BAL KISHAN Vs. URMILA

JUDGEMENT

(1.) THE present appeal is directed against the judgment of Family Court No. 1, Jaipur dated 6. 7. 2002 whereby the divorce petition filed by the husband Shri Bal Kishan Sharma has been rejected by the Family Court.

(2.) THE case appears to have a chequered history and indicates the persistence of the husband to somehow wriggle out of the matrimonial bonds with the respondent-Smt. Urmila Sharma. Both the parties got married on 23rd February, 1985 and according to the appellant they lived as husband and wife together only for a period of four months and ever since 19. 6. 1985 they are living separately. Earlier the appellant-husband filed a petition for declaration of the marriage to be a nullity u/s. 12 of the Act, which was rejected by the Family Court on 12th December, 1986 and the appeal against that was also rejected by High Court on 13. 12. 1988. On the other hand respondent-wife filed an application u/s. 9 of the Act for restitution of conjugal rights, which was decreed by the Family Court on 12th December, 1986. However, according to the appellant husband since the parties could not live together even thereafter, he again filed a petition u/s. 13 of the Act seeking a decree of divorce on 2nd March, 1990 on the ground of cruelty, desertion and non resumption of co-habitation for a period of more than one year after passing of the decree of restitution of conjugal rights in favour of the wife. THE said petition was also again rejected by the Family Court on 25. 3. 1994, against which the appellant- husband again preferred an appeal before this Court, which came to be disposed of by Division Bench on 30th August, 2001. While holding that the allegations of cruelty and desertion were rightly found as not proved by the appellant-husband, the Division Bench remitted the case back to the Family Court for addressing itself to the question as to whether in the facts and circumstances of the case, the appellant-petitioner was taking advantage of his own wrong in seeking divorce on the ground u/s. 13 (1a) (ii) of the Act. THE Division Bench allowed hearing before the Family Court confined to this point alone and if the Family Court considered it necessary, it could give fresh opportunity to the parties to lead evidence on this point alone. In these circumstances the matter came up before the Family Court and was disposed of on 6. 7. 2002 by the impugned judgment.

(3.) AS against this, Mr. N. K. Joshi, learned counsel appearing for the respondent-wife submitted that the case of the respondent-wife was fully covered by Section 23 (1) (a) of the Act and the appellant-husband could not be allowed to take advantage of his own wrong and since he was leading an adulterous life after a decree of restitution of conjugal rights in favour of the respondent-wife, he could not have a decree of divorce in his favour merely to legalize his adulterous life, which he was leading with one Vimlesh and was even had children from her. He submitted that the additional evidence was taken by the Family Court in pursuance of the directions of the Division Bench and since the appellant-husband failed to rebut the additional evidence, which was brought before the Family Court to prove the adulterous life of the appellant-husband, he could not be allowed to take advantage of his own wrong and was not entitled to a decree of divorce. The allegations of cruelty and desertion had already been held as not proved in the earlier round of litigation upto this Court and the appellant-husband had already lost. He relied upon the judgment of Delhi High Court in Santosh Kumari vs. Kewal Krishan Sabharwal (AIR 1985 Delhi 393) & Meera Bai vs. Rajendra Kumar (AIR 1986 Delhi 136 ).