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2008 DIGILAW 1020 (MP)

RAKESH DHARAMDAS RAI v. LATA ALIAS SHAKUNTALA RAI

2008-08-13

U.C.MAHESHWARI

body2008
Judgment ( 1. ) THIS appeal is directed by the petitioner husband under Section 28 of the Hindu Marriage Act, 1955, in short "the Act", being aggrieved by the judgment and decree dated 11-3-05 passed by the District Judge, Tikamgarh in hindu Marriage Case No. 76-A/2003 whereby his petition filed against respondent-wife under Sections 13 (1) (ia) and 13 (1a) (ii) of the Act for decree of divorce on the grounds of cruelty and of non-compliance the decree for restitution of conjugal rights has been allowed for judicial separation under section 10 of the Act, contrary to the prayer made in the petition. ( 2. ) THE facts giving rise to this appeal in short are that the appellant herein filed the aforesaid petition contending that on 18-6-1998 he got married with the respondent in accordance with rites and rituals of the Hindu community. Then the appellant was educated unemployed person while the respondent being Shiksha Karmi in education department was earning rs. 3200/- per month. Initially she resided with the appellant in matrimonial home for 4-5 days and left the same without any sufficient cause for her parental home, Damoh. Thereafter she used to visit the matrimonial home only 5 to 6 days at the interval of 6-7 months and lastly she visited and left the matrimonial home alongwith her ornaments and articles on 30-5-2000 saying that she will come back very soon. But she did not turn up, on which he wrote her various letters calling her back and also visited her parental home to bring her back but she did not come. As per further averments while residing in the matrimonial home the respondent deprived the appellant from the enjoyment of marital life and during that period her behaviour was also cruel with the appellant and family members. Apart this she deprived the appellant to enjoy the marital relations. On the contrary she was used to reside freely with her maternal uncle in some relations. She also threatened the appellant to kill him and his family members or involving them by fabricating some false criminal cases. In addition, it is pleaded that earlier he filed a petition under Section 9 of the Act. The same was allowed and decree for restitution of conjugal rights was passed against the respondent on 12-7-2000 by II Additional District Judge, Tikamgarh in Civil original Suit No. 45-A/2000. In addition, it is pleaded that earlier he filed a petition under Section 9 of the Act. The same was allowed and decree for restitution of conjugal rights was passed against the respondent on 12-7-2000 by II Additional District Judge, Tikamgarh in Civil original Suit No. 45-A/2000. In spite such decree the respondent did not turn to the matrimonial home to perform the marital duties, thereby she committed cruelty with the appellant. In such premises, the prayer for dissolution of the marriage is prayed. ( 3. ) IN the written statements of the respondent by admitting the factum of marriage, it is stated that subsequent to marriage she was ousted from the matrimonial home by the appellant saying that she should not come again. Thus, under compulsion she is residing with her parents but still she is ready and willing to go and reside with the appellant to perform the martial duties. While residing in the matrimonial home she was always subjected to harassment and cruelty with beatings by the appellant and his parents. In such premises, the prayer for dismissal of the petition is made. ( 4. ) IN view of the pleadings of the parties as many as five issues were framed by the Trial Court on which the evidence was recorded. On appreciation of the same by refusing the prayer of divorce the petition of the appellant was decreed under Section 10 of the Act for judicial separation on which the appellant has come forward to this Court with the prayer for setting aside the decree of judicial separation and to accept his petition for dissolution of the marriage by allowing the appeal. ( 5. ) SHRI R. K. Samaiya, learned Counsel for the appellant without assailing the findings of the impugned judgment holding that the behaviour of the respondent with the appellant was neither cruel nor she deprived him from the enjoyment of the marital relationship or she was used to reside freely with her some maternal uncle in relation, argued this appeal only on the ground that after passing the decree for restitution of conjugal rights by the Competent court, when the respondent did not turn to reside with the appellant for more than the prescribed period under Section 13 (1a) of the Act, then the Trial court was bound to pass the decree for dissolution of the marriage only on such sole ground. Although the issue No. 3 framed in this regard was concluded by the trial Court in favour of the appellant in spite it the decree for dissolution of the marriage, has not been passed and contrary to the case of both the parties the decree of judicial separation was passed under wrong premises. According to his submission there was no occasion to pass such decree of judicial separation after giving the affirmative finding on issue No. 3 in favour of the appellant. In such premises, he prayed for passing the decree of divorce by setting aside the impugned decree of judicial separation by allowing this appeal. ( 6. ) ON the other hand Shri J. A. Shah, learned Counsel for the respondent while responding the aforesaid arguments said that the impugned judgment and decree is based on proper appreciation of the evidence and is also in conformity with law. It does not require any interference at this stage. He further said that even after obtaining the decree for restitution of the conjugal rights against the respondent the appellant did not make any efforts to bring her back with him in the matrimonial home, in such premises by giving the decree of divorce, the appellant could not be benefited by the Trial Court for his own wrong. He said that on the date fixed for reconciliation proceedings the appellant refused to keep the respondent with him. However, he fairly conceded that instead the repeated directions of the Court the respondent never appeared to assist the Court for holding the reconciliation proceedings. With these submissions he prayed for dismissal of this appeal. ( 7. ) HAVING heard the learned Counsel after examining the record and perusing the impugned judgment and decree, I am of the considered view that the Trial Court has committed grave error in passing the decree for judicial separation under Section 10 of the Act while in the available circumstances and in view of finding of issue No. 3 the Trial Court ought to have passed the decree of divorce under Section 13 (1a) (ii) of the Act. ( 8. ) THE Trial Court has framed the issue No. 3 in the following manner and concluded the same as mentioned in front of it:- ( 9. ( 8. ) THE Trial Court has framed the issue No. 3 in the following manner and concluded the same as mentioned in front of it:- ( 9. ) IT is apparent on record that aforesaid finding of issue No. 3 given by the Trial Court has not been assailed on behalf of the respondent in any manner either by filing the cross-objection, separate appeal or by any other proceedings. Even in the course of arguments on merits of this appeal the same has not been assailed by the respondents Counsel. On the contrary, the appellants Counsel placed his reliance on it. In such premises, I have not found any circumstance to discard or set aside such finding of the Trial Court as such the same has become final between the parties. ( 10. ) ACCORDING to the record the appellant filed the petition under section 13 of the Act for giving the decree of divorce against the respondent on the grounds of cruelty committed by her refusing to perform the intercourse with the appellant and by residing freely with her maternal uncle in relation and also of non-compliance the aforesaid decree for restitution of conjugal rights, passed by the Competent Court on dated 12-7-2000. It is apparent from the pleadings of the parties that neither of the parties has prayed for judicial separation under Section 10 of the Act. Thus, the Trial Court was bound to decide the case only within the fore corners of case pleaded by the parties and the prayers made by him and not beyond that. In such premises the Trial Court did not have any occasion to pass the decree under Section 10 of the Act for judicial separation. In such premises, the impugned decree for judicial separation is not sustainable and same is hereby set aside. ( 11. ) AS per findings of the Trial Court all other issues except the aforesaid issue No. 3 have been decided against the appellant and findings of such issues have not been challenged by the appellants Counsel in his arguments. He preferred the appeal only to pass the decree of divorce under section 13 (1a) (ii) of the Act, in view of unchallenged finding of aforesaid issue no. 3 holding that parties are residing separately for more than one year even after passing the decree for restitution of conjugal rights. ( 12. He preferred the appeal only to pass the decree of divorce under section 13 (1a) (ii) of the Act, in view of unchallenged finding of aforesaid issue no. 3 holding that parties are residing separately for more than one year even after passing the decree for restitution of conjugal rights. ( 12. ) IN view of the aforesaid before giving any finding, I deem fit to examine the case in view of the provision of Section 13 (1 A) (ii) of the Act. The same is read as under:- 113. Divorce.- (1a) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground:- (ii) That there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. ( 13. ) IN view of the aforesaid provision on examining the case at hand, it is apparent that at the instance of the appellant the decree for restitution of conjugal rights was passed on dated 12-7-02. Subsequent to such decree no resumption of cohabitation took place between the parties and the instant petition under Section 13 of the Act was preferred on 24-11-03, i. e. , undisputed after more than one year from the date of passing the aforesaid decree for restitution of conjugal rights. In such premises, in view of the aforesaid provision irrespective of the circumstance that no execution of such decree was filed by the appellant, in the absence of any evidence showing that respondent made any effort to comply such decree there was no option with the Trial Court except to pass the decree of divorce. In such premises, the impugned decree is not sustainable. ( 14. ) IT appears from the impugned judgment that the Trial Court has while deciding the case have taken into consideration the following case laws:- (1) Balbhadra Pradhan Vs. Sundari Mani Devi, AIR 1995 Orissa 180, (2) Radha Kumari Vs. Dr. K. M. K. Nayar, AIR 1988 Kerala 235, (3) Smt. Santosh Singh Vs. Mohan Lal, AIR 1980 Punjab and haryana, Page 325, (Mr. U. C. Maheshwari, J.) (4) Smt. Shakuntala Tandon Vs. Sundari Mani Devi, AIR 1995 Orissa 180, (2) Radha Kumari Vs. Dr. K. M. K. Nayar, AIR 1988 Kerala 235, (3) Smt. Santosh Singh Vs. Mohan Lal, AIR 1980 Punjab and haryana, Page 325, (Mr. U. C. Maheshwari, J.) (4) Smt. Shakuntala Tandon Vs. Sardarilal Tandon, AIR 1972 punjab and Haryana 29, (5) Mrs. Kailash Kumar Vs. Kartarchand Diwakar, AIR 1962 Punjab 156. ( 15. ) IN view of the law laid down in the aforesaid cases the Trial Court ought to have passed the decree of divorce. But by deviating such principles the trial Court has committed grave error and perversity in passing the decree for judicial separation. ( 16. ) IN the absence of any cross-objection or separate proceedings on behalf of the respondent against the finding of the Trial Court on issue No. 3 based on appreciation of the evidence and document do not require any interference at this stage. Hence, this judgment is being passed without discussing the evidence in elaborate manner only taking into consideration the aforesaid existing provision of Section 13 of the Act and the unrebutted finding of the Trial Court. ( 17. ) APART the above, I have also gone through the pleadings of the parties, I have not found any facts in them showing that the case of the judicial separation was pleaded by either of the parties. When it was not a case of either of the parties before the Trial Court then in the absence of any positive prayer and pleadings in that regard the Trial Court did not have any occasion to deviate from the pleadings and the available evidence for passing the decree of judicial separation instead to pass the decree of divorce. It is apparent that the learned trial Court even after mentioning the aforesaid settled legal position for one reason or another, best known to such Court contrary to such legal position has passed the impugned decree for judicial separation. The same is not sustainable and deserves to be set aside. ( 18. ) UNDER the aforesaid premises, this appeal is allowed and by setting aside the impugned judgment and decree the petition of the appellant is allowed for dissolution of the marriage under Section 13 (1 A) (ii) of the Act and in such premises the decree of divorce is ordered between the parties. ( 18. ) UNDER the aforesaid premises, this appeal is allowed and by setting aside the impugned judgment and decree the petition of the appellant is allowed for dissolution of the marriage under Section 13 (1 A) (ii) of the Act and in such premises the decree of divorce is ordered between the parties. Till this extend the finding of the Trial Court is modified while the findings given, by the Trial court on other issues are hereby affirmed as the same are not challenged on behalf of the appellant. Accordingly this appeal is allowed. In the facts and circumstances of the case there shall be no order as to the cost. The decree be drawn up accordingly.