BALBIR KAUR ALIAS RAJU Vs. JAGTAR SINGH

JUDGEMENT

(1.) The appeal is by the wife assailing the decree of dissolution of marriage granted in favour of the husband. The divorce was sought on the ground that despite a decree for restitution of conjugal rights that had been granted in favour of the husband on 01.08.1997, there was no resumption of cohabitation for more than a year and, therefore, the husband is entitled to a decree for divorce. The respondent had contended in response to the husband's plea that the husband was guilty of several acts of cruelty, that she was not beautiful or that she was not employed in any government service. It was also contended that even subsequent to the decree for restitution, there had been several panchayats urging the husband to take the wife back but the husband was reluctant and he has allowed his own misconduct to be taken advantage of.

(2.) All pleas relating to the past conduct alleged against the husband will have no value if we examine the case from a limited perspective of the non-compliance of the directions contained in a decree for restitution of conjugal rights. A plea justifying a separate living by the wife will lose its value, the moment there is an intervening decree that entitles the husband to secure the company of the wife through a decree for restitution of conjugal rights. It is not now denied that a decree for restitution was passed on 01.08.1997 and the petition for divorce was filed a year subsequent thereto. It was faintly contended at the trial that even against the decree for restitution, the wife had preferred an appeal to the High Court but it was dismissed. The present petition for divorce itself had been filed even when the proceedings were pending before the High Court. The trial Court examined this contention, as well but held that no party was able to give any details about the institution of the appeal and the subsequent dismissal and, therefore, took the date of decree of restitution of conjugal rights passed on 01.08.1997 to constitute the valid cause of action for a divorce sought on the ground of non-resumption of cohabitation, as provided under Section 13-1A(i) of the Hindu Marriage Act.

(3.) When a decree for restitution is passed, the burden will shift on the wife to show that she had made every effort to resume cohabitation. A mere oral assertion that there had been panchayats held to persuade the husband to take the wife back will come to no avail. Not even the names of the panchayatees was mentioned nor were the dates of alleged meetings of the panchayats took place mentioned. Learned counsel for the appellant is unable to better his stand before the High Court in any way and even now he is not able to give any details or a basis for his contention that there had been any interventions sought through panchayats for the parties to live together. The trial Court, under such circumstances, held that even the offer of the wife to resume cohabitation had no basis and there being no plea or proof that the husband was trying to take advantage of his own wrong granted the husband the decree for divorce. Even a disinclination by a spouse for reunion after a decree for restitution of conjugal rights, was held in Dharmendra Kumar v. Lisha Kumar, 1977 4 SCC 12 not to constitute a matrimonial wrong under Section 23(1)(a) to disqualify the spouse for obtaining a decree for divorce. I find that the lower Court has considered every conceivable point that could be urged from the correct factual and legal perspective and I have no option but to affirm the said finding and dismiss the appeal.