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2003 DIGILAW 540 (MP)

Laxmi Kant Chaturvedi v. Vidya Devi

2003-04-14

A.K.AWASTHY

body2003
Judgment ( 1. ) THIS appeal is filed Under Section 28 of the Hindu Marriage Act challenging the judgment and decree dated 15. 1. 1992 in Civil Suit No. 13-A of 1990 passed by the IVth Additional District Judge, Jabalpur wherein petition Under Section 13 (l-A) (i) of the Hindu Marriage Act, filed by appellant/husband was dismissed. ( 2. ) THE admitted facts of the case are that the appellant and respondent were got married about 20 years back at Umaria as per Hindu rites and customs. Ku. Pushpalata was daughter from their wedlock. It is also not in dispute that the appellant-husband is paying Rs. 175/- per month as maintenance. That the Civil Suit No. 46-A of 1985 for judicial separation was filed by the respondent-wife and the decree was passed on 25. 6. 1986 in favour of respondent-wife for the judicial separation from the appellant-husband. ( 3. ) THE case of the appellant was that from last more than 7 years respondent-wife is living separately and 3 years have passed since the decree for judicial separation. That the appellant made an attempt to bring back his wife but she has refused to live with the appellant. The appellant has prayed that the decree of dissolution of marriage be passed. ( 4. ) THE respondent-wife has averred in written statement filed before the Trial Court that her husband is living with one Uma Sahu who is nurse in the Government Hospital, Maihar. That the order of judicial separation was passed in her favour on the ground that appellant-husband is having illicit relation with Uma Sahu. The respondent has denied that the appellant was ready or made an attempt to keep her in his house. ( 5. ) THE learned Trial Court has examined the appellant and respondent and it was concluded that the appellant was found guilty of having the illicit relation with Uma Sahu and as such the appellant is not entitled for the dissolution of the marriage on the ground that the respondent-wife has refused to live with him and that she is living separately for more than seven years. ( 6. ) RESPONDENT proceeded ex parte. ( 7. ) IT is clear from the judgment dated 25. 6. ( 6. ) RESPONDENT proceeded ex parte. ( 7. ) IT is clear from the judgment dated 25. 6. 1986 passed by IVth Additional District Judge, Jabalpur in Civil Suit No. 46-A of 1985 that the petition of respondent-wife filed Under Section 10 of the Hindu Marriage Act was allowed on the ground that the appellant-husband is living with Uma Sahu and his relations with Uma Sahu are illicit. From the perusal of Section 13 (l-A) (i) of the Hindu Marriage Act, it is clear that the decree for divorce is maintainable in case of non-resumption of cohabitation between the parties for a period of one year after passing of a decree for restitution of conjugal rights. The provision of Section 13 (l-A) (i) of the Act for divorce could not be invoked by the appellant because there was decree of judicial separation against the appellant. ( 8. ) THE appellant has not examined any witness to show that he has gone to bring back his wife to resume the relationship of the marriage. From the pleadings and the statements of the appellant, it is not clear that in which month or year, he had gone to fetch his wife. It is provided in Sub-section (2) of Section 10 of the Act that the Court may on the application by either party, rescind the decree of judicial separation. The appellant-husband did not file the petition for rescinding the decree of judicial separation before filing the petition for divorce Under Section 13 (l-A){i) of the Hindu Marriage Act even after four years of decree of judicial separation passed against him on 25. 6. 1986. Consequently, learned Trial Court has rightly held that the statement of the appellant-husband that he went to the respondent-wife to bring her back to his house is false. Learned Trial Court has rightly relied on the following observations made in case of Bai Mani v. Jayantilal, AIR 1979 Gujarat 209, to reject the petition of appellant: "there must be some facts or circumstances occurring after the decree for judicial separation, which, if amounting to substantial wrong that in granting a decree for divorce to a defaulting party or a wrongdoer, would amount in the circumstances in giving advantage of his own wrong. " ( 9. ) CONSEQUENTLY, the appeal has no force and it is hereby, dismissed.