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Madhya Pradesh High Court · body

2003 DIGILAW 1211 (MP)

Amarsingh v. Kiranbai

2003-11-06

A.K.AWASTHY

body2003
Judgment ( 1. ) APPELLANT/petitioner has filed this appeal under Section 28 of the Hindu Marriage Act against the judgment and decree dated 30. 4. 1996 in Hindu Marriage Case No. 142/95 passed by IXth Additional District Judge. Indore dismissing the petition filed for divorce under Section 13 (i) (ia) (ii) of the Hindu Marriage Act. ( 2. ) ADMITTED facts of the case are that marriage in between the appellant and the respondent was performed on 18. 5. 1975 according to the Hindu rites and customs at Indore and they have a son Pratapsingh, who is living with the respondent/wife. It is also not in dispute that the appellant had filed a petition (No. 17/89) for divorce on the ground of adultry and it was dismissed in default of appearance of the appellant. Thereafter, the respondent has filed an application for restitution of conjugal rights and in that petition the appellant has prayed for divorce from the respondent. That the learned Trial Court has dismissed the petition for restitution of conjugal rights and the prayer of divorce was allowed. It is also not in dispute that Appeal (No. 45/87) was filed before the High Court of M. P. at Indore and the High Court has set aside the decree of divorce and the petition filed by the respondent for restitution of conjugal rights was allowed vide judgment dated 25. 10,1993. It is also common ground that after passing of the decree on 25. 10. 1993 there was no restitution of conjugal rights between appellant and the respondent; that the appellant sent a registered notice dated 22. 3. 1995 to the respondent for the divorce on the ground that the restitution of conjugal rights has not taken place even after one year of the passing of the decree to that effect, This fact is also not in dispute that the appellant and the respondent ar living separately from 25. 4. 1980. ( 3. ) THE case of the appellant/petitioner is that there was no restitution of conjugal rights for more than one year in spite of passing of the decree to that effect on 25. 10. 4. 1980. ( 3. ) THE case of the appellant/petitioner is that there was no restitution of conjugal rights for more than one year in spite of passing of the decree to that effect on 25. 10. 1993; that the respondent is living separately from the appellant from more than 16 years and the marriage in between the appellant and the defendant has become dead and irretrievable and as such the marriage be dissolved by a decree of divorce under Section 13 (1) (1a) (ii) of the Hindu Marriage Act. ( 4. ) THE case of the respondent wife is that after passing of the decree dated 25. 10. 1993 the appellant has never made any attempt to resume the matrimonial relationship, in spite of repeated efforts by the respondent wife to live with him. The respondent has denied that the marriage in between the appellant and the respondent has become dead. It is pleaded by the respondent that the appellant is guilty of disobeying the decree of restitution of conjugal rights and as such he is not entitled for divorce under Section 13 (1) (1a) (ii) of the Hindu Marriage Act. The learned Trial Court after framing the issues, has examined petitioner Amarsingh (P. W. 1) and from the opposite side respondent Smt. Kiran (D. W. 1) and her witness Anil Kumar (D. W. 2) were examined. The learned Trial Court held that the appellant was not willing to keep the respondent while the respondent was ready to live with him and as such by virtue of Section 23 (1) (a) of the Hindu Marriage Act the appellant is not entitled for the relief of divorce from the respondent. ( 5. ) THE learned Counsel for the appellant has assailed the impugned judgment and decree on the ground that the respondent was not willing to live with the appellant after passing of the decree for restitution of conjugal rights. However, as the respondent has not lived with the appellant after passing of the decree of restitution of conjugal rights for more than one year the marriage deserves to be dissolved under Section 13 (1) (1a) (ii) of the Hindu Marriage Act. However, as the respondent has not lived with the appellant after passing of the decree of restitution of conjugal rights for more than one year the marriage deserves to be dissolved under Section 13 (1) (1a) (ii) of the Hindu Marriage Act. The learned Counsel for the appellant has relied on the citations (i) Smt. Bimla Devi v. Bakhwar Singh, AIR 1977 Punjab and Haryana 167, and (ii) Smt. Gajna Devi v. Purshotam Giri, 13 (1997) DLT 77=air 1977 Delhi 178, wherein it is held that Section 13 (1a) of the Hindu Marriage Act, 1976 does not apply in a case where there is no restitution of conjugal rights between the parties after passing the decree. Petitioner Amarsingh (P. W. 1) has stated that his wife has not lived with him after passing of the decree for the restitution of conjugal rights and as he does not want to live with his wife the marriage be dissolved. Amarsingh (P. W. 1) has admitted in para 5 of his cross-examination that after passing of the decree for restitution of conjugal rights he has not gone to the house of his wife to bring he back to matrimonial house and no attempt was made by him to resume the matrimonial relationship. Consequently, the finding of the learned Trial Court that the appellant/petitioner has not made any attempt to resume the relationship with his wife after passing the decree of restitution of conjugal rights is just and proper. ( 6. ) SMT. Kiran (D. W. 1) has stated that she is willing to live with her husband and her mother, sister, brother and others have persuaded the appellant to keep her in the matrimonial house, but her husband has not turned to take her to the matrimonial house. The respondent has not made any application under Order 21 and Rule 32, C. P. C. for restitution of conjugal rights. Smt. Kiran (D. W. 1) has not given any notice to the appellant that the appellant should keep her and that she is willing and ready to live with her husband. Anil Kumar (D. W. 2) has stated that after the decision of the High Court he has asked the appellant to keep his wife, but the appellant has not agreed. Anil Kumar (D. W. 2) has stated that after the decision of the High Court he has asked the appellant to keep his wife, but the appellant has not agreed. Anil Kumar (D. W. 2) is brother of Kiran (D. W. 1), but he has not give the specific year or the month when he has approached the appellant to keep his sister with him. Anil Kumar (D. W. 2) has admitted in para 2 of his cross-examination that he does not know when the decision of the High Court was passed for restitution of conjugal rights. From the cross-examination of Anil Kumar (D. W. 2) it is clear that his mother, wife and sister have told him that the appellant is not ready to keep the respondent as his wife. The respondent has not examined her mother, sister or other relatives who are alleged to have gone to the house of the appellant to persuade him to keep the respondent with him. ( 7. ) CONSEQUENTLY, it is clear that the respondent has also not made any effort to see that the matrimonial relationship between her and the appellant resumes, The respondent has not given any explanation as to why the execution of the restitution of conjugal rights under Order 21 Rule 32, C. P. C. was not filed by her against the appellant or why she has not given any notice to the appellant for resumption of the relationship. From the above discussions it is clear that after passing of the decree of restitution of conjugal rights by the High Court neither the appellant nor the respondent has made effort to resume the relationship. ( 8. ) THE appellant and the respondent are living separately from 1980 and as such more than 23 years have passed of their living separately. The appellant and the respondent have not resumed the matrimonial relationship from more than one year even after passing of the decree for restitution of conjugal rights. The learned Trial Court has observed that the appellant is guilty of not complying with the decree of restitution of conjugal rights as he has not made any attempt to keep his wife in the matrimonial house and as such under Section 23 of the Hindu Marriage Act the appellant cannot get the relief of dissolution of marriage. The learned Trial Court has observed that the appellant is guilty of not complying with the decree of restitution of conjugal rights as he has not made any attempt to keep his wife in the matrimonial house and as such under Section 23 of the Hindu Marriage Act the appellant cannot get the relief of dissolution of marriage. The learned Trial Court has erred in holding that the respondent had made an attempt to resume the relationship with her husband after passing of the decree of restitution of conjugal rights. The respondent has also not made any attempt to resume the relationship within one year after passing of the decree of restitution of conjugal rights and as such she is equally responsible for the non-compliance of the decree of restitution of conjugal rights. On account of the appellant and the respondent living separately for more than 23 years, the marriage between them has become virtually dead and irretrievable. It is observed by the Supreme Court in case of Romesh Chandra v. Smt. Savitri, I (1995) DMC 231 (SC)=1995 (1) MPWN 140, that if there is no chance of marriage being retrieved and the marriage has become dead then to prolong the marital alliance is nothing, but prolonging the agony and affliction. In the circumstances where both the appellant and the respondent are responsible for the non-compliance of the decree of restitution of conjugal rights, it will not be proper to deprive the appellant from relief of dissolution of marriage under Section 13 (1) (1a) (ii) of the Hindu Marriage Act on account of the provisions of Section 23 of the Hindu Marriage Act. ( 9. ) THE respondent has filed an application under Section 41 Rule 27 of the C. P. C. for taking the documents on record to. the effect that after some years of passing of decree of restitution of conjugal rights the respondent has lived for 6 months with the appellant. This fact is relevant whether after one year of the passing of decree of restitution of conjugal rights the spouse lived together because after living separately for more than one year the spouse get the right to get the marriage dissolved under Section 13 (1) (1a.) (ii) of the Hindu Marriage Act. Consequently the application is hereby rejected. ( 10. ) THE respondent is getting an amount of Rs. Consequently the application is hereby rejected. ( 10. ) THE respondent is getting an amount of Rs. 2,500/- p. m. from the appellant under Section 24 of the Hindu Marriage Act as interim maintenance. Learned Counsel for the appellant has agreed that the amount of permanent alimony may be enhanced. The order in favour of the respondent for interim maintenance of Rs. 2,500/- p. m. was passed about 7 year back and since the passing of the order of maintenance of Rs. 2,500/- prices have gone up and the expenses of the son of the appellant, who is living with the respondent has also gone up the value of money has come down. Consequently, in my opinion the respondent is entitled for an amount of Rs. 3,500/- p. m. as permanent alimony from the appellant. ( 11. ) IN the result, the appeal is allowed and the judgment and decree passed by the learned Trial Court is hereby set aside. The marriage between the appellant and the respondent is dissolved by the decree of divorce under Section 13 (1) (1 A) (ii) of the Hindu Marriage Act. The appellant is directed to pay the permanent alimony @ Rs. 3,500/- p. m. to the respondent from the date of passing of this order. A decree be drawn up accordingly.