Exh.83,
Shiodas
Betal, her maternal uncle and one Ashok Naranje below
Exh.85. On the basis of the aforesaid pleadings and
the
evidence
led
by
the
respective
parties,
the
learned Judge of the Family Court recorded a finding

that the appellant had treated the respondent with
cruelty, that she had withdrawn from the respondent's
society without any reasonable cause and hence, the
respondent was entitled for a decree of divorce on
the ground of cruelty. Thus, by judgment dated 8-6-
1998, the marriage between the parties was dissolved
by a decree of divorce on the ground of cruelty.
7.
On behalf of the appellant – wife, it was
urged by her learned Counsel Mrs. V. Thakre that the
Family Court erred in granting the decree for divorce
on
the
ground
of
cruelty.
It
was
submitted
that
though initially the petition was filed under Section
9 of the said Act for restitution of conjugal rights,
no issue in that regard was framed while deciding the
said proceedings. It was submitted that by seeking
restitution of conjugal rights, the respondent had
condoned all earlier incidents that had occurred and
hence, on said count, a decree for divorce could not

have been passed. It was further submitted that in
proceedings for restitution of conjugal rights, there
could not be a prayer for grant of divorce on the
ground of cruelty as such pleadings were mutually
destructive and prayers were opposed to each other.
It was further submitted that though the statutory
period of two years as contemplated under Section 13
of
said
Act
was
not
complete
when
the
initial
proceedings were filed, by permitting the petition to
ig
be amended for seeking the relief of divorce, the
respondent had got over aforesaid statutory bar. In
of
the
aforesaid
submission,
the
learned
support
Counsel for the appellant relied upon the following
judgments.
AIR 2006 Himachal Pradesh 33, Baldev Raj v.
[1]
Smt. Bimla Sharma.
[2]
AIR 212 Rajasthan 8, Reema Bajaj v. Sachin
Bajaj.
[3]
2000(4) Mh.L.J. 244, Sanjay Chandrakant
Mehta
vs. Malaben Sanjay Mehta.
[4]
(2005)9 Supreme Court Cases 600, Uma Parekh
alias Pinku versus Ajeet Pareek Alias
Govind Pareek and others.
[5]
AIR 1988 Supreme Court 839, Tejinder Kaur
v.
Gurmit Singh.
[6]
AIR 1990 Bombay 84, Smt. Smita Dilip Rane
v.
Dilip Dattaram Rane.

[7]
AIR 1989 Supreme Court 1477, Smt. Lata
[8]
Kamat
v. Vilas.

AIR 2009 Andhra Pradesh 54, Lakkaraju
Pradma Priya v. Lakkaraju Shyam Prasad.
[9]
AIR 1975, Supreme Court 1534(1) Dr. N. G.
Dastane v. Mrs. S. Dastane.
Respondent.
On the other hand, Mrs. R. Sirpurkar, the
appearing
husband supported
for
the
Counsel
the
impugned
respondent
judgment.
ig
learned
It
–
was
submitted that though initially the respondent had
restitution
of
conjugal
rights
by
filing
sought
aforesaid proceedings under Section 9 of the said
Act, in view of the stand of the appellant before the
Marriage Counselor that she was not ready to reside
with the respondent and in view of absence of any
justifiable cause assigned by the wife for living
separately
from
her
husband,
the
respondent
was
compelled to seek divorce on the ground of cruelty.
It was submitted that though various allegations were
made by the appellant in her pleadings as regards
ill-treatment
respondent,
leading
and
the
any
cruelty
same
cogent
on
were
the
not
evidence.
part
of
substantiated
It
was
urged
the
by
that
failure to frame the issue as regards the restitution
of
conjugal
rights
did
vitiating the impugned
submitted that the
not
have
judgment.
parties
were
the
It
effect
was
living
of
further
separately

since August 1993 i.e. after the birth of the child
and hence, the Family Court was justified in passing
the decree for divorce. It was further submitted that
though the appellant had pleaded that there was a
demand for dowry, no evidence in that regard was led
by
the
appellant.
On
the
contrary,
it
was
the
appellant who was guilty of deserting the respondent
for no justifiable cause and the same, therefore,
the
respondent
for
entitled
grant
of
divorce
on
further

account of desertion resulting in cruelty. It was
urged
there
was
an
irretrievable
marriage and both parties having been
breakdown of
that
separated for almost
20
years, they
could
not
be
expected to live together as husband and wife. By
an
filing
submitted
additional
that
the
affidavit
respondent
on
record,
had
it was
contracted the
second marriage on 30th of November 1998. The learned
Counsel
for
the
respondent
has
relied
upon
the
following judgments in support of her submissions:
[1]
AIR 1992 Madhya Pradesh 105, Smt. Bhavna
Adwani v. Manohar Adwani.
[2]
[1999 (2) Civil JJ 65] Smt. Shashi Shah V.
Kiran Kumar Shah.
[3]
1992 Mh.L.J. 997, Kishorilal Govindram
Bihani vs. Dwarkabai Kishorilal Bihani.
[4]
II (1991) DMC 326 Sanyogta Verma versus
Vinod
Verma.
[5]
II(1985) DMC 329, Suren Chandrakant Shah

[6]
versus Rita Suren Shah.
2012(7) ALL MR 282, Smt. Bhawna w/o
Vijaykumar Sakhare vs. Vijaykumar S/o
Tarachand Sakhare.
[7]
[2006(1) Mh.L.J., Durga Prasanna Tripathy
Arundhati Tripathy.
[8]
vs.
II (2006) DMC 107 (DB)Iffath Jamalunnisa
versus Mohd. Suleman Siddiqui.
2007(3) Mh.L.J. 1, Rishikesh Sharma vs.
Saroj
[9]

Sharma.
[10] (2007) 4 Supreme Court Cases 511, Samar
Ghosh
Vs. Jaya Ghosh.
[11] (2007) 4 Supreme Court Cases 548, Masooda
Parveen Versus Union of India and others.
She has, therefore, sought dismissal of the aforesaid
appeal.
8.
in view
After hearing the respective Counsel and
of
the
material
on record, the following
points arise for determination.
(1) Whether failure on the part of the Family
Court to frame the issue pertaining to the
claim
for
restitution
of
conjugal
rights
has resulted in vitiating the judgment?
(2) Whether
sought
under
a
as
decree
a
Section
for
relief
9
of
divorce
in
a
the
could
petition
said
Act
be
filed
for
restitution of conjugal rights?

(3) Whether on an amendment permitting a prayer
for grant of divorce in such proceedings
being granted, the same relates back to the
date of filing of the proceedings?
(4) Whether
decree
for
divorce
needs
to
be
granted on the ground that there has been
an irretrievable breakdown of the marriage?
(5) Whether the respondent is entitled for a
decree of divorce on the ground of cruelty?

(6) What relief?
As to point no.1:
9.
The
respondent
had
filed the present proceedings under Section 9 of the
said
Act
seeking
restitution
of
conjugal
rights.
In paragraph nos.6,9 & 10 of the petition, he had
made
various
assertions
in
support
of
aforesaid
relief. In reply thereto, the appellant had denied
the claim as made by the respondent. This, therefore,
gave rise to an issue pertaining to the claim of the
respondent for restitution of conjugal rights. Such
issue, however, was not framed by the learned Judge
of the Family Court. It is, therefore, necessary to
consider
whether
failure
to
frame
said
issue
has
resulted in vitiating the impugned judgment.
In this regard, the provisions of Section
99 of the Code of Civil Procedure may be noticed.
Under
Section
substantially
99,
no
varied
on
decree
can
account
of
be
reversed
any
defect
or
or

in
any
proceedings
not
affecting
the
irregularity
merits of the case of the jurisdiction of the Court.
Though failure to frame a issue that arises on the
basis of the pleadings of the rival parties would
amount
to
an
error
being
committed
by
the
Trial
Court, that by itself will not be a ground to reverse
the impugned judgment. It is necessary to note here
that
during
pendency
of
the
proceedings,
the
respondent had made another prayer seeking grant of

divorce on the ground of desertion. Such prayer was
permitted to be added. The parties thereafter went to
and
contested
the
trial
proceedings.
While
the
respondent led evidence for grant of divorce, the
appellant
led
respondent
Therefore,
evidence
was
the
not
to
demonstrate
entitled
prayer
for
for
divorce
that
said
was,
the
relief.
in
fact,
contested as being the main relief sought in said
proceedings.
pertaining
rights
Further,
to
that
claim for restitution
framed
was
respondent,
assuming
and answered
the
same
would
not
the
of
issue
conjugal
against
have
the
resulted
in
dismissal of petition in view of the other prayer in
the proceedings. Similarly, the nature of evidence
for seeking the relief of restitution of conjugal
rights
and
for
seeking
divorce
on
the
ground
of
desertion would naturally be of a distinct nature.
Such
evidence
circumstances,
could
not
therefore,
be
overlapping.
it
is
clear
In
that
these
the

parties have contested the proceedings with regard to
the prayer for grant of divorce, mere failure on the
part of the learned Judge of the Family Court in
framing the issue as regards restitution of conjugal
rights would not have the result of vitiating the
impugned judgment. In any event, the appellant before
commencement
grievance
of
the
before
evidence
the Family
did
Court
not raise
that the
any
issue
pertaining to restitution of conjugal rights had not
ig
been framed. Hence, taking an overall view of the
matter, we find that the failure on the part of the
claim
in
framing
Family Court
for
restitution
the
of
issue
conjugal
as
regards
rights
has
the
not
resulted in vitiating the impugned judgment. Point
no.1, therefore, stands answered accordingly.
10.
As
to
Point
No.2:
This
takes
us
to
consider the next point as to whether a decree for
divorce could be sought as an alternate relief in a
petition filed for restitution of conjugal rights.
While a petition for restitution of conjugal rights
is required to be filed under Section 9 of the said
Act, a petition seeking divorce is required to be
filed on the grounds stipulated in Section 13 of the
said
Act.
In
proceedings
the
were
present
filed
conjugal rights.
By
aforesaid proceedings,
case,
merely
for
initially,
the
restitution of
subsequently amending the
the for
relief
grant
of

divorce on the ground of cruelty was sought to be
made. As noted above, the requirements of Section 9
and Section 13(1)(i-b) of the said Act are distinct.
According to the learned Counsel for the
appellant,
the
relief
of
restitution
of
conjugal
rights cannot go hand in hand with the relief of
divorce. Both reliefs were diametrically opposite.
In support of the aforesaid submission, the learned
Pradesh
High
Court
in
Baldeoraj
(Supra).

Himachal
Counsel for the appellant relied upon the decision of
In said judgment, the alleged desertion took place on
for
19-2-1993. On 31-3-1993 the husband filed a petition
restitution
of
conjugal
rights
and
in
the
alternate, sought a decree for divorce on the ground
of desertion. In that context, it was observed that
as the alleged desertion took place on 19-2-1993 and
the petition was filed on 31-3-1993, no petition for
divorce on the ground of desertion could have been
entertained as the desertion itself was for a period
of
less
than
two
years.
In
that
context,
it
was
observed that the prayer for grant of divorce itself
was not tenable in law. The aforesaid judgment does
not assist
the
appellant
in
view
of
its
peculiar
facts. In the present case, the prayer for grant of
divorce has been made by way of amendment on the
basis of prior desertion of two years. Hence, the
ratio in the aforesaid case is not applicable to the
case in hand.

The learned Counsel for the appellant has
then relied upon the decision of the Hon'ble Apex
Court in the case of Uma Parekh (supra).
aforesaid
decision
reveals
that
Perusal of
though
the
proceedings were for restitution of conjugal rights,
an alternate relief was being sought without there
being any specific pleadings or without invoking the
proceedings
transfer
of
therein
related
ig
The
powers of the Court under Section 13 of the said Act.
the
matrimonial
to
case.
a
claim
The
for
aforesaid
11.
decision has no application to the case in hand.
learned
On
the
Counsel
permissible
to
other
for
seek
hand,
the
the
according
respondent,
relief
of
to
it
divorce
the
was
in
a
petition for restitution of conjugal rights. Reliance
in this regard was placed on the decision of the
Madhya Pradesh High Court in Bhavna Adwani (supra).
In aforesaid decision, it was observed that there was
no legal prohibition under the said Act for filing
proceedings for restitution of conjugal rights or in
the alternate, for a decree of divorce on the ground
of desertion. It was held that if at the stage of
filing of the proceedings, the petitioner had sought
restitution of conjugal rights and in the alternate,
if the other
party
continued
to
refuse to
reside
together, the marriage could be dissolved if a case

desertion
was
made
out.
The
ratio
of
the
for
aforesaid decision, therefore, applies to the facts
of the present case.
The decision of the Allahabad High Court
in Binod Kumar (Supra) is also pressed into service.
In
the
said
case,
the
Family
Court
permitted
conversion of proceedings for restitution of conjugal
rights to a petition for divorce. It was Court held
provisions
The present
of
Section

the
that such course was permissible by taking support of
case
being
23A
of
the
one for grant
said
of
Act.
separate
relief and there being no question of conversion of
the proceedings as originally filed, the aforesaid
judgment has no application to the case in hand.
In Kishorilal (supra) in proceedings for
restitution of conjugal rights, an alternate plea for
divorce on the ground of desertion was made.
On this
being objected in appeal, the Division Bench of this
Court observed that it did not intend to go into the
said
technicalities
and
preferred
to
decide
the
actual issue on merits. Hence, said decision is also
of no assistance to the respondent.
As held in Bhavna Adwani (supra), there is
no legal bar to make a prayer for grant of divorce in
proceedings for
Though petitioner
the
restitution
in
a
of
conjugal
given
case
rights.
may
seek
restitution of conjugal rights initially, on account
of the conduct of the other side, such petitioner

could urge that the other relief of divorce on the
ground of desertion could, however, be granted. If in
law separate proceedings for such a relief could be
filed, there is no reason not to permit a party from
seeking
such
reliefs
in
the
same
proceedings.
Ultimately, even for succeeding in the grant of such
relief, it would be necessary for such party to prove
the claim made therein.
Similarly,
objection to
we find that the appellant's

12.
amendment
and
to
insertion
of
an
additional prayer seeking the relief of decree of
divorce on account of cruelty is also unsustainable.
A
civil
suit
procedural
Order 2
to
laws
Rule
certain
and
2,
in
extent, is bound
province of amendment,
Order 6
Rule
17
by
the
by
of CPC and the
Limitation Act,1963. The Hindu Marriage Act,1955 does
not prescribe any outer period to prove the desertion
or cruelty, if the cause continues. The said Act only
prohibits filing of premature proceedings and after
expiry of said bar-period, the cause in most of the
matrimonial disputes may be continuous accruing till
the normal ties are not restored. Section 21 only
makes
CPC
applicable
as
far
as
possible
and
not
otherwise.
The legislative intent to attempt to put
an end to the matrimonial dispute in one proceeding
and
to
avoid
multiplicity
is
also
perceived
in

Section 23 and Section 23A of the said Act. Duty of
Court to attempt to reconciliate or divorce by mutual
or
then
an
irretrievable
breakdown
of
consent
marriage are some of the features peculiar to this
jurisdiction.
Thus, primacy is given to
restoration
of normal marital ties and ,if not possible, to
grant or
other
appropriate
relief
of
separation
divorce. There is no principle that husband, having
to
secure
the
relief
failed
of
restitution,
can
ig
thereafter, never, file the proceedings for divorce
on the available grounds. Non execution of a decree
for the restitution of conjugal rights may also lead
to grant of divorce. Hence, the concept like changing
the nature of suit etc. may be inherently foreign to
not
and
applicable
in
matrimonial
matters.
Perspective that due to change in nature of suit the
defense
may
available
at
receive
all
severe
in
set
back
matrimonial
may
not
be
jurisdiction.
However, not much arguments are advanced on these
lines before us and hence, we leave this aspect open
for its due consideration in an appropriate case.
But, on
the
date
on
which the
respondent
husband
sought the leave to amend in present matter, it was
also open to him, to institute fresh proceedings for
grant
of
continuous
divorce
on
desertion.
case was not
the
As
prohibited,
ground
of
institution
he
could
cruelty
of
the
have very
and
fresh
well
sought leave to amend and add an additional relief in

the alternative in very same proceeding.
Husband-original petitioner was attempting
13.
to show unwarranted withdrawal from society by his
wife i.e. appellant. Even while amending, he placed
his unequivocal desire to have restitution and hence,
qualified the amended prayer clause by employing the
words “if not possible”. The respondent wife in said
can
not
object
proceeding
such
prayers
as
prayers. She can not be heard
ig
mutually destructive
to
to say that she will not cohabit and will not permit
the husband to pray for dissolution of the marriage.
She can not turn a Nelson's eye to the forgiveness
offered by husband by filing a case for restitution
against her and at the same time, frown upon the
request
for
relationship
condoned.
putting
because
of
an
end
her
to
wrong
matrimonial
offered
to
be
Appellant can not approbate and reprobate
at the same time. We find that the respondent husband
has also continued with his bonafides while seeking
the amendment and it is not open to appellant to urge
any prejudice, though factually none is caused to
her. The admitted date on which appellant left the
matrimonial house is 23.8.1993 and the parties have
not resided together thereafter. Child is born to the
couple
on
restitution
27.8.1993
are
and
instituted
the
on
proceedings
22.12.1994.
for
After
filing of a written statement by wife turning down

forgiveness
and
failure
before
the
Marriage
his
Counselor, leave to amend was sought and granted. In
amended plea also, desire to condone is expressed and
divorce is sought, if the condonation does not evoke
required
response.
On
that
day,
it
was
open
to
husband to file fresh proceedings for divorce on the
strength
of
desertion
and
cruelty.
Hence,
by
amendment, the time spent in litigation in seeking
to
conditional
response
forgiveness
between

22.12.1994 till October, 1996 is thus sought to be
put to use permitted by law. Appellant wife can not
on one hand refuse to cohabit and on other hand,
insist for institution of fresh case on the ground of
desertion
and
cruelty.
Encouraging
such
a
defence
will be to put a premium on party at fault and an
injustice to a bonafide spouse who desires to resume
cohabitation. It will be defeating the very scheme of
jurisdiction with the Court under the said Act. We
therefore
express
reservations
on
relevance/correctness of view reported at AIR 2012
Raj 8 (Reema Bajaj v. Sachin Bajaj) relied upon by
the learned counsel for the appellant which considers
Sections 9,13 and 13A of the said Act with Order 6
Rule 17, Order 7 Rule 7 of Civil Procedure Code and
holds that an application for restitution of conjugal
rights
divorce
cannot
by
restitution
be
way
of
converted
of
into
amendment
conjugal
rights
application
for
since prayer for
and divorce are

diametrically opposite prayers. It is concluded by
the learned Single Judge there that allowing such an
results
into
change
in
nature
of
amendment
matrimonial application. Moreover, in present matter,
the learned Judge of the Family Court by order dated
20-5-1996
disposed
of
the
earlier
application
for
amendment filed by respondent husband by directing
him to file another application for seeking divorce
as an alternate relief. This order or liberty has
ig
remained unchallenged.
Hence, we hold that in the proceedings for
restitution of conjugal rights under Section 9 of the
said Act, the relief of divorce could be sought by
the
petitioner.
Point
No.2
stands
answered
accordingly.
14.
As to Point No.3: According to the learned
Counsel for the appellant, the learned Judge of the
Family Court erred in permitting the proceedings to
be amended so as to incorporate the alternate prayer
for
grant
of
divorce.
According
to
the
learned
Counsel in view of the provisions of Section 13(1)
(i-b) of the said Act for constituting desertion as a
ground for divorce, one of the parties has to desert
the other for a continuous period of not less than
two years immediately preceding the presentation of
the
petition.
original
It
was
proceedings
submitted
were
filed
that
on
though
22-12-1994,
the
by
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to amend the proceedings
permitting the respondent
by adding the prayer for divorce on the ground of
the
Family
Court
has
permitted
the
desertion,
respondent to agitate a ground of divorce that was
not permissible in law to be relied upon when such
proceedings were filed. In other words, there was no
desertion not
for
period
less
than
two
years
immediately preceding the filing of the petition i.e.
on 22-12-1994.
ig
The argument though attractive, on further
consideration the same does not merit its acceptance.
left
The case of the respondent is that the appellant had
the
matrimonial
December
1993.
The
home
in
the
respondent
last
week
thereafter
of
filed
application for amendment on 13-6-1996 and same was
allowed
on
respondent
19-10-1996.
was
permitted
By said
amendment
to raise
the
the
ground
of
divorce on account of desertion under Section 13(1)
(i-b) of the said Act. The effect of allowing the
amendment on 19-10-1996 would be that it would be
necessary for the respondent
to
prove
that for a
continuous period of two years prior thereto, the
appellant had deserted the respondent. The amendment,
therefore,
would
necessarily
be
required
to
have
taken effect from the date it was allowed i.e. on
19-10-1996 and the same would not relate to the date
of filing of the petition. The learned Judge of the
Family
Court
while
considering
this
issue
has
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observed that said ground of divorce was available to
the respondent for seeking divorce.
The aspect of
avoiding multiplicity of proceedings has also been
taken into account while allowing the amendment.
In this regard, the learned Counsel for
the respondent
has
relied upon a
judgment
of
the
learned Single Judge of this Court in Suren (supra).
It was held by the learned Single Judge that granting
such an amendment would not relate back to the date
ig
of filing of the petition and the ground sought to be
raised would become available only from the date of
grant of such amendment. In the said case also, the
ground of desertion was added by way of amendment
during
pendency
of
the
matrimonial
proceedings.
It was observed that the ground that was initially
not available could be permitted to be added on the
basis of subsequent conduct of the parties and the
same would not relate back to the date of filing of
the petition but, said ground would become available
from the date of grant of the amendment. In our view,
the
aforesaid
Judge
are
observations
correct
and
we
of
the
learned
respectfully
Single
affirm
the
same. The aforesaid decision of the learned Single
Judge has been also followed by the Delhi High Court
in Sanyogta (supra).
Therefore,
the
amendment
permitting
raising of a ground of divorce during pendency of the
proceedings
would not relate
back
to
the
date
of
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filing of the proceedings, but would become available
from the date it is granted. Hence, Point No.3 stands
15.
As to Point No.4:
answered accordingly.
According
to
the
learned Counsel for the respondent, the present is a
case where there has been an irretrievable breakdown
of the marriage between the parties and hence, on
said count itself, a decree for divorce needs to be
ig
passed. It is submitted that the parties have been
living
separately
for
last
almost
20
years
and
considering their conduct, the only inference that
can be drawn is that the marriage between the parties
has broken down. In this regard, the learned Counsel
placed reliance upon the decisions of the Hon'ble
Apex Court in Durga (supra)and Rishikesh (supra)as
well as the judgment of Andhra Pradesh High Court in
Iffath (supra).
Irretrievable breakdown of marriage is not
a ground envisaged by Section 13 of the said Act for
grant of divorce. Separation of the parties for a
long period of time without any justifiable cause
amounting
to desertion could be a ground for passing
a decree of divorce under Section 13(1) (i-b) of the
said Act. As observed by the Hon'ble Apex Court in
Chetandass Vs. Kamladevi, AIR 2001 SC 1709, it would
not
be
appropriate
to
apply
any
submission
of
“irretrievably broken marriage” as a strait jacket
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formula for grant of divorce. Thus, it is clear that
mere submission that the marriage has irretrievably
for
divorce
divorce
without
has
been
already taken by
broken down cannot lead this Court to pass a decree
examining
made
out
if
or
any
not.
Division Bench
ground
Such
of this
for
view is
Court in
Bajrang Revdekar Vs. Pooja Revdekar AIR 2010 Bom 8.
We would, therefore, prefer to examine whether the
respondent has made out a case for divorce on the
Point No.4, therefore, stands
ig
ground of desertion.
16.
answered accordingly.
As to Point No.5:
The
respondent
has
sought divorce on the ground of desertion in terms of
provisions of Section 13(1)(i-b) of the said Act.
The provision contemplates desertion for a continuous
period
of
preceding
not
the
less
than
two
presentation
of
years
the
immediately
petition.
The
explanation to the expression “desertion” means the
desertion
of
the
petitioner
by
the
other
party
without reasonable cause and without the consent or
against wish of such party. As held hereinabove, by
order dated 19-10-1996, the respondent was permitted
to make a prayer for grant of divorce by allowing the
amendment. Hence, the aspect of desertion will have
to be considered for a period commencing two years
prior thereto i.e. from 19-10-1994 onwards.
In other
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appellant
onwards
had
without
deserted
reasonable
from
cause
consent or against his wish.
Before
him
examining
and
19-10-1994
without
his
the
words, the respondent would be required to prove that
the
aspect
of
cruelty, it would be necessary to consider
the observations of the Hon’ble Apex Court
made
in
N.
G.
Dastane
(Supra).
In
the
aforesaid decision, it has been held that
ig
firstly the burden to prove the grounds on
which relief is sought in a matrimonial
proceeding rests on the petitioner.
It has
been further held that normal rule that
governs
civil
proceedings
namely
that
a
fact can be said to be established if it is
proved by a preponderance of probabilities
is also applicable in such cases. There is
no
need
establish
to
expect
a
the
particular
petitioner
ground
to
“beyond
reasonable doubt”, but the Court must be
satisfied
on
a
preponderance
of
probabilities that a case for relief has
been made out. These aspects, therefore,
are
required
to
be
considered
while
examining the matter on merits.
17.
Though
the
proceedings
as

filed
were
for
restitution
of
conjugal rights, the respondent has also
divorce
cruelty
on
arising
the
out
ground
of
of
mental
sought
initially
the
appellant’s
conduct and behaviour as well as by the
fact
of desertion. In
reply
aforesaid pleadings, the
to the
appellant has
denied that the respondent is entitled to
pleadings,
the
appellant
has
ig
specific
In her
claim divorce on aforesaid grounds.
stated that she was being illtreated by the
respondent. It has been pleaded that the
respondent and his mother used to beat the
appellant, the respondent used to drive out
the appellant from the house when it was
raining. There was also a threat given by
the
respondent
of
throwing
acid
There are also
regarding appellant. demand of dowry
respondent.
It
is
stated
on
the
pleadings
by the
that the
respondent had called the mother of the
appellant
and
had
demanded
Rs.4,000/-.
It is thereafter pleaded that a demand of
Rs.4,000/- towards the expenses of delivery
were also made to the appellant’s father.
It is then specifically pleaded that on
23-12-1993 when the appellant’s father and
uncle along with other Panchas had come to

who was accompanying the aforesaid persons
was beaten in presence of said persons.
the house of the respondent, the appellant
The respondent in his evidence has
stated
that
he
was
ready
to
take
the
appellant back, but it was her father who
was not ready to send the appellant back.
He has further deposed that he had issued
notices on 28-1-1994 (Exh.61) and 18-2-1994
calling
upon
resume
the
cohabitation.
ig
(Exh.64)
appellant
In
the
to
cross
examination, he has denied suggestions made
regarding
demand
of
appellant’s mother.
Rs.4,000/-
to
the
There are, however, no
suggestions given to him with regard to the
case
of
the
appellant
on
the
point
of
illtreatment namely driving her out from
the house in the rains, throwing of acid or
beating
her
in
the
presence
of
all
on
23-12-1993. The appellant in the course of
her examination-in-chief
the threat
throwing
given
acid,
by
has
the
demanding
referred to
respondent of
Rs.4,000/-
from
the appellant’s father and also her father
being driven out when he had gone to invite
the respondent for naming ceremony. In the
cross
examination,
she
has
stated
that

64) from the respondent, she did not return
notices
were
not
for
to the matrimonial house though the said
though she received the notices (Exh 61 &
divorce.
She
has
further admitted that she had not sent any
letter to her parents informing them about
ill-treatment
or
that
she
had
requested
them to take her back. She has stated that
she was employed in the year 1996 as a
continued
ig
teacher and even after marriage she had
using
her
maiden
name
in
the
service record.
The
appellant’s
father
was
examined and in his cross examination he
that
after
the
marriage,
his
admitted
daughter lived with the respondent only for
10 months. He further admitted that he did
not lodge any report regarding illtreatment
of his daughter or regarding demanding of
dowry.
Ashok
Similarly,
(Exh.85)
appellant’s
respondent
who
father
were
Shiodas
had
during
also
(Exh.84) and
accompanied the
talks
examined.
to
In
the
their
examination-in-chief, however, there is no
reference to the appellant being beaten in
the presence of Panchas on 23-12-1993.

treatment of
respondent
the
is
appellant
concerned
except
by the
the bare
In so far as the aspect of ill-
18.
statement of the appellant, there is no
material
on
record
to
come
to
the
conclusion that the appellant was, in fact,
ill-treated by the respondent. Though it
was alleged that the appellant was driven
out of the matrimonial home and she was
neighbour
ig
required to go out when it was raining, no
has
been
examined
to
support
that
aforesaid plea. In so far as the allegation
on
23-12-1993,
threatened
and
the
beaten
in
appellant
was
presence
of
panchas, the two witnesses examined by the
appellant namely Shiodas (Exh.84) and Ashok
(Exh.85) do not refer to aforesaid threats
or
beating
deposition.
of
Even
the
the
appellant
in
appellant’s
their
father
Manohar (Exh.83) does not say anything in
this regard. In fact, no suggestions are
given to the respondent that on said date,
he threatened or ill treated the appellant
in
presence
of
the
Panchas.
Therefore,
there is no material on record to hold that
the respondent had ill treated or beaten
the
appellant
on
23-12-1993.
The
appellant’s father in his cross examination
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lodge any report regarding either demand of
dowry or ill-treatment at the hands of the
has categorically admitted that he did not
respondent. It may be noted that it was the
case of the appellant that she had left the
matrimonial home on account of the ill-
treatment at the hands of the respondent.
In so far as the demand of the
amount of Rs.4000/- by the respondent is
ig
concerned, the appellant has pleaded that
in July 1993, the respondent had called the
mother of the appellant and had demanded
Rs.4000/-.
It
is
further
pleaded
that
similarly demand was thereafter made from
appellant’s
the
father
as
expenses
for
delivery. The mother of the appellant to
whom the first demand of Rs.4000/- was made
has not been examined. Except the statement
of
the
appellant’s
father,
there
is
no
other material on record to hold that there
was any such demand made by the respondent
especially when the appellant’s father did
not lodge any report in that regard. Hence,
except bare statements on the part of the
appellant and her father, the same having
been denied by the respondent in his cross
examination, there is no other material on
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to
hold
that
such
demand
of
Rs.4000/- was made by the respondent. Thus,
it has to be held that the appellant has
record
failed to prove the plea of illtreatment by
the respondent or the demand of an amount
of
Rs.4000/-
by
the
respondent.
The Division Bench of this Court in
(supra)
has
held
that
making
Bhawna
false
and
unsubstantiated charges against other party
ig
as regards demand of dowry would amount to
cruelty.
19.
Having held that the appellant had
failed
to
prove
either
illtreatment
or
demand of the amount of Rs.4000/- by the
respondent, it would now be necessary to
consider whether the appellant had deserted
the respondent without reasonable cause and
without his consent or against his wish in
terms of the Explanation to the provisions
of
Section
reasons
13(1)(i-b)
assigned
by
of
the
said
Act. The
appellant for
leaving matrimonial home are on account of
the illtreatment and demand of Rs.4000/- by
the respondent. Other than the aforesaid
two
reasons,
no
other
reason
has
been
assigned for leaving matrimonial home. The
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in
his
cross
examination
has
stated that on the day the appellant left
matrimonial
home,
they
were
living
the
respondent
separately from his mother and brother and
hence, when he returned home, he did not
find anybody at home. It is also necessary
to note that the respondent by sending two
notices (Exh.61 & Exh.64) had called upon
the appellant to rejoin his company. There
ig
was, however, no positive response from the
appellant.
proceedings
when
the
Thereafter, during pendency of
referred
to
the
the
Marriage
parties were
Counselor, the
appellant stated before him that she was
desirous
of
returning
to
the
not
matrimonial home and that she would do so
only after her son completed the age of 18
years. The appellant, therefore, has failed
to place any justifiable reason on record
or to assign any reasonable cause to desert
the
respondent.
The
reasons
given
for
leaving the matrimonial home have not been
proved by the appellant and hence, it has
to be held that the appellant has deserted
the respondent “without reasonable cause”
in
terms
of
the
Explanation
13(1)(i-b) of said Act.
to
Section
It is, therefore,
clear that though the appellant left the
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son
on
27-8-1993,
as
stated
for the period
considering the desertion
above,
matrimonial home before the birth of her
from 19-10-1994 onwards, it is clear that
the appellant has left the matrimonial home
and
deserted
the
respondent
reasonable cause”.
“without
20.
It is not in dispute that appellant did
ig
not agree to resume cohabitation even on trial basis
and expressed that she would consider going to her
husband's house only after her son became major i.e.
on or after 27.8.2011. She has left the matrimonial
behind her
burden was upon
house
husband
her
on
to
23.8.1993
bring
on
and
hence,
record
the
justification therefor. Not only this, if she had any
desire
taken
to
by
resume
her
in
matrimonial
that
relationship,
direction
should
have
steps
been
pleaded and proved. Her readiness to cohabit pleaded
in written statement is subject to the undertaking of
husband and circumstances justifying that need are
not proved by her. Effort to reunite alleged by her
on
23.12.1993
does
not
substantiate
any
need
of
undertaking and that effort also is not brought on
record
with
proper
evidence.
On
the
contrary,
it
militates with her other plea of demand of money and
cruelty which again is not proved. Why she could not
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to
temporary
joint
stay
on
trial
basis
or
agree
required time till her son attained 18 years of age
even to think of returning to her matrimonial house
or wanted an unreasonably long time to even consider
its pros and cons is not clarified. She appears not
interested in cohabitation sand also in dissolving
the marriage. It is obvious that this is nothing but
cruelty as also desertion.
Even before the Family
Court or then before this Court, she never expressed
ig
her design to revive the relationship. She is only
opposing every move of her husband without any rhyme
reason.
Marriage
in
question
has
lost
its
or
propriety and there is no point in continuing the
relationship. It will, therefore, have to be
held that the appellant having failed to
assign any reasonable cause for desertion,
the respondent is entitled for a decree of
divorce on the ground of cruelty on account
of said desertion.
21.
refer
At this stage, it is necessary to
to
appellant
the
contention
regarding
raised
the
by
aspect
the
of
condonation of acts by the respondent. In
view of the provisions of
Section 23(1)(b)
of the said Act, the Court is required to
be satisfied that the party seeking divorce
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manner condoned the cruelty. The expression
“or condoned the act or acts complained of”
on the ground of cruelty has not in any
as appearing in Section 23(1)(b) of the
said
Law
Act
is
required
to
be
considered.
on the point of condonation
is laid
down by the Division Bench of this Court in
(1)
Marwah
Mh.L.J.
429
(Harvinder
Singh
2000
Vs.
Charanjit
Kaur).
There
the
ig
cruelty was found established in Divorce
Petition filed by husband on the ground of
cruelty. Till the respondent wife left the
home, they were
together and were having
relations. Question
marital
the
order
of
involved
learned
co-habiting
physical
was
whether
Principal
Judge
dismissing the petition on the ground of
condonation of cruelty needed to be set
aside?
While
answering
the
question
in
affirmative, this Court held in para 11
that
"For
physical
two
young
relations
is
persons
quite
to
common.
have
But
that itself would not lead to an inference
of condonation. Even that case is not put
forth by the other side. She has left the
marital home since 24.4.1992 and has stayed
away since then."
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Ravi Kumar v. Julmidevi, (2010) 4 SCC
In
476, at page 478 Hon. Apex Court has observed that:
Several questions cropped up in the
“9.
course of hearing before the High Court. One of them
being whether in view of filing of a proceeding for
restitution
of
conjugal
rights,
the
appellant
had
condoned all alleged prior acts of cruelty of the
wife.
The
High
Court
10.
after
considering
ig
some decisions came to a finding that by filing a
petition under Section 9 of the Act, the appellant
the
had condoned the earlier alleged acts of cruelty of
respondent
wife.
Condonation
is
basically
a
question of fact. This Court finds that the reasoning
of the High Court on condonation in the facts of this
case is correct.”
In Naveen Kohli v. Neelu Kohli, (2006) 4 SCC
558, at page 568, Hon. Apex Court observed in para 42
that “ In England, a view was at one time taken that
the
petitioner
in
a
matrimonial
petition
must
establish his case beyond a reasonable doubt but in
Blyth v. Blyth5 (All ER at p. 536 H-I) the House of
Lords held by a majority that so far as the grounds
of divorce or the bars to divorce like connivance or
condonation are concerned, “the case, like any civil
case,
may
be
proved
by
a
preponderance
of
probability”.
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In N.G. Dastane (Dr) (supra), in para 55 to
58, Hon. Apex Court observes:-
Condonation means forgiveness of the
“55.
matrimonial offence and the restoration of offending
spouse to the same position as he or she occupied
before
the
offence
condonation there
forgiveness and
in
must
committed.
be,
restoration.
this
case
To
therefore,
is,
condonation
was
The
in
constitute
two
things:
evidence
our
opinion,
of
as
ig
strong and satisfactory as the evidence of cruelty.
But that evidence does not consist in the mere fact
that the spouses continued to share a common home
during or for some time after the spell of cruelty.
Cruelty, generally, does not consist of a single,
isolated act but consists in most cases of a series
of acts spread over a period of time. Law does not
require that at the first appearance of a cruel act,
the other spouse must leave the matrimonial home lest
the
continued
condonation.
cohabitation
Such
reconciliation
and
a
be
construed
construction
thereby
frustrate
will
the
as
hinder
benign
purpose of marriage laws.
56. The evidence of condonation consists
here in the fact that the spouses led a normal sexual
life despite the respondent’s acts of cruelty. This
is not a case where the spouses, after separation,
indulged in a stray act of sexual intercourse, in
which
case
the
necessary
intent
to
forgive
and
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restore may be said to be lacking. Such stray acts
may bear more than one explanation. But if during
cohabitation the spouses, uninfluenced by the conduct
of the offending spouse, lead a life of intimacy
which characterises normal matrimonial relationship,
the
intent
spouse
to
to
the
forgive
and
original
restore
status
may
the
offending
reasonably
be
inferred. There is then no scope for imagining that
the conception of the child could be the result of a
ig
single act of sexual intercourse and that such an act
could be a stark animal act unaccompanied by the
nobler graces of marital life. One might then as well
imagine that the sexual act was undertaken just in
order to kill boredom or even in a spirit of revenge.
speculation
Such
important
role
is
in
impermissible.
marital
life
Sex
and
plays an
cannot be
separated from other factors which lend to matrimony
a
sense
of
fruition
and
fulfillment.
Therefore,
evidence showing that the spouses led a normal sexual
life even after a series of acts of cruelty by one
spouse is proof that the other spouse condoned that
cruelty. Intercourse, of course, is not a necessary
ingredient
of
condonation
because
there
may
be
evidence otherwise to show that the offending spouse
has been forgiven and has been received back into the
position
previously
intercourse
in
occupied
circumstances
in
as
the
obtain
home.
here
But
would
raise a strong inference of condonation with its dual
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forgiveness
and
restoration.
That
requirement,
inference stands uncontradicted, the appellant not
to
lead
and
live
a
normal
having explained the circumstances in which he came
sexual
life
with
the
respondent, even after a series of acts of cruelty on
her part.
57.
But
condonation
of
a
matrimonial
offence is not to be likened to a full Presidential
under
Article
72
pardon
of
the
Constitution
ig
which,once granted, wipes out the guilt beyond the
possibility of revival. Condonation is always subject
to the implied condition that the offending spouse
will not commit a fresh matrimonial offence, either
of the same variety as the one condoned or of any
other variety. “No matrimonial offence is erased by
condonation.
Since
the
It
is
obscured
condition
of
but
not
.forgiveness
obliterated”.
is
that
no
further matrimonial offence shall occur, it is not
necessary that the fresh offence should be ejusdem
generis with the original offence. Condoned cruelty
can
therefore
be
revived,
say,
by
desertion
or
adultery.
58. Section 23(1)(b) of the Act, it may be
urged, speaks of condonation but not of its revival
and therefore the English doctrine of revival should
not be imported into matters arising under the Act.
Apparently, this argument may seem to receive some
support from me circumstance that under the English
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law, until the passing of the Divorce Reform Act,
1969 which while abolishing the traditional bars to
relief introduces defences in the nature of bars, at
least one matrimonial offence, namely, adultery could
not
be
revived
examination
of
if
such
once
an
condoned.
argument
But
would
a
closer
reveal
its
weakness. The doctrine of condonation was established
by the old ecclesiastical courts in Great Britain and
was adopted by the English courts from the canon law.
ig
“Condonation” is a technical word which means and
implies a conditional waiver of the right of the
injured spouse to take matrimonial proceedings. It is
not “forgiveness” as commonly understood. In England
condoned adultery could not be revived because of the
provision
express
Matrimonial
Causes
contained
Act,
in
1963
Section 3
of
which was
the
later
incorporated into Section 42(3) of the Matrimonial
Causes
Act,
1965.
In
the
absence
of
any
such
provision in the Act governing the charge of cruelty,
the word “condonation” must receive the meaning which
it
has
borne
for
centuries
in
the
world
of
law.
“Condonation” under Section 23(1)(b) therefore means
conditional forgiveness, the implied condition being
that
no
further
matrimonial
offence
shall
be
committed.”
The Division Bench of the Delhi
High Court in Mat. App. (FC) No. 3/2013 and
CM 7056 and 7057/2013-Pushpa Rajai Vs. Jai
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meaning by following N. G. Dastane (supra).
In AIR 2013 Chh 88 (Smt. Mamta Namdeo Vs.
Prakash Lalwani recently accepted the same
Ghanshyam Bihari Namdeo), the Chhattisgarh
High Court also adopted the same view.
22.
Thus, to constitute condonation in
terms of Section 23(1)(b) of the said Act,
there must be forgiveness and restoration.
question,
constituting
however,
ig
The
condonation,
is
the
whether
conduct
for
of
only one of the parties is to be considered
or whether the conduct of both parties is
to be taken into account. In other words,
whether the unilateral act of one of the
parties is to be considered or whether the
bilateral acts of both parties are to be
considered.
If
for
constituting
condonation, there must be forgiveness and
restoration, it is obvious that bilateral
acts of both parties will be required to be
taken into account while considering the
aspect
of
condonation.
Forgiveness
and
restoration cannot be unilateral and for it
to be effective and fruitful, it has to be
bilateral. One party to the marital tie may
be ready to forgive and restore the same.
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of
the
proceedings
modes
for
could
be
restitution
by
of
filing
conjugal
rights. The other party may, however, not
One
be ready to forgive and restore said tie.
The
proceedings
filed
by
one
party
for
restitution could be opposed by the other
by refusing to rejoin the marital tie. The
same would not result in condonation in as
much as there would be no consensus between
and
ig
the parties for the purposes of forgiveness
restoration.
Hence,
the
would
aspect
of
remain
one-
condonation
sided.
It
will have to be adjudicated after taking
into account the bilateral acts of both
parties.
The offer made by one party and
the reciprocal conduct of the other will
have
to
be
viewed
together
while
determining codonation in terms of Section
23(1)(b) of the said Act.
What we can gather from the above
precedents
is
that
condonation
knowledge to the husband
implies
of being wronged
by wife, conscious election by him not to
exercise
the
legal
right
flowing
therefrom,to forgive the wife conditionally
and the same resulting in the resumption of
normal
relationship
between
the
couple.
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ties
with
mutual
understanding
which
assumes significance. In matter like one at
Thus, it is resumption of normal marital
hand, where the desertion continues without
even
a
day's
break,
the
forgiveness offered by the
conditional
husband is not
reciprocated by the respondent wife. On the
contrary, she refuses to take advantage of
As
such,
condonation
which
ig
desertion.
the opportunity available and persists in
technically is a bilateral act or decision,
aspect
never occurred and insistence upon the said
by
the
appellant
wife
is
misconceived and ill advised.
(supra), the parties
In Baldev Raj
were married on 7-8-1998. After about seven
months, the wife left the matrimonial home,
but returned back in May 1989.
Thereafter,
she again left her husband after a week and
later on rejoined him.
again
efforts
deserted
from
On 19-2-1993, she
him.
The
20-2-1993
husband
to
made
28-2-1993
to
bring her back, but was not successful.
On
23-3-1993,
the
husband
went
to
his
wife’s place to get her back but was not
unsuccessful.
He,
proceedings for
rights 31-3-1993
on
therefore,
restitution
with
of
an
filed
conjugal
alternate
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decree of divorce. In that context, relying
High Court in
Nirmala Devi Vs. Ved Prakash
AIR 1993 HP 1
(supra)
, it was held in
that
restitution
upon the Division Bench judgment of said
prayer for dissolving the marriage by a
filing
of
of
conjugal
Baldev Raj
petition
rights
for
implied
condonation of all earlier acts of cruelty.
where
amendment
convert
proceedings
rights
conjugal
divorce
on
the
for
into
sought to
restitution
ig
(supra),
Similar view has been taken in Reema Bajaj
was
of
proceedings
ground
of
for
desertion.
The learned Single Judge of the Rajasthan
Court
High
proceedings
rights
observed
for
amounted
that
restitution
to
filing
of
of
conjugal
condonation
or
forgiveness of the alleged act of cruelty
till the date of filing of the amendment
application.
unable
to
With utmost respect, we are
agree
with
aforesaid
views.
The unilateral act of filing petition for
restitution of conjugal rights ignoring the
response of the other side by itself would
not amount to condonation for the purposes
of Section 23(1)(b) of the said Act. When
satisfaction in terms of said provision is
to be arrived at by the Court, the approach
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and response of both parties will have to
23.
be taken into account.
In the present case, in view of
filing of the petition for restitution of
conjugal
rights
appellant
has
by
the
submitted
amounts to
alleged act
In proceedings
the
that
respondent
desertion
for
same
condoning
and
of
the
the
the
cruelty.
restitution
of
ig
the
respondent,
conjugal rights, the appellant filed her
written statement and opposed the relief
sought by the respondent. The offer made by
the
respondent
for
restituting
conjugal
rights by filing petition under Section 9
of the said Act was not accepted by the
appellant who replied that the respondent
was not entitled for said relief.
Prior
thereto, the response of the appellant to
the two notices sent by respondent
(Exh.61
& 64) was also not positive. In her cross-
examination, the appellant stated that it
was
suggested
together
Court.
on
to
trial
the
basis
parties
and
to
inform
live
the
She has also admitted that she had
stated before the Marriage Counsellor that
she
would
consider
going
back
to
her
husband after her son would complete the

of
18
years.
Thus,
neither
the
pleadings of the parties nor the evidence
of the appellant indicate any bilateral act
age
or conduct so as to record a finding that
there
was
forgiveness
and
restoration
between the parties and the same amounted
to condonation of the act of desertion on
Further,
the
appellant

24.
the part of the appellant.
petition
for
divorce
on
the
has
ground
opposed
of
the
cruelty.
It was, therefore, necessary for her to have pleaded
and proved the fact that the respondent had in any
manner
condoned
the
alleged
cruelty.
There
is,
however, no evidence whatsoever on record to hold
that the respondent had in any manner condoned the
desertion by the appellant. The appellant has not
placed any material on record to indicate that the
respondent had condoned the aforesaid desertion on
the part of the appellant.
As stated herein above,
the ground of cruelty on account of desertion having
been permitted to be raised on 19-10-1996, the act of
condoning such desertion should be from 19-10-1994
onwards
on
the
part
of
the
respondent.
In
other
words, the appellant was required to show that after
19-10-1994, the respondent had in any manner condoned
the unwarranted desertion of the appellant.
However,
there is hardly any material on record to come to

a
conclusion.
We,
therefore,
record
our
such
satisfaction in terms of Section 23(1)(b) of the said
that
the
respondent
has
not
in
any
manner
Act
condoned the desertion on the part of the appellant
from 19-10-1994 onwards in any manner whatsoever.
25.
In Samar Ghosh
(Supra) relied upon
by the learned Counsel for the respondent,
it has been observed in para 101 that where
ig
there has been a long period of continuous
separation, it could be fairly concluded
the
matrimonial
bond
that
is
beyond
repair. In such situation by refusing to
sever that tie, the same could lead to
cruelty.
mental
From
record, it is
married on 2-12-1992
the that
clear
evidence
after being
parties lived
the
on
together only for a period of 10 months.
They have resided separately since then,
now almost for 20 years.
We have found
that the material on record is sufficient
to
hold
decree
the
of
respondent
divorce
on
entitled
the
for
ground
a
of
desertion. The learned Judge of the Family
Court
has
found
that
the
appellant
had
failed to prove various allegations made by
her which were reasons for deserting the

We find that the aforesaid
conclusion has been arrived at on the basis
of the material on record and we find no
respondent.
reason whatsoever to strike a discordant
note. Accordingly, we affirm the conclusion
arrived at by the Family Court and hold the
respondent
entitled
for
a
The last grievance on behalf of
ig
26.
the
of
divorce.
decree
appellant
namely
re-marriage
by
the
respondent during pendency of the appellant
is now required to be noticed. According to
the
learned
Counsel
for
the
appellant,
though the present appeal was pending, the
respondent
remarried
to
aforesaid According
the
conduct
on
30-11-1998.
learned
of
the
Counsel, the
respondent was
required to be taken note of. Relying upon
the decisions of the Hon’ble Apex Court in
Tejinder Kaur
(Supra),
Lata Kamat
(Supra),
and of the Division Bench of this Court in
Smita Rane
(Supra), it was submitted that
the appeal preferred by the appellant would
not be rendered infructuous. On the other
hand,
it
Counsel
was
for
submitted
the
by
respondent
the
that
learned
while

was issued by this Court on 3-8-1998.
Said
Rule on stay came to be discharged after
hearing both sides on 11-9-1998.
submitted that
appellant to
it
was
have
admitting the present appeal, Rule on stay
open
sought
It was
for
review
the
of
aforesaid order, but the same was not done.
It was, therefore, submitted that in these
as
interim
stay
circumstances,
was
not
ig
granted during pendency of the appeal, the
respondent had remarried on 30-11-1998.
Kaur
The Hon’ble Apex Court in
(Supra),
this Court in
Lata Kamat
Tejinder
(Supra) as well as
Smita Rane
(Supra) have held
that the appeal as filed under Section 28
of said Act would not become infructuous
only on account of the remarriage during
pendency of said appeal. In view of the
aforesaid
considered
law
the
as
laid
challenge
down,
to
we
the
have
decree
passed by the Family Court on merits and we
have not treated the appeal as filed to
have become infructuous. We have thereafter
found that the decree passed by the Family
Court granting divorce to the respondent is
legal and proper. We, accordingly, answer
point
No.5
as
above
and
hold
that
the

is
entitled
for
a
decree
of
respondent
divorce on the ground of cruelty.
27.
In view of our aforesaid findings,
we find no merit in the challenge to the
decree passed by the Family Court. Both the
parties have filed affidavits on record on
the aspect of amount of maintenance. From
the material on record, it is clear that
Sevika
at

the appellant was serving as an Anganwadi
Samudrapur
per month.
27-8-1993 has now
Rs.4000/- and is
The son
attained
the
getting
born on
age of
majority. The respondent in his affidavit
has stated that he is paying an amount of
Rs.1500/-
towards
maintenance
to
the
appellant and her son in addition to an
amount of Rs.896/- that is being deducted
from his salary.
This arrangement is in
force since 8-12-2003 as per orders passed
on the pursis signed by both sides. Said
arrangement can, therefore, be directed to
be
continued
accordance
till
with
it
law.
is
modified
Hence,
in
while
dismissing the appeal, it is directed that
the arrangement as jointly arrived at by
the parties and as ordered by this Court on

is modified in accordance with law. Point
28.
No.6 stands answered accordingly.
8-12-2003 shall continue to operate till it
In the result, the following order
is passed:
[i]
The
appeal
challenging
the
Family
Court,

the
judgment dated 8-6-1998 passed by
Petition
No.A-604/1996
with
parties
in
stands
left
to
dismissed
Nagpur
bear their own costs.
[ii]
The respondent shall continue to
in addition to the deduction of
Rs.896/- per month from his salary
to the appellant in terms of joint
pursis dated 8-12-2003 till said
arrangement
is
duly
modified
in
accordance with law.
[iii] Appeal
pay a sum of Rs.1500/- per month
stands
disposed
of
accordingly.