for the relief of dissolution of marriage that he/she should call upon
other party against whom decree of restitution of conjugal rights has
been passed to satisfy the decree and that being so, it cannot be
said that the party asking for divorce on such ground has committed
wrong if he is not followed the said course. In order to constitute the
“wrong”, within the meaning of Section 23 (1) (a) of the said Act, it
has to be something more than mere disinclination of the petitioner husband
to agree to or an offer of re-union after filing of divorce
petition. The alleged misconduct must be serious enough to justify
the denial of the relief to which the petitioner is otherwise entitled to.
The word “wrong” envisaged under Section 23 (1) (a) of the Act has
to be a “wrong” of a kind different from a mere conduct of refusing to
resume conjugal relationship after passing the decree of restitution of
conjugal rights. In our considered opinion, the learned Judge of
Family Court, Aurangabad has thus taken a wrong view that refusal
of petitioner-husband to take back respondent-wife after institution of
divorce proceeding and not taking any steps for restitution of
conjugal rights during or after the statutory period is over, would
constitute a ground for refusing decree of divorce. There is nothing
on record to show that after passing decree of restitution of conjugal
rights and before making petition for divorce, the petitioner-husband
had created obstruction in complying with the decree by the wife or
that the petitioner-husband wanted that the decree should not be
complied with so that he may obtain divorce on the basis of said
decree for restitution of conjugal rights. In our considered onion, the
petitioner-husband is not in any way taking advantage of his own
wrong in this case. Thus, we are not inclined to hold that the
petitioner-husband has resorted to proceeding for restitution of
conjugal rights only as device to obtain the decree of divorce.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FAMILY COURT APPEAL NO. 32 OF 2004
Arun s/o Narayanrao Marathe Vs Varsha w/o Arun Marathe
CORAM : R.M. BORDE AND
V. K. JADHAV, JJ.
Dated :14.10.2014
Citation;2015(2)MHLJ400
1. This is an appeal filed by the petitioner-husband challenging
the judgment and decree passed by the learned Judge of Family
Court, Aurangabad in petition No. 38 of 2001, dismissing the petition
of petitioner-husband filed under Section 13 (1-A) (ii) of Hindu
Marriage Act, 1955 (hereinafter for the sake of brevity referred to as
the “said Act”), praying therein for dissolution of marriage by decree
of divorce. (For the sake of convenience, hereinafter the parties shall
be referred by their status before the Family Court i.e. “petitioner”
and “respondent”).
2. Brief facts, giving raise to the present appeal, are as follows:-
a) The marriage between the petitioner-husband and respondentwife
was solemnized on 7.6.1983 according to Hindu rites and
rituals. They have a son and a daughter out of their marital
wedlock. Their marriage is still subsisting.
b) According to petitioner-petitioner-husband in the year 1988,
respondent-wife on her own accord left the house of
petitioner-husband with kids and started residing with her
parents. Consequently, petitioner-husband was constrained to
file petition for restitution of conjugal rights under Section 9 of
said Act bearing H.M.P. No. 66 of 1989. On 17.8.1990, the
learned C.J.S.D. was pleased to pass decree in favour of the
petitioner-husband in the aforesaid proceeding of restitution of
conjugal rights and directed respondent-wife to reside and
cohabit with petitioner-husband. In the aforesaid proceeding,
respondent-wife had appeared but failed to contest the petition
which ultimately resulted into passing of exparte decree.
c) The petitioner-husband further contended that despite decree
passed, respondent-wife did not resume for cohabitation.
Therefore, in pursuance of decree passed in HMP No. 66 of
1989, as aforesaid, petitioner-husband had filed petition for
dissolution of marriage under Section 13(1-A) (ii) of the said
Act, bearing No. 79 of 1991. However, the said petition came
to be dismissed on the ground that respondent-wife’s
application bearing MARJI No. 35 of 1991 for setting aside the
exparte decree was pending. The court has observed that
there is no finality of the decree passed for restitution of
conjugal rights. On 16.7.1992, the learned IInd Joint C.J.S.D.
was pleased to dismiss the said MARJI No. 35 of 1991 filed for
setting aside the exparte decree.
d) Meanwhile, petitioner-husband being aggrieved by the
judgment and decree passed in HMP No. 79 of 1991 dated
25.11.1991, preferred an appeal bearing Regular Civil Appeal
No. 16 of 1992, which also came to be dismissed on the
ground that the appeal against order passed in MARJI No. 35
of 1991 is pending.
The respondent-wife, who was aggrieved by the judgment and
order passed in MARJI No. 35 of 1991, preferred an appeal,
bearing MCA No. 177 of 1992. However, the said appeal came
to be dismissed on 20.4.1996 by the Extra Joint District Judge,
Aurangabad.
e) After dismissal of application bearing MARJI No. 35 of 1991,
as aforesaid, respondent-wife preferred an appeal against the
judgment and decree passed in HMP No. 66 of 1989 dated
17.8.1990 with separate application for condonation of delay.
The learned Extra Joint District Judge, Aurangabad was
pleased to dismiss the application for condonation of delay
bearing MARJI No. 217 of 1992 dated 19.4.1997.
f) Being aggrieved by the judgment and order passed in MARJI
No. 217 of 1992, dated 19.4.1997, respondent-wife preferred
Civil Revision Application bearing No. 935 of 1997 before this
Court. Initially, this Court was pleased to issue notice before
admission and in the meanwhile, decree passed in HMP No.
66 of 1989 came to be stayed. On the basis of decree passed
in HMP No. 66 of 1989, the petitioner-husband had filed an
application for dissolution of marriage bearing Petition No. 107
of 1997. Since decree passed in HMP No. 66 of 1989 was
stayed by this Court, as aforesaid, the petition bearing No. 107
of 1997 came to be dismissed.
g) The petitioner-husband further contends that Civil Revision
Application No. 935 of 1997 in which interim stay was granted
by this Court to the decree passed in HMP No. 66 of 1989, was
finally heard and dismissed by this Court by order dated
25.9.2000. Since Civil Revision Application No. 935 of 1997
was dismissed, interim order passed therein also stood
vacated and decree passed in HMP No. 66 of 1989 has been
restored. Thus, the petitioner-husband on the basis of said
decree passed in HMP No. 66 of 1989 had filed petition for
dissolution of marriage by decree of divorce under section
13(1-A) (ii) of the said Act.
h) It is the case of petitioner-husband that respondent-wife has
failed to join his company within one year or thereafter, after
passing of decree for restitution of conjugal rights and thus
petitioner-husband is entitled for dissolution of marriage by
decree of divorce, as contemplated under Section 13 (1-A) (ii)
of the said Act. The petitioner-husband accordingly filed
petition No. A-38 of 2001 for dissolution of marriage and
decree of divorce before the Family Court, Aurangabad.
i) The respondent-wife has strongly resisted the petition by filing
written statement at Exh.15. The respondent-wife has not
denied the factum of marriage and the issues born to the
couple out of marital wedlock. However, respondent-wife has
denied that she left the matrimonial house on her own accord.
According to respondent-wife, petitioner-husband left the
respondent-wife and kids at her parents’ home for Dipawali
festival and did not turn again to take them back. According to
respondent-wife, efforts were made to resume the matrimonial
life but petitioner-husband did not permit entry of respondentwife
in his house at all. On the other hand, petitioner-husband
has initiated proceeding for restitution of conjugal rights.
According to respondent-wife, due to non attendance of matter
by the counsel, who was entrusted with the brief, exparte
decree of restitution of conjugal rights came to be passed
against her. On receipt of notice of petition for divorce filed by
the petitioner-husband, respondent-wife came to know the
decree of restitution of conjugal rights was passed against her.
She has challenged said exparte decree by filing proceeding
before the superior court but finally failed. She has taken steps
to challenge the said decree further.
j) According to respondent-wife, she sought execution of decree
running against her, however, petitioner-husband has taken a
stand that such decree cannot be executed. The petitionerhusband
has never tried to honour the judicial verdict of
restitution of conjugal rights. On the other hand, petitionerhusband
has avoided restitution of conjugal rights and has not
permitted respondent-wife to rejoin his company. The
petitioner-husband has scuttled all efforts of respondent-wife
seeking association and company of petitioner-husband.
k) The respondent-wife further contends that divorce is sought on
the ground that decree for restitution of conjugal rights is not
complied within statutory period of one year and she was
unaware and ignorant of passing of such decree against her.
The petitioner-husband neither bothered to inform her nor took
any steps to execute the decree within statutory period. On
expiry of said period, petitioner-husband came out with the
proceeding for divorce claiming non compliance of decree for
restitution of conjugal rights. A series of litigations on behalf
respondent-wife to get entry in matrimonial home are
countered by petitioner-husband. The petitioner-husband has
not permitted respondent-wife to join his company. It is thus
contended that petitioner-husband cannot be permitted to take
benefit of his own wrong.
l) The respondent-wife by way of amendment in the written
statement further contended that petitioner-husband, during
subsistence of their marriage, has married for second time.
The petitioner-husband is residing with his new wife at Nashik
and has become father of a male child out of said relation. It is
further contended that to cover up this illegal act, the petitionerhusband
is bent upon to get divorce in his favour.
m) The respondent-wife further contended that she is ever willing
to join the company of her husband; she has never disowned
and neglected the petitioner. She unequivocally volunteers to
join the company of petitioner-husband. In the circumstances,
according to respondent-wife, petition is devoid of substance.
On all these grounds, respondent-wife had prayed for
dismissal of petition with costs.
n) Learned Judge of the Family Court has referred the parties to
Marriage Councilor. However, the marriage Councilor by his
report at Exh.10 informed that no reconciliation or settlement is
possible between the parties.
o) On the basis of rival pleadings of the parties to the petition,
learned Judge of Family Court has framed issues. The
petitioner-husband has examined himself on oath before
learned Judge of Family Court at Exh.21. He was crossexamined
by respondent-wife at length. The respondent-wife
did not step up in witness box. The learned Judge of Family
court in para 24 of the judgment has observed that though
counsel for respondent-wife orally submitted about filing of
pursis, he has not filed evidence close pursis on record and
argued the matter on 9.3.2004.
p) Learned in charge Judge of Family Court, Aurangabad by its
impugned judgment and decree dated 24.3.2004 dismissed
the petition with costs. Being aggrieved by the same,
petitioner-husband has preferred this appeal on various
grounds, as set out in the appeal memo.
3. Learned counsel for petitioner-husband (appellant) has
submitted that after passing of decree for restitution of conjugal rights
in favour of petitioner-husband in the year 1990, respondent-wife
instead of joining the company of petitioner-husband, went on
challenging the said decree by various proceeding up to this Court
and this act of respondent-wife itself shows that she was not willing
to join the company of petitioner-husband. Learned counsel further
submitted that learned Judge of Family Court has misconstrued and
misinterpreted the provisions of Section 23 of the said Act and
thereby arrived at an erroneous conclusion. In fact, the Family Court
ought to have granted decree for divorce on the sole ground that
there has been no resumption between the parties for a period of one
year after passing decree of restitution of conjugal rights. Learned
counsel for petitioner-husband further submitted that after passing
decree for restitution of conjugal rights, in the ancillary proceedings,
an attempt was made for reconciliation but it was failed from the side
of respondent-wife. There is sufficient evidence on record to show
that reconciliation could not be materialized because of conduct of
respondent-wife. Lastly, learned counsel for petitioner-husband
invited our attention to the observations recorded by this Court in
Family Court Appeal No. 19 of 2000, which was preferred by
respondent-wife against petitioner-husband challenging the order
passed by Principal Judge, Family Court, Aurangabad in petition C-4
of 1996 under sections 18 and 20 of Hindu Adoption and
Maintenance Act 1956. Learned counsel for petitioner-husband has
submitted that appeal deserves to be allowed by setting aside the
judgment and decree passed by the learned in charge Judge, Family
Court, Aurangabad on 24.3.2004 in petition No. 38 of 2001 and the
petition may be allowed and the marriage between the petitionerhusband
and respondent-wife be dissolved by decree of divorce
under Section 13(1-A) (ii) of the said Act.
4. The learned counsel for respondent-wife has submitted that
petitioner-husband has not made any attempt to execute the decree
for restitution of conjugal rights. The petitioner-husband has failed to
take any steps for restitution of conjugal rights and simply initiated
proceedings for divorce after expiry of statutory period. Learned
counsel for respondent-wife has further submitted that petitionerhusband
is taking benefit of his own wrong and the learned Judge of
the Family Court has therefore, rightly dismissed the petition for
divorce. Lastly learned counsel has submitted that the appeal devoid
of any merits and thus, liable to be dismissed with costs.
5. After hearing the parties at length, the following points arise for
our consideration and we have recorded our findings thereon for the
reasons mentioned below:-
i) Whether the petitioner-husband is
entitled for dissolution of marriage
by decree of divorce as provided
under section 13 (1-A) (ii) of Hindu ...In the
Marriage Act 1955? affirmative
ii) What order? ...As per final order
REASONS
6. In the present case, two questions arise for consideration,
firstly I) whether the petitioner-husband is entitled for dissolution of
marriage by decree of divorce on the ground that there has been no
restitution of conjugal rights between the parties for a period of one
year or upwards after passing of decree for restitution of conjugal
rights and secondly, whether the petitioner-husband has taken
advantage of his own wrong as provided under Section 23 (1) of the
said Act.
7. We therefore, refer to Section 13 (1-A) (ii) and Section 23 (1)
(a) to (e) of the said Act, which quoted below:-
“13. Divorce.-
(1) …....
(1-A) Either party to a marriage, whether solemnized before or
after the commencement of this Act, may also present a
petition for the dissolution of the marriage by a decree of
divorce on the ground -
(i) …....
(ii) that there has been no restitution of conjugal rights as
between the parties to the marriage for a period of (one year)
or upwards after the passing of a decree for restitution of
conjugal rights in a proceeding to which they were parties.”
“23. Decree in proceedings.- (1) In any proceeding under
this Act, whether defended or not, if the Court is satisfied-
(a) any of the grounds for granting relief exists and the
petitioner (except in cases where the relief is sought by him on
the ground specified in sub-clause (a), sub-clause (b) or subclause
(c) of clause (ii) of section 5), any way taking advantage
of his or her own wrong or disability for purpose of such relief,
and
(b) where the ground of the petition is the ground specified in
clause (I) of sub section (1) of section 13, the petitioner has not
in any manner been accessory to or connived at or condoned
the act or acts complained of or where the ground of the
petition is cruelty the petitioner has not in any manner
condoned the cruelty, and
(bb) when a divorce is sought on the ground of mutual
consent, such consent has not been obtained by force, fraud or
undue influence, and
(c) the petition (not being a petition presented under section
11) is not presented or prosecuted in collusion with the
respondent, and
(d) there has not been any unnecessary improper delay in
institution the proceeding, and
(e) there is no other legal ground why relief should not be
granted, then and in such a case, but not otherwise, the Court
shall decree such relief accordingly.”
8. The respondent-wife has strongly resisted the petition for
divorce on the ground that the petitioner-husband did not take any
step to execute the decree for restitution of conjugal rights and on
the next day of expiry of the statutory period, the petitioner-husband
has initiated proceeding for divorce claiming non compliance of
decree of restitution of conjugal rights. Thus, respondent-wife on
these basis contended that petitioner-husband could not be permitted
to take benefit of his own wrong. It is also the contention of the
respondent-wife that she is ever wiling to join the company of her
husband and her existence and identity as wife solely rests with the
company, association, care and companionship of her husband.
However, the respondent-wife did not step in witness box nor
examined any witness.
9. The learned Judge of the Family Court, Aurangabad in para 24
of the judgment has given reference to certain admissions given by
the petitioner-husband in his cross examination. It has recorded that
the petitioner-husband has admitted that after exparte decree of
restitution of conjugal rights passed in his favour, he did not make
any effort to bring respondent-wife back to matrimonial home nor
issued any notice to her to join his company. It has also recorded
that petitioner-husband further admitted that he has not filed any
execution proceeding before the Court. Lastly, the learned Judge of
the Family Court has given reference to the admission of petitionerhusband
that the petitioner-husband did not think that respondentwife
should join his company. The learned Judge of the Family Court
in para 45 of the judgment on the basis of aforesaid admissions,
concluded that it is the petitioner-husband who did not want to
cohabit with the respondent-wife. The learned Judge of the Family
Court has further observed that petitioner-husband did not make any
effort to bring her back to the matrimonial home and immediately on
expiry of the statutory period, on the next day filed petition for
dissolution of marriage. Learned Judge on the basis of the above
observations has lastly concluded that the petitioner-husband wanted
to take advantage of his own wrong and Section 23 of the said Act is
applicable in present case.
10. Learned Judge of the Family Court has failed to consider that
inspite of decree of restitution of conjugal rights passed in favour of
petitioner-husband, the respondent-wife had not gone back to the
petitioner-husband and on the other hand fought the litigation with
tooth and nails upto this Court for setting aside the decree of
restitution of conjugal rights passed in favour of petitioner-husband.
The respondent-wife did not step up in witness box before the
learned Judge of the Family Court, Aurangabad to show that even
though she had tried to set aside the decree for restitution of conjugal
rights by filing petitions and further proceeding before the appellate
forum, she was always willing to join the company of her husband.
11. There is no obligation cast by the statute on the party praying
for the relief of dissolution of marriage that he/she should call upon
other party against whom decree of restitution of conjugal rights has
been passed to satisfy the decree and that being so, it cannot be
said that the party asking for divorce on such ground has committed
wrong if he is not followed the said course. In order to constitute the
“wrong”, within the meaning of Section 23 (1) (a) of the said Act, it
has to be something more than mere disinclination of the petitioner husband
to agree to or an offer of re-union after filing of divorce
petition. The alleged misconduct must be serious enough to justify
the denial of the relief to which the petitioner is otherwise entitled to.
The word “wrong” envisaged under Section 23 (1) (a) of the Act has
to be a “wrong” of a kind different from a mere conduct of refusing to
resume conjugal relationship after passing the decree of restitution of
conjugal rights. In our considered opinion, the learned Judge of
Family Court, Aurangabad has thus taken a wrong view that refusal
of petitioner-husband to take back respondent-wife after institution of
divorce proceeding and not taking any steps for restitution of
conjugal rights during or after the statutory period is over, would
constitute a ground for refusing decree of divorce. There is nothing
on record to show that after passing decree of restitution of conjugal
rights and before making petition for divorce, the petitioner-husband
had created obstruction in complying with the decree by the wife or
that the petitioner-husband wanted that the decree should not be
complied with so that he may obtain divorce on the basis of said
decree for restitution of conjugal rights. In our considered onion, the
petitioner-husband is not in any way taking advantage of his own
wrong in this case. Thus, we are not inclined to hold that the
petitioner-husband has resorted to proceeding for restitution of
conjugal rights only as device to obtain the decree of divorce.
12. Learned counsel for the petitioner-husband has placed on
record copy of judgment and order passed by this Court in Family
Court Appeal No. 19 of 2000. On perusal of the same, we find that
being dissatisfied with the order passed by the learned Principal
Judge, Family Court, Aurangabad in petition No. C-4 of 1996, under
Section 18 and 20 of the Hindu Adoption and Maintenance Act 1956,
the respondent-wife had preferred the said appeal. This Court by
order dated 20.9.2006 dismissed the said Family Court Appeal with
observations that the respondent-wife was not eager and willing to go
and live with the petitioner-husband. This Court in para 16 of the said
judgment has made observations that it was the wife who had
withdrawn from society of the petitioner-husband willfully due to her
suspicion.
During pendency of the said maintenance proceeding, the
respondent-wife has made allegations against petitioner-husband
that he had illicit relations with his sister-in-law and he was giving
monetary help to her in view of their relation. According to her, due
to the said reason she was abandoned. On the backdrop of these
allegations, this Court in the said appeal No. 19 of 2000 has
observed that respondent-wife had moved an application with the
office of petitioner-husband reiterating the allegations therein of the
petitioner-husband having illicit relations with his sister-in-law. This
Court has further observed that while showing desire for
reconciliation and at the same time complaining to the superior
officers of the petitioner-husband making defamatory allegations
clearly shows that there were no bonafides in the offer made by
respondent-wife to go and live with the petitioner-husband. It has
observed that there was no real desire for reconciliation on the part
of respondent-wife.
13. It would not be out of place to mention here that in the present
case the respondent-wife had filed an application for amendment
whereby she wanted to add in her written statement that petitionerhusband
has performed second marriage and is also having a child
out of the said marriage. It was suggested to the petitioner-husband
in his cross examination that he has performed second marriage and
has a male child aged about 4 years. It has also suggested to the
petitioner-husband in his cross examination that he had brought a
lady from Shinde family as his second wife and that she is widow and
sister of his friend. We have serious doubts that by making such
allegations initially about development of illicit relations with sister-inlaw
and in the present divorce proceeding about performing of
second marriage, whether respondent wife is really eager and willing
to join the company of her husband. On the other hand,
respondent-wife remained absent when this Court has referred the
matter for mediation. The mediator has informed this Court that even
though the notices were issued to the respondent-wife informing her
to remain present for mediation, she remained absent and
considering the reluctance of the respondent-wife mediation in this
case was failed.
14. Learned counsel for respondent-wife has placed reliance on
the judgment of Hon'ble Supreme Court in the case of Chetan Dass
vs. Kamla Devi reported in 2001 Law Suit (SC) 675, wherein the
Hon'ble Supreme Court in para 14 has made following observations:-
“14. Matrimonial matters are matters of delicate human and
emotional relationship. It demands mutual trust, regard, respect, love
and affection with sufficient play for reasonable adjustments with the
spouse. The relationship has to conform to the social norms as well.
The matrimonial conduct has now come to be governed by Statute
framed, keeping in view such norms and changed social order. It is
sought to be controlled in the interest of the individuals as well as in
broader perspective, for regulating matrimonial norms for making of a
well knit, healthy and not a disturbed and porous society. Institution
of marriage occupies an important place and role to play in the
society, in general. Therefore, it would not be appropriate to apply any
submission of “irretrievably broken marriage” as a straight jacket
formula for grant of relief of divorce. This aspect has to be considered
in the background of the other facts and circumstances of the case.”
In this case, the defence of respondent-wife for having justified
reason to live away from the husband has been found to be correct.
However, in the present case, the facts are altogether different.
15. The petitioner-husband has proved that there is no resumption
and cohabitation for more than one year or upwards after passing
decree of restitution of conjugal rights in his favour . We do not find
that the petitioner-husband wanted to take advantage of his own
wrong, as provided under Section 23(1) of the said Act. We
accordingly answer the point No.1 in affirmative.
16. Accordingly, the appeal is hereby allowed. The judgment and
decree passed by the In charge Judge, Family Court, Aurangabad
dated 24.3.2000 in Petition No. 38 of 2001 is hereby quashed and
set aside. The petition No. 38 of 2001 is hereby allowed and the
marriage between the petitioner-husband Arun Narayanrao Marathe
and respondent-wife Varsha Arun Marathe is hereby dissolved by
decree of divorce. Decree be drawn up accordingly.
17. In the circumstances, there shall be no order as to costs.
18. At this stage, learned counsel appearing for respondent-wife
prays for direction to stay the operation of this judgment for a period
of four weeks. However, for the reasons recorded in the judgment,
request need not be considered. Oral request made stands rejected.
(V. K. JADHAV, J.) ( R. M. BORDE, J. )
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