Whether decree for divorce is vitiated on the ground that issue regarding restitution of conjugal right is not framed?

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 99, no decree can be reversed or
substantially varied on account of any defect or

irregularity in any proceedings not affecting the
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
trial and contested the proceedings. While the
respondent led evidence for grant of divorce, the
appellant led evidence to demonstrate that the
respondent was not entitled for said relief.
Therefore, the prayer for divorce was, in fact,
contested as being the main relief sought in said
proceedings. Further, assuming that the issue
pertaining to claim for restitution of conjugal
rights was framed and answered against the
respondent, the same would not have 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 could not be overlapping. In these
circumstances, therefore, it is clear that 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 of the evidence did not raise any
grievance before the Family Court that the issue
pertaining to restitution of conjugal rights had not
been framed. Hence, taking an overall view of the
matter, we find that the failure on the part of the
Family Court in framing the issue as regards the
claim for restitution of conjugal rights has not
resulted in vitiating the impugned judgment. Point
no.1, therefore, stands answered accordingly.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO.308 OF 1998
 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) ALLMR721 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.

2. The marriage between the parties was
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
restitution of conjugal rights. During pendency of
said proceedings, the 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
started living separately from his mother and
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
respondent's place. After some talks, the appellant's
father informed the respondent that it was not
possible for the appellant to live with the
respondent. Despite efforts through mediators, the
appellant did not return to the matrimonial home and
hence, on 22-12-1994 aforesaid petition seeking
restitution of conjugal rights was filed 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

Rs.4,000/- from her and threatened that if said
demand was not met, the mother should take back her
daughter. It is stated that on 17/18-8-1993, despite
intervention of Panchas, 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
in that regard. The respondent did not attend the
ceremony that was held for naming the child.
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 to defeat the appellant's right, the
present proceedings for restitution of 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 restitution of conjugal rights and
substituting the same by the prayer for grant of
divorce. The learned Judge of the Family Court by

order dated 20-5-1996 disposed of the aforesaid
application by directing the respondent to file
another application for seeking divorce as an
alternate relief.
On 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.
Subsequently, the respondent moved another
application below Exh.28 for amendment of the
aforesaid petition. By said application, 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 appellant filed below Exh.32, the learned
Judge of the Family Court by order dated
19-10-1996 allowed the aforesaid application 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.

6. The respondent examined himself below
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
be amended for seeking the relief of divorce, the
respondent had got over aforesaid statutory bar. In
support of the aforesaid submission, the learned
Counsel for the appellant relied upon the following
judgments.
[1] AIR 2006 Himachal Pradesh 33, Baldev Raj v.
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.
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[7] AIR 1989 Supreme Court 1477, Smt. Lata Kamat
v. Vilas.
[8] 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
learned Counsel appearing for the respondent –
husband supported the impugned judgment. It was
submitted that though initially the respondent had
sought restitution of conjugal rights by filing
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 and cruelty on the part of the
respondent, the same were not substantiated by
leading any cogent evidence. It was urged that
failure to frame the issue as regards the restitution
of conjugal rights did not have the effect of
vitiating the impugned judgment. It was further
submitted that the parties were living 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,
entitled the respondent for grant of divorce on
account of desertion resulting in cruelty. It was
further urged that there was an irretrievable
breakdown of marriage and both parties having been
separated for almost 20 years, they could not be
expected to live together as husband and wife. By
filing an additional affidavit on record, it was
submitted that the respondent had 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

versus Rita Suren Shah.
[6] 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 vs.
Arundhati Tripathy.
[8] II (2006) DMC 107 (DB)Iffath Jamalunnisa
versus Mohd. Suleman Siddiqui.
[9] 2007(3) Mh.L.J. 1, Rishikesh Sharma vs. Saroj
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. After hearing the respective Counsel and
in view 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 a decree for divorce could be
sought as a relief in a petition filed
under Section 9 of the said Act 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?
9. As to point no.1: 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 99, no decree can be reversed or
substantially varied on account of any defect or

irregularity in any proceedings not affecting the
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
trial and contested the proceedings. While the
respondent led evidence for grant of divorce, the
appellant led evidence to demonstrate that the
respondent was not entitled for said relief.
Therefore, the prayer for divorce was, in fact,
contested as being the main relief sought in said
proceedings. Further, assuming that the issue
pertaining to claim for restitution of conjugal
rights was framed and answered against the
respondent, the same would not have 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 could not be overlapping. In these
circumstances, therefore, it is clear that 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 of the evidence did not raise any
grievance before the Family Court that the issue
pertaining to restitution of conjugal rights had not
been framed. Hence, taking an overall view of the
matter, we find that the failure on the part of the
Family Court in framing the issue as regards the
claim for restitution of conjugal rights has 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 the present case, initially, the
proceedings were filed merely for restitution of
conjugal rights. By subsequently amending the
aforesaid proceedings, the relief for grant of
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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
Counsel for the appellant relied upon the decision of
Himachal Pradesh High Court in Baldeoraj (Supra).
In said judgment, the alleged desertion took place on
19-2-1993. On 31-3-1993 the husband filed a petition
for 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.
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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). Perusal of
aforesaid decision reveals that 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
powers of the Court under Section 13 of the said Act.
The proceedings therein related to a claim for
transfer of the matrimonial case. The aforesaid
decision has no application to the case in hand.
11. On the other hand, according to the
learned Counsel for the respondent, it was
permissible to seek the relief of divorce 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
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for desertion was made out. The ratio of the
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
that such course was permissible by taking support of
the provisions of Section 23A of the said Act.
The present case being one for grant of 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 restitution of conjugal rights.
Though the petitioner in a given case may seek
restitution of conjugal rights initially, on account
of the conduct of the other side, such petitioner
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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.
12. Similarly, we find that the appellant's
objection to 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 to certain extent, is bound by the
procedural laws and in province of amendment, by
Order 2 Rule 2, Order 6 Rule 17 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
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Section 23 and Section 23A of the said Act. Duty of
Court to attempt to reconciliate or divorce by mutual
consent or then an irretrievable breakdown of
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 other appropriate relief of separation or
divorce. There is no principle that husband, having
failed to secure the relief of restitution, can
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
and not applicable in matrimonial matters.
Perspective that due to change in nature of suit the
defense may receive severe set back may not be
available at all in matrimonial 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 divorce on the ground of cruelty and
continuous desertion. As institution of the fresh
case was not prohibited, he could have very well
sought leave to amend and add an additional relief in
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the alternative in very same proceeding.
13. Husband-original petitioner was attempting
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
proceeding can not object to such prayers as
mutually destructive prayers. She can not be heard
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 putting an end to matrimonial
relationship because of her wrong offered to be
condoned. 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 27.8.1993 and the proceedings for
restitution are instituted on 22.12.1994. After
filing of a written statement by wife turning down
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his forgiveness and failure before the Marriage
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
response to conditional 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 cannot be converted into application for
divorce by way of amendment since prayer for
restitution of conjugal rights and divorce are
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diametrically opposite prayers. It is concluded by
the learned Single Judge there that allowing such an
amendment results into change in nature of
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
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. It was submitted that though the
original proceedings were filed on 22-12-1994, by
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permitting the respondent to amend the proceedings
by adding the prayer for divorce on the ground of
desertion, the Family Court has permitted the
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 for period not less than two years
immediately preceding the filing of the petition i.e.
on 22-12-1994.
The argument though attractive, on further
consideration the same does not merit its acceptance.
The case of the respondent is that the appellant had
left the matrimonial home in the last week of
December 1993. The respondent thereafter filed
application for amendment on 13-6-1996 and same was
allowed on 19-10-1996. By said amendment the
respondent was permitted to raise 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
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 observations of the learned Single
Judge are correct and we respectfully 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
answered accordingly.
15. As to Point No.4: 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
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
broken down cannot lead this Court to pass a decree
for divorce without examining if any ground for
divorce has been made out or not. Such view is
already taken by Division Bench of this 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
ground of desertion. Point No.4, therefore, stands
answered accordingly.
16. 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 not less than two years immediately
preceding the presentation of the 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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words, the respondent would be required to prove that
the appellant had deserted him from 19-10-1994
onwards without reasonable cause and without his
consent or against his wish.
Before examining 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
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 to expect the petitioner to
establish a particular ground “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
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initially filed were for restitution of
conjugal rights, the respondent has also
sought divorce on the ground of mental
cruelty arising out of the appellant’s
conduct and behaviour as well as by the
fact of desertion. In reply to the
aforesaid pleadings, the appellant has
denied that the respondent is entitled to
claim divorce on aforesaid grounds. In her
specific pleadings, the appellant has
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 on the
appellant. There are also pleadings
regarding demand of dowry by the
respondent. It is stated 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
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the house of the respondent, the appellant
who was accompanying the aforesaid persons
was beaten in presence of said persons.
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
(Exh.64) calling upon the appellant to
resume cohabitation. In the cross
examination, he has denied suggestions made
regarding demand of Rs.4,000/- to the
appellant’s mother. 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 has referred to
the threat given by the respondent of
throwing acid, demanding 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
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though she received the notices (Exh 61 &
64) from the respondent, she did not return
to the matrimonial house though the said
notices were not for 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
teacher and even after marriage she had
continued using her maiden name in the
service record.
The appellant’s father was
examined and in his cross examination he
admitted that after the marriage, his
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. Similarly, Shiodas (Exh.84) and
Ashok (Exh.85) who had accompanied the
appellant’s father during talks to the
respondent were also examined. In their
examination-in-chief, however, there is no
reference to the appellant being beaten in
the presence of Panchas on 23-12-1993.
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18. In so far as the aspect of illtreatment
of the appellant by the
respondent is concerned except the bare
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
required to go out when it was raining, no
neighbour has been examined to support
aforesaid plea. In so far as the allegation
that on 23-12-1993, the appellant was
threatened and beaten in 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 of the appellant in their
deposition. Even the appellant’s 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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has categorically admitted that he did not
lodge any report regarding either demand of
dowry or ill-treatment at the hands of the
respondent. It may be noted that it was the
case of the appellant that she had left the
matrimonial home on account of the illtreatment
at the hands of the respondent.
In so far as the demand of the
amount of Rs.4000/- by the respondent is
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
the appellant’s 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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record to hold that such demand of
Rs.4000/- was made by the respondent. Thus,
it has to be held that the appellant has
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 Bhawna
(supra) has held that making false and
unsubstantiated charges against other party
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 13(1)(i-b) of said Act. The
reasons assigned by 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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respondent in his cross examination has
stated that on the day the appellant left
the matrimonial home, they were living
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
was, however, no positive response from the
appellant. Thereafter, during pendency of
the proceedings when the parties were
referred to the Marriage Counselor, the
appellant stated before him that she was
not desirous of returning to the
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 to Section
13(1)(i-b) of said Act. It is, therefore,
clear that though the appellant left the
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matrimonial home before the birth of her
son on 27-8-1993, as stated above,
considering the desertion for the period
from 19-10-1994 onwards, it is clear that
the appellant has left the matrimonial home
and deserted the respondent “without
reasonable cause”.
20. It is not in dispute that appellant did
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
house behind her husband on 23.8.1993 and hence,
burden was upon her to bring on record the
justification therefor. Not only this, if she had any
desire to resume matrimonial relationship, steps
taken by her in that direction should have 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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agree to temporary joint stay on trial basis or
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
her design to revive the relationship. She is only
opposing every move of her husband without any rhyme
or reason. Marriage in question has lost its
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. At this stage, it is necessary to
refer to the contention raised by the
appellant regarding the aspect 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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on the ground of cruelty has not in any
manner condoned the cruelty. The expression
“or condoned the act or acts complained of”
as appearing in Section 23(1)(b) of the
said Act is required to be considered.
Law on the point of condonation is laid
down by the Division Bench of this Court in
2000 (1) Mh.L.J. 429 (Harvinder Singh
Marwah Vs. Charanjit Kaur). There the
cruelty was found established in Divorce
Petition filed by husband on the ground of
cruelty. Till the respondent wife left the
marital home, they were co-habiting
together and were having physical
relations. Question involved was whether
the order of learned 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 two young persons to have
physical relations is quite common. 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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In Ravi Kumar v. Julmidevi, (2010) 4 SCC
476, at page 478 Hon. Apex Court has observed that:
“9. Several questions cropped up in the
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.
10. The High Court after considering
some decisions came to a finding that by filing a
petition under Section 9 of the Act, the appellant
had condoned the earlier alleged acts of cruelty of
the 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:-
“55. Condonation means forgiveness of the
matrimonial offence and the restoration of offending
spouse to the same position as he or she occupied
before the offence was committed. To constitute
condonation there must be, therefore, two things:
forgiveness and restoration. The evidence of
condonation in this case is, in our opinion, as
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 cohabitation be construed as
condonation. Such a construction will hinder
reconciliation and thereby frustrate the 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 to forgive and restore the offending
spouse to the original status may reasonably be
inferred. There is then no scope for imagining that
the conception of the child could be the result of a
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.
Such speculation is impermissible. Sex plays an
important role in marital life and 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 occupied in the home. But
intercourse in circumstances as obtain here would
raise a strong inference of condonation with its dual
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requirement, forgiveness and restoration. That
inference stands uncontradicted, the appellant not
having explained the circumstances in which he came
to lead and live a normal 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
pardon under Article 72 of the Constitution
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. It is obscured but not obliterated”.
Since the condition of .forgiveness 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 if once condoned. But a closer
examination of such an argument would 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.
“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
express provision contained in Section 3 of the
Matrimonial Causes Act, 1963 which was 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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Prakash Lalwani recently accepted the same
meaning by following N. G. Dastane (supra).
In AIR 2013 Chh 88 (Smt. Mamta Namdeo Vs.
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.
The question, however, is whether for
constituting condonation, the conduct 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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One of the modes could be by filing
proceedings for restitution of conjugal
rights. The other party may, however, not
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
the parties for the purposes of forgiveness
and restoration. It would remain onesided.
Hence, the aspect of condonation
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 implies
knowledge to the husband 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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Thus, it is resumption of normal marital
ties with mutual understanding which
assumes significance. In matter like one at
hand, where the desertion continues without
even a day's break, the conditional
forgiveness offered by the husband is not
reciprocated by the respondent wife. On the
contrary, she refuses to take advantage of
the opportunity available and persists in
desertion. As such, condonation which
technically is a bilateral act or decision,
never occurred and insistence upon the said
aspect by the appellant wife is
misconceived and ill advised.
In Baldev Raj (supra), the parties
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. On 19-2-1993, she
again deserted him. The husband made
efforts from 20-2-1993 to 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, therefore, filed
proceedings for restitution of conjugal
rights on 31-3-1993 with an alternate
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prayer for dissolving the marriage by a
decree of divorce. In that context, relying
upon the Division Bench judgment of said
High Court in Nirmala Devi Vs. Ved Prakash
AIR 1993 HP 1 , it was held in Baldev Raj
(supra) that filing of petition for
restitution of conjugal rights implied
condonation of all earlier acts of cruelty.
Similar view has been taken in Reema Bajaj
(supra), where amendment was sought to
convert proceedings for restitution of
conjugal rights into proceedings for
divorce on the ground of desertion.
The learned Single Judge of the Rajasthan
High Court observed that filing of
proceedings for restitution of conjugal
rights amounted to condonation or
forgiveness of the alleged act of cruelty
till the date of filing of the amendment
application. With utmost respect, we are
unable to 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
be taken into account.
23. In the present case, in view of
filing of the petition for restitution of
conjugal rights by the respondent, the
appellant has submitted that the same
amounts to the respondent condoning the
alleged act of desertion and cruelty.
In the proceedings for restitution of
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 crossexamination,
the appellant stated that it
was suggested to the parties to live
together on trial basis and inform the
Court. 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
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age of 18 years. Thus, neither the
pleadings of the parties nor the evidence
of the appellant indicate any bilateral act
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
the part of the appellant.
24. Further, the appellant has opposed the
petition for divorce on the ground of 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
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such a conclusion. We, therefore, record our
satisfaction in terms of Section 23(1)(b) of the said
Act that the respondent has not in any manner
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
there has been a long period of continuous
separation, it could be fairly concluded
that the matrimonial bond is beyond
repair. In such situation by refusing to
sever that tie, the same could lead to
mental cruelty. From the evidence on
record, it is clear that after being
married on 2-12-1992 the parties lived
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 the respondent entitled for a
decree of divorce on the ground 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
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respondent. We find that the aforesaid
conclusion has been arrived at on the basis
of the material on record and we find no
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 decree of
divorce.
26. The last grievance on behalf of
the 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 on 30-11-1998.
According to the learned Counsel, the
aforesaid conduct of 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 was submitted by the learned
Counsel for the respondent that while
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admitting the present appeal, Rule on stay
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. It was
submitted that it was open for the
appellant to have sought review of
aforesaid order, but the same was not done.
It was, therefore, submitted that in these
circumstances, as interim stay was not
granted during pendency of the appeal, the
respondent had remarried on 30-11-1998.
The Hon’ble Apex Court in Tejinder
Kaur (Supra), Lata Kamat (Supra) as well as
this Court in 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 law as laid down, we have
considered the challenge to the 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
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respondent is entitled for a decree of
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
the appellant was serving as an Anganwadi
Sevika at Samudrapur and is getting
Rs.4000/- per month. The son born on
27-8-1993 has now attained the 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 till it is modified in
accordance with law. Hence, while
dismissing the appeal, it is directed that
the arrangement as jointly arrived at by
the parties and as ordered by this Court on
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8-12-2003 shall continue to operate till it
is modified in accordance with law. Point
No.6 stands answered accordingly.
28. In the result, the following order
is passed:
[i] The appeal challenging the
judgment dated 8-6-1998 passed by
the Family Court, Nagpur in
Petition No.A-604/1996 stands
dismissed with parties left to
bear their own costs.
[ii] The respondent shall continue to
pay a sum of Rs.1500/- per month
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 stands disposed of
accordingly.
JUDGE JUDGE
//MULEY//
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