BEDO Vs. RAJINDER SINGH

JUDGEMENT

(1.) THIS is wife's appeal directed against the judgment and decree of District Judge, Sonepat whereby on a petition under Section 13 of the Hindu Marriage Act, marriage between the parties has been dissolved.

(2.) IN brief the facts are that marriage between the appellant and respondent-husband was solemnised in the year 1978. Out of the wed-lock two children; one daughter and a son, were born. It is the case of the wife that in the year, the younger brother of respondent-husband, namely, Satbir died, the dispute between the parties to the marriage started when her husband and his family members wanted to perform Karewa marriage of her husband with the wife of his brother who had died. It is further her case that she was severely beaten and maltreated by the respondent and was turned out of the matrimonial house. On the other hand, it is the case of husband that appellant had withdrawn from the society without any sufficient cause and he himself had been maintaining the two children. It is also his case that since his wife refused to perform her matrimonial obligations, he filed petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and that petition was decreed on 13. 5. 1987. About a month after the expiry of statutory period of one year, petition for divorce was filed by the husband alleging that despite his efforts, appellant has not come to live with him. In her written statement, wife-appellant admitted that a decree for restitution of conjugal rights had been passed against her, but she stated that it was a kind of consent decree because she had made statement on oath that she shall accompany her husband. She submitted that with a view to defeat her petition under Section 125, Criminal Procedure Code, her husband is seeking divorce. She also alleged that her husband is having illicit relations with the wife of his younger brother. The learned District Judge on finding that appellant is firm in not living with her husband and despite the decree under Section 9 of the Act has not come to live with her husband or is complying with the decree, held that the husband is entitled to get the marriage dissolved by a decree of divorce.

(3.) AFTER hearing the Counsel for the parties, I am of the view that there is no merit in the appeal. It is not in dispute that the appellant had withdrawn from the society of the respondent without any sufficient cause and on finding this, a decree for restitution of conjugal rights had been passed against her. It has also come on record that two children of the parties are residing and are being maintained by the respondent. Counsel for the appellant has not been able to bring any evidence to my notice which would show that after the passing of decree under Section 9 of the Act, she made any effort to go to her matrimonial home and to perform her matrimonial obligations. In absence of any evidence in this regard, the objection that respondent is taking advantage of his own wrong cannot be sustained. Under Section 13 (1-A) (ii) of the Act, either of the parties can apply for dissolution of marriage by decree of divorce if it is able to show 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 proceedings in which they were parties. It has been held by a Full Bench of his Court in Bimla Devi v. Singh Raj, 1977 HLR 272, that "the plea that the party against whom such decree was passed failed to comply with the decree or that the party in whose favour the decree was passed took definite steps to comply with the decree and the defaulting party did not comply with the decree and therefore, such an act be taken to be taking advantage of his or her own wrong would not be available to the party, who is opposing the grant of divorce under Clause (ii) of Sub-section (1-A) of Section 13 of the Act. . . . . . " As has been pointed out, the policy of the legislature by making amendments to the provisions of Section 13 appears to be to liberalise divorce so that the broken marriages are dissolved and the parties to the marriage are freed from the bonds as they are unable to live together in spite of opportunities having been given to resolve the differences and to live together. It may well be that the spouse who obtained the decree for restitution of conjugal rights may change his or her mind and may not be willing to live with the other spouse after the passing of the decree. It would further be seen that a spouse who has suffered a decree of restitution of conjugal rights, has already been adjudged to have left the company of the other spouse without reasonable excuse. The said wrong was committed much before the passing of the decree for restitution of conjugal rights and it cannot be said that the said wrong has been committed after the passing of the decree for restitution of conjugal rights. Moreover, living separately from the spouse cannot be regarded as a wrong as the term "wrong" as contemplated in Section 23 (1) (a) of the Act contemplates causing of some injury to the other side. In this view of the matter, the decision of the learned Single Judge, which was affirmed in L. P. A. in Chaman Lal's case (supra), in our opinion, is not correctly made, similarly, a Single Bench decision of the Bombay High Court in Laxmibai Laxmichand Shah v. Laxmichand Ravail Shah, AIR 1968 Bombay 332, in our view, is not the correct position of law. In view of this binding precedent, the contention of Counsel for the appellant that respondent having failed to state in his petition for divorce the steps taken for execution of decree for restitution of conjugal rights is fatal to the relief asked for, is without any merit.