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2000 DIGILAW 185 (MAD)

B. Murthy v. Nirmala

2000-02-11

K.P.SIVASUBRAMANIAM

body2000
Judgment : This appeal is directed against the order of the learned District Judge, Nilgiris in O.P.No.46 of 1989. The petitioner/husband is the appellant in the above appeal. 2. The said O.P. was filed by the husband under Sec.13(1)(A)(ii) of the Hindu Marriage Act, 1955. It was contended by the husband that they belong to Hindu Badagar Community and they were governed by Hindu Law and Custom. He was married to the respondent on 19. 1983 at Mattakandi village as per the custom prevailing in their community. After the marriage, the respondent was living with the petitioner for about seven months. During the period of her stay, the respondent was extremely quarrel some with. The petitioner and the other members of the petitioners family. Throughout her stay, the respondent by her cruel behaviour had caused untold suffering and mental agony to the petitioner. The petitioner was subject to unbearable mental cruelty and the respondent could not change her attitude inspite of the advice given by the petitioner. During the month of May, 1984, the respondent picked up a quarrel with the petitioner and other member of the petitioners family and left the house voluntarily and went to the house of her parents and eversince that day, she has been residing there. She did not come and join with the petitioner she had not only treated the petitioner with cruely but also deserted him without reasonable cause. Therefore, there was no other alternative except to seek for divorce and the petitioner had sent a notice dated 17. 1985 calling upon the respondent to agree for divorce be mutual consent. A frivolous reply was sent to the notice and hurriedly the respondent had also filed a petition for restitution of conjugal rights in O.P.No.42 of 1985. The petitioner also filed a petition for judicial seperation in O.P.No.43 of 1985. Both the petitions were contested and trial together and dealt by a common judgment dated 28. 1987. While O.P.No.42 of 1985 filed by the respondent was decreed, the petition filed by the petitioner in O.P.No.43 of 1985 for judicial separation was dismissed. 3. While the matter stood thus, the respondent had filed a petition in M.C.No.1 of 1986 for maintenance for herself as well as for the child which was delivered on 12. 1984, and the said petition was allowed on joint endorsement. As per joint endorsement, the maintenance was paid regularly. 3. While the matter stood thus, the respondent had filed a petition in M.C.No.1 of 1986 for maintenance for herself as well as for the child which was delivered on 12. 1984, and the said petition was allowed on joint endorsement. As per joint endorsement, the maintenance was paid regularly. It was further stated that the decree in O.P.No.42 of 1985 was passed on 28. 1987 and it was nearly two years since the decree had been passed and there has been no restitution of conjugal rights between the petitioner and the respondent. It was more than five years since they had parted from each other and it had became highly impossible of the petitioner and the respondent to join together and to lead a happy married life. Hence, the petition. 4. In the counter, the allegations contained in the petition were denied. It was stated that it was only the petitioner, who was entertaining the idea that the marriage had completely failed and broken down and it was only a one sided thinking. The respondent further stated that she was still very young and having a child aged about five years and it was not possible for her life to be wrecked by the adament. attitude of the petitioner. The respondent, therefore, contended that the petitioner was not entitled to a decree. 5. Thelearned District Judge after considering the mutual submissions and the evidence held that the petitioner himself was responsible for both parties not living together and hence, he cannot take advantage of his own wrong, with the result, the petition was dismissed and hence, the present appeal, 6. The learned counsel for the appellant contends that the fact that the parties had not resumed their co-habitation even after passing of a decree for restitution of conjugal rights has not been disputed and therefore, the petitioner was entitled to a decree. Learned counsel also relies on a judgment of a Division Bench of this Court reported in B.K.Tara v. D.N.Kannan B.K.Tara v. D.N.Kannan B.K.Tara v. D.N.Kannan , (1992)2 L.W. 118 . In that case, the question arose as to whether the petition under Sec.13-A(A)(ii) of the Hindu Marriage Act can be rejected on the ground that the husband should not be allowed to take advantage of his own wrong and having regard to the provisions contained under Sec.23 of the said Act. In that case, the question arose as to whether the petition under Sec.13-A(A)(ii) of the Hindu Marriage Act can be rejected on the ground that the husband should not be allowed to take advantage of his own wrong and having regard to the provisions contained under Sec.23 of the said Act. The Division Bench considered as to whether the husbands refusal to resume cohabitation could be stated to be a wrong on his part within the meaning of the Sec.23 of the Act so as to deny the relief of divorce. On a consideration of the facts and also taking into account the decision of the Supreme Court reported in Smt.Saroj Rani v. Sudarshan Kumar Smt.Saroj Rani v. Sudarshan Kumar Smt.Saroj Rani v. Sudarshan Kumar , A.I.R. 1984 S.C. 1562 the Division Bench held that there was no evidence of any attempt on the part of the wife of prove any alleged mis-conduct on the part of the husband. The Division Bench had also taken note of the observation of the Supreme Court that the ‘wrong’ mentioned in Sec.23(i)(c has to be something more than a mere disinclination by the party to agree to an offer of re-union and that it should be a misconduct serious enough to justify denial of the relief to which the husband or the wife was otherwise entitled. 7. In the present case, the wife has not taken out any petition to execute the decree for restitution of conjugal rights. Even though she had taken steps to file a petition for maintenance, she had not taken any steps to execute the decree. Not even a single documentary evidence has been filed to show that there was any genuine attempt on the part of the wife to resume the cohabitation. Mere oral evidence is not sufficient to rebut the evidence given on the side of the husband. Therefore, I am unable to sustain the finding of the trial court to the effect that the husband was responsible for the non-presumption of the cohabitation. 8. A perusal of Sec.13(1)(A)(ii) show that if there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year for upwards after the passing of the decree for restitution of conjugal rights, that would be a ground for divorce. 9. 8. A perusal of Sec.13(1)(A)(ii) show that if there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year for upwards after the passing of the decree for restitution of conjugal rights, that would be a ground for divorce. 9. However, the learned counsel for the respondent submits that as opportunity may be given for adducing better evidence in the content of the dispute arising for consideration. 10. Therefore, only for the purpose of providing some opportunity to the respondent to adduce better evidence. I am inclined to remit the matter for reconsideration providing opportunities to both parties. The court also with due regard to the provisions under Sec.13(1)(A) shall pass an ultimate order after considering the evidence. 11. The lower court is directed to dispose of the appeal within two months from the date of receipt of a copy of this order. 12. In the result, the appeal is allowed subject to the above observation. No costs.