SHAKUNTLA Vs. LALJI PRASAD BAJAJ

JUDGEMENT

(1.) This appeal by the wife under Sec. 28 of the Hindu Marriage Act is against the decree for divorce passed against her and in favour of the respondent husband on a Finding that after the earlier decree for judicial separation passed in Civil Suit No. 4-A of 1972, decided on 4-10-1974, and confirmed by this Court in first Appeal No. 250 of 1974, decided on 18-1-1978, there has been no resumption of cohabitation between the parties for a period of more than one year. That a decree for judicial separation was so passed between the parties and was affirmed in appeal by the High Court is no more in dispute. The present suit filed on 8-2-1978 was admittedly more than one year after passing of the decree for judicial separation. Although before the lower Court, the appellant wife tried to establish that there had been resumption of cohabitation after of that decree at three places, namely Itarsi, Bankheri and this assertion by her could not be established at the stage of trial-No witness from either of these places was examined. Her evidence been rightly disbelieved by the lower Court and for good reasons which seed not repeat here. After the examination of the evidence I am fled that the story of cohabitation put forward by the appellant a myth and highly improbable. It is not possible to believe that on hand has Prosecuting her appeal. In the High Court at the same time bited with the respondent. If really it were so, she would have not in stating so in the first appeal before this Court. The fact that she did not take steps to get the decree for judicial separation rescinded under Sec. 10(2) of the Act also is a factor which negatives her contention that there has been resumption of cohabitation. Indeed, learned counsel for the appellant did not lay much stress to challenge this finding recorded by the lower Court I also agree with the lower Court that there had been no resumption of cohabitation after passing of the decree for judicial separation on 4-10-1974.

(2.) Shri P.S. Gotholwalo, learned counsel for the appellant, however argued that this was a fit case in which instead of a decree for devorce, a decree for judicial separation ought to have been passed in terms of Sec. 13-A of the Act. The contention is fallacious. On a finding that there had been no resumption of cohabitation after the passing of the decree for judicial separation during the prescribed period, the respondent had become entitled to a decree for divorce in terms of Sec. 13(-I-A) (i) of the Act. It is true that Sec. 13-A does permit a Court except in cases mentioned thereunder to pass a decree for judicial separation instead of a decree for divorce if the Court considers it just to do so having regard to the circumstances of the case. I fail to see how this provision is attracted in the prese it case. The respondent already has decree for judicial separation in his favour. The only relief which can be granted or denied to him is the relief of divorce. It will be contradiction in terms to hold that under the law he has become entitled to that relief on a finding that there has been no resumption of cohabitation within the prescribed period and the same time to hold that a decree for judicial separation alone should he passed. Denying him a decree for divorce in these circumstances would amount to dismissal of his claim which in my opinion, is not permissible on a finding that there had been no resumption of cohabitation. The contention is, therefore, rejected.

(3.) Equally devoid of substance is the contention based on Sec. 23(1) that the respondent should not be given advantage of his own wrong. It was suggested that in the earlier litigation and also in the present litigation, the interim monthly alimony was fixed at Rs. 50.00 under Sec. 24 of the Act and therefore, for want of paucity of funds the appellant could not adequately defend the action. It is apparent that the alimony was fixed by the Court. The appellant never applied for its enhancement. The respondent, therefore, cannot be said to be guilty of taking any advantage of his own wrong. In fact, he cannot be said to have committed any wrong inasmuch as the interim alimony was fixed by the Court and remained unaltered so far. This contention is also rejected.