Harshaben v. Prafulchandra Shantilal Shah — 1990 DIGILAW 148 (GUJ)

JUDGMENT : S.D. DAVE, J. 1. This First Appeal has been directed against the Judgment & Decree pronounced by the Ld. Judge, City Civil Court, Court No. 15, Ahmedabad, in Hindu Marriage Petition No. 131 of 1985 granting the decree of divorce in favour of the original applicant husband. 2. The present Appellant is the original opponent wife, while the present Respondent is the original applicant husband. 3. The original applicant husband Prafulchandra Shantilal Shall had instituted the Hindu Marriage Petition against the original opponent wife Harshaben Shah for obtaining a decree of divorce Under Section 13(1)(a)(ii) of (he Hindu Marriage Act. It is his case that the marriage between the parties had taken place on 28th April, 1980 and Godhra according to Hindu Vedic Rites and that a daughter has been born out of the above said wedlock, who was aged about 31/2 years at the time of filing of the petition. It is the case of the applicant husband that the opponent wife had left the matrimonial home on 18.8.82 without any reasonable excuse and thereafter -he had filed Hindu Marriage Petition No. 109 of 1983 for the restitution of the conjugal rights against the opponent wife. The City Civil Court at Ahmadabad was pleased to grant a decree of restitution of conjugal rights by the orders dated 30th April, 1984 in favour of the applicant husband and against the opponent wife. It is further the case of the applicant husband that after obtaining the above said decree of restitution of conjugal rights he had sent his brother Pankaj to opponent wife with a view to persuade her to shift to matrimonial home but she could not be persuaded. Later on, according to the case of the applicant husband, he had sent two letters to the opponent wife dated 15th March 1985 and 25th March 1985 requesting her to revert to the matrimonial home but she has not acted accordingly. Therefore it is the case of the applicant husband that there has h--en no restitution of conjugal rights or co-habitation between the parties to the marriage after a period of more than one year after passing of the decree, he is entitled to obtain a decree of divorce or dissolution of marriage. 4. Therefore it is the case of the applicant husband that there has h--en no restitution of conjugal rights or co-habitation between the parties to the marriage after a period of more than one year after passing of the decree, he is entitled to obtain a decree of divorce or dissolution of marriage. 4. The above said case of the petitioner husband has been challenged by the opponent wife by filing reply at E. 13 She has denied the allegation made out by petitioner husband and has contended that the petitioner husband used to pick up quarrels with her and that she was driven out of the matrimonial home and ultimately she was obliged to file -the Maintenance Application at Godhra. It is her case at later on some talks of compromise were going on and therefore she had ultimately withdrawn the above said application for maintenance. It is also contended by her that the decree in the formal Hindu Marriage Petition was obtained by the husband behind her back because her daughter was not keeping well and she was not in a position to attend the Ahmadabad Court. It is also her say that she is ready and willing to go and reside in the company of the petitioner husband if he is desirous of keeping her properly without any rental or physical cruelty. It is on the above said basis that the opponent wife has prayed for the dismissal of the petition of divorce against her. 5. From above Said pleadings of the parties the Ld. Trial Judge had framed issues at Ex. 17 and after the appreciation of the evidence on record, the Ld. Trial Judge has come to the conclusion that the petitioner was able to establish that after passing of the decree for restitution of conjugal rights against the wife there was no co-habitation for a period of more than one year and that therefore the petitioner is entitled to a decree of divorce. Reaching to the above said conclusion the Ld. Trial Judge has allowed the petition of the husband and has ordered that the marriage between the parties shall stand dissolved by decree of divorce. Being aggrieved and dissatisfied with the above said judgment dated 19th January, 1987, and the consequent decree that the present appeal has been filed by the appellant, who is the original opponent wife. 6. Mr. Mohit S. Shah, Ld. Being aggrieved and dissatisfied with the above said judgment dated 19th January, 1987, and the consequent decree that the present appeal has been filed by the appellant, who is the original opponent wife. 6. Mr. Mohit S. Shah, Ld. Advocate appears on behalf of the appellant while the respondent has been represented by Ld. Advocate Mr. D.M. Shah. 7. Mr. Mohit S. Shah, Ld, advocate who appears on behalf of the appellant wife has contended that the Ld. Trial Judge has committed a grave error in granting the decree of divorce in favour of the husband. Elaborating his broad submissions Mr. Shah has contended that the marriage between the parties had taken place at Godhra and the couple was a staying at Ahmadabad and that the husband had filed the HMP for restitution of conjugal rights and that the ex-parte decree was taken out because the wife was. not in a position to attend to the Court because of the sickness of her daughter. Mr. Shah has further contended that even after passing of the decree of the restitution of conjugal rights the appellant wife had tried her level best to get an entry into the matrimonial home but she was driven out by the respondent husband and her attempts to get an entry inn matrimonial home were foiled by the husband. Mr. Shah, therefore has urged that the instant one case in which the respondent husband wants to take the advantage or benefit of his own wrong, which is not permissible to him. Mr. Shah therefore has urged that the present appeal deserves to be allowed and the judgment & decree under appeal required to be set aside and the petition of the husband for decree of divorce against the wife requires to be dismissed. 8. But Mr. D.M, Shah, Ld. Advocate who appears on behalf of the respondent husband has contended that there is absolutely no evidence to warrant the conclusion that after passing of the decree for restitution of conjugal rights the wife had gone to the house of the husband and that she was prevented by the husband from getting an entry into matrimonial home. Mr. Shah therefore has urged that the Ld. Trial Judge was perfectly justified in ordering a decree of divorce in favour of husband and against the wife. It is therefore urged by Mr. Mr. Shah therefore has urged that the Ld. Trial Judge was perfectly justified in ordering a decree of divorce in favour of husband and against the wife. It is therefore urged by Mr. Shah that the present appeal deserves to be dismissed, 9. It requires to be appreciated that the marriage between the parties had taken place at Godhra according to Hindu Vedic Rites and that thereafter they used to stay at Ahmedabad as husband & wife. It is also undisputed that out of this wedlock a daughter has been born which is not keeping well, according to the case put forth by the appellant wife. 10. It is also beyond dispute that the husband had filed the Hindu Marriage Petition No. 109 of 1983 for obtaining a decree of restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955. The above said proceedings had determined against the wife and in favour of the husband and it appears that according to the case of the husband the wife had not riverted to the matrimonial home and therefore the decree under appeal case came to be pronounced by the Ld. Trial Judge. 11. The contention raised by Mr. Mohit Shah, Ld. Advocate appearing on behalf of the appellant wife is that after the pronouncement of the decree of restitution of conjugal rights against the wife she had tried to get her entry into the matrimonial home but she was prevented by the husband from doing so and all her efforts were came to be foiled by the husband and that therefore the husband cannot be allowed to take the advantage or benefit of his own wrong. la support of his contention, Mr. Mohit Shah the Ld. advocate appearing on behalf of the appellant wife had placed reliance upon certain case laws. 12. Firstly, Mr. Mohit Shah has placed reliance upon by Mysore High Court decision in M. Someswara Appellant v. Leelavati Respondent, AIR 1968 Mysore Pg. 274. But looking to the head notes of the above said Mysore High Court pronouncement it appear very clearly that the above said case law would not assist Mr. Shah in his submissions before this Court. In the above said case before the Mysore- High Court there was the non-compliance with the decree for restitution of the conjugal rights and there was an offer by the wife to fulfil the marital obligation. Shah in his submissions before this Court. In the above said case before the Mysore- High Court there was the non-compliance with the decree for restitution of the conjugal rights and there was an offer by the wife to fulfil the marital obligation. The husband had refused the access to the wife and denied his society to her. It is in this background of the case that the Mysore High Court had taken the view that the husband cannot allege non-compliance by wife of a decree for restitution of conjugal rights. 13. It appears that Mr. Mohit Shah, L.A appearing on behalf of appellant wife wants to urge by placing reliance upon the above said Mysore High Court decision that there was an offer by the wife to fulfil the marital obligation and that the husband had refused access to the wife and had denied his society to her. As it would be come to be clear later on, the facts in the instant case are entirely different. In view of .this position the above said Mysore High Court decision on which Mr. Shah has placed reliance would not assist him in his submissions before this Court. 14. The second decision on which Mr. Mohit Shah has placed reliance is the Bombay High Court decision in Laxmibai Laxmichand Shah Appellant v. Laxmichand Ravaji Shah, Respondent, AIR 1968 Bombay Pg. 332. In this decision rendered by the Ld. Single Judge of the Bombay High Court there was a decree for restitution of conjugal rights in favour of the wife and no resumption of cohabitation had taken place for requisite period. It was held & decided that the Court was competent to dismiss the petition as the husband is at fault. 15. The third decision on which Mr. Mohit Shah placed reliance the of Punjab & Haryana High Court decision in Smt. Shakuntala Tandan, Appellant v. Sardari Lal Tandan, Respondent, AIR 1972 Punjab & Haryana Pg. 29. In this decision it has been observed that if it is admitted by the wife that she as a fact did not care to comply with the decree for restitution of conjugal rights passed against her, there is no need of any evidence being led by the husband. 29. In this decision it has been observed that if it is admitted by the wife that she as a fact did not care to comply with the decree for restitution of conjugal rights passed against her, there is no need of any evidence being led by the husband. Looking to the head notes it appears very clearly that there was admission by the wife of the non compliance of the decree of restitution of conjugal rights in the .written statement. It is in view of this position that the Punjab & Haryana High Court had taken the view that there was no need of any evidence being led by the husband. 16. The last decision under which the Ld. advocate Mr. Mohit Shah had tried to take shelter is the Calcutta Court decision in Smt. Nita Gupta, Appellant v. Prabir Kumar Gupta, Respondent, AIR 1989 Calcutta Pg. 248. In this decision it appears that the husband had deliberately thwarted all the attempts on part of the wife to resume conjugal life by refusing her any entry in the matrimonial home and driving her away from the door-step by closing the doors against her face. Looking to this peculiar aspect of the case the Division Bench of the Calcutta High Court had reached the conclusion that their was deliberate act and attempt on part of the husband to prevent, obstruct and frustrate the restitution and therefore the husband should not be allowed to take advantage of his own wrong and he cannot be granted a decree of dissolution of marriage. 17. The above said decision rendered by the High Court of Calcutta goes to show very clearly that if the husband has thwarted all the attempts on part of the wife to resume cohabitation or conjugal life by refusing her any entry in the matrimonial home then the husband should not be allowed to take advantage of his own wrong and decree of divorce cannot be given in favour of the husband and against the wife. But as noticed above, the said decision has got its own facts which are to the effect that the husband had deliberately thwarted 'all the attempts on the part of the wife to resume cohabitation. Therefore, before coming to the conclusion in the instant case also that the husband has thwarted all the attempts on part of the wife to resume cohabitation. Therefore, before coming to the conclusion in the instant case also that the husband has thwarted all the attempts on part of the wife to resume cohabitation. A reference shall have to be made to the pleadings and evidence adduced by the parties. 18. Firstly it requires to be appreciated that the appellant wife has tried to develop a case during the course of the trial that she had tried to get an entry in the matrimonial home and that she had gone to her husband's home in company of her relations but she was not allowed an entry in the house and therefore she was obliged to return to her parental house at Godhra. But it appears that this very contention was not raised in the reply or W.S. which was filed by her at the earlier juncture with a view to pose a challenge to the case of the husband. If at all it was the case of the appellant wife that she had tried her best to get an entry into the matrimonial house but her all efforts were thwarted by the scheming husband then she would have stated so very clearly in the reply or W.S. which came to be filed by her at the relevant time. It is an admitted position that no such contention has been taken by her in the reply or W.S. Any-how, a reference to her reply of W.S. would go to show that she had tried to narrate the circumstances in which the decree of restitution of conjugal rights came to be passed against her. She has also contended that her daughter is not keeping well and she was required to be operated repeatedly. It is also contended by her that she was driven out from the matrimonial home by the husband after physical and mental cruelty. In short it requires to be appreciated' that the appellant wife has not raised any contention in the W.S. or reply saying that she had gone to the matrimonial house with a view to resume cohabitation but her all efforts were thwarted by the scheming husband, 19. The husband Prafulchandra his examined himself at Ex. 23 and has stated that after the decree of restitution of conjugal rights cohabitation has not been resumed and there is no conjugal relationship between the parties. The husband Prafulchandra his examined himself at Ex. 23 and has stated that after the decree of restitution of conjugal rights cohabitation has not been resumed and there is no conjugal relationship between the parties. He has also stated that even after obtaining the decree of restitution of conjugal rights he had sent his brother at the house of the wife with a view to persuade her but she had not reverted to the matrimonial home. The say of the husband Prafulchandra is that later on he had sent two letters but the above said letters were never replied by the wife. During cross examination a suggestion has been made to the husband that at the time of filing of the earlier petition for restitution of conjugal rights the wife had gone to the husband's house and that she was refused the entry. It was also suggested to him that after the service of summons in the earlier proceedings the relations of the wife had come to his house in company of the wife but he had refused to accept her in the matrimonial home, A suggestion was also made to the husband to the effect that after obtaining a decree of the restitution of conjugal rights he had not sent his brother to the house of the wife at Godhra. These suggestions came to be repelled by the husband. It therefore becomes clear that during the cross examination also it was never suggested to the respondent husband and that. after obtaining the decree of restitution of conjugal rights, though the wife was ready to get an entry into the matrimonial home she was prevented by the acts & deeds of the husband. 20. It is indeed true that the appellant Harshaben in her testimony at Ex. 26 has said that after the decree of restitution of conjugal rights her uncle Virchandrabhai had accompanied her to the matrimonial home but her mother-in-law had refused her entry in the house. Her say further is that later on she had gone to her husband's house again on the next day along with her maternal aunty and at that time the husband who was present in the house had refused her entry in the house. Her say further is that later on she had gone to her husband's house again on the next day along with her maternal aunty and at that time the husband who was present in the house had refused her entry in the house. She had further stated that after obtaining a decree of restitution of conjugal rights the brother of the husband had never come to her house with a view to outer her back to her matrimonial house. During cross examination she has stated that she has acquired a graduate degree in arts and that the reply or W.S. at Ex. 13 was signed by her after reading and understanding the same. The above said question appears to have been put to the wife with a view to show that though she says that she had tried to resume cohabitation after the decree of conjugal rights, she had not taken such a contention in the W.S. or the reply. Irrespective of the above said position, Mr. Mohit Shah has candidly conceded that no specific contention was ever raised by the appellant wife in the W.S. or reply. 21. In view of what has been stated above, it becomes clear that though the appellant wife has tried to say during the course of her evidence before Ld. Trial Judge that she was ready & willing to go to the matrimonial home and that in fact she had twice tried to get an entry in the matrimonial home but her efforts were thwarted by the husband, no such contention was ever raised in the reply or the W.S. It requires to be appreciated that the appellant wife is an educated lady and she was being represented by a senior lawyer before the Ld. trial Judge. In view of this position if any attempts were to be made by the appellant wife to get an entry in the matrimonial house, necessarily there would be some reference of the same in the pleadings. But the absence of this contention in the pleadings would go to show that the case taken up by the appellant wife during the course of trial is clearly an after thought. Moreover it also requires to be appreciated that no such case has been put forth by the appellant wife during the cross examination of the respondent husband also. But the absence of this contention in the pleadings would go to show that the case taken up by the appellant wife during the course of trial is clearly an after thought. Moreover it also requires to be appreciated that no such case has been put forth by the appellant wife during the cross examination of the respondent husband also. This position also would go to show that even at the stage of the cross-examination of the respondent husband such a case was not taken up by the wife. On the contrary it appears that the wife taken up such case only at the time of adducing her own oral testimony. Looking to this position the case put forth by the appellant wife that she had tried to get an entry in the matrimonial home with a view to resume cohabitation cannot be accepted. Moreover it also requires to be appreciated at this juncture that though her say is that on two occasions her relations, namely her uncle and later on her maternal aunt had accompanied her to the matrimonial home but they have not been examined. This also shows that the case put forth by the appellant wife in this respect is not a genuine one. Therefore it becomes clear that though the wife had tried to say during the course of evidence at the time of the trial at a belated stage that her efforts to get an entry into matrimonial home were foiled by husband, there is no reliable evidence in this respect. Therefore the case put forth by the appellant wife that she had tried to resume cohabitation was rightly rejected by the Ld. Trial Judge. There is no reason to interfere with the above said pronouncement of the Ld. Trial Judge. 22. In view of the above said factual position the decision rendered by the Division Bench of the Calcutta AIR 1989 Pg. 248, would not grant any assistance to Mr. Mohit S. Shah the Ld. advocate appearing on behalf of the appellant wife. This shall be so because in the above said case before the Division Bench of the Calcutta High Court the facts shows very clearly that the husband had deliberately thwarted all the attempts on the part of the wife to resume cohabitation by refusing her any entry in the matrimonial home. advocate appearing on behalf of the appellant wife. This shall be so because in the above said case before the Division Bench of the Calcutta High Court the facts shows very clearly that the husband had deliberately thwarted all the attempts on the part of the wife to resume cohabitation by refusing her any entry in the matrimonial home. As noticed above the facts of the instant case are entirely different. 23. It therefore becomes clear that the Ld. Trial Judge was perfectly justified in coming to the conclusion that the husband was entitled to a decree-of divorce on the ground that after having obtained the decree of restitution of conjugal rights the cohabitation was not resumed for a period of more then one year. It therefore further becomes clear that the contentions raised by Mr. Mohit S, Shah the Ld. Advocate appearing on behalf of the appellant wife in this respect cannot be accepted, the appeal therefore would fail. 24. The Civil Application No. 2718 of 1990 was filed on behalf of the respondent husband praying for vacation of the ad-interim orders and for certain directions. The Civil Application No. 140 of 1990 was filed by the appellant wife seeking certain orders for the deposit of the amount of maintenance granted in favour of the minor daughter. The Civil Application No. 202 of 1987 has been submitted on behalf of appellant praying for the staying of the operation of the judgment & decree under appeal. 25. Mr. D.M. Shah, Ld. advocate who appears on behalf of the respondent husband has urged that at present the maintenance is being paid to the minor daughter at the rate of Rs. 200/- per month in persuance of the interim orders pronounced by this Court. Mr. shah has urged, that looking to the position that the wife is an earning member and she works as senior teacher and draws atleast an amount of Rs. 2000/- per month, the above said amount ordered at interim stage by the High Court should not be disturbed and that the husband be permitted to deposit or invest the above said amount in the name of the minor and the minor would be allowed to receipt the interest only. 2000/- per month, the above said amount ordered at interim stage by the High Court should not be disturbed and that the husband be permitted to deposit or invest the above said amount in the name of the minor and the minor would be allowed to receipt the interest only. But looking to the fact that the husband also earns and his salary at the time of institution of the proceedings before the Trial Court was of more than Rs. 700/- and further looking to the fact that there is a hike in the salary at present, it would be in fitness of things and it would meet the ends of justice if the husband is ordered to pay the maintenance to minor daughter at the rate of 250/- Rs. two hundred fifty only) per month. Looking to the fact that the wife would be required to spend for minor daughter regularly every month and further looking to the fact that the minor daughter is suffering from some congenial defect and she has undergone repeated operations for the same it cannot be accepted that the husband should be allowed to deposit or invest the amount in the name of the minor. 26. Therefore from what is stated above it becomes clear that the First Appeal No. 127 of 1987 fails and the same is hereby dismissed with no order as to costs. The judgment & decree under appeal are hereby upheld and Confirmed. 27. Civil Application No. 2718 of 1990, Civil Application No. 140 of 1990 and the Civil Application No. 202 of 1987 shall stand disposed off in view of the above said orders. The interim orders issued below Civil Application No. 292 of 1987 shall stand vacated. 28. At this juncture Mr. Mohit S. Shah for the appellant makes an oral request for staying the operation of these orders for some time to enable his client to file the appeal and to obtain the necessary ad-interim orders. The request is accepted. The operation of these orders is stayed upto 9th November, 1990, accordingly. Order accordingly.