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2010 DIGILAW 2880 (PNJ)

Surjit Singh v. Surinder Kaur

2010-10-11

K.KANNAN

body2010
Judgment K.Kannan, J. 1. The appeal is filed by the husband challenging the decree for dismissal of his petition for divorce filed on three grounds; first- non resumption of cohabitation after a decree for restitution of conjugal rights, second - cruelty and third - desertion. 2. There has been marriage between the parties on 6.2.1983 and it appears that before long they separated, unable to reconcile themselves to a situation where each one had his/her own employment prospects as predominent in their minds. The wife, who was a Nurse, was not prepared to go and live with the husband since she was employed in another place from where the husband was residing. It appears that the husband filed an application for restitution of conjugal rights and obtained a decree on 20.12.1996. The wife had her own reasons for not joining the company of her husband and in a bid to substantiate the plea, she preferred an appeal in FAO No.44-M of 1997 before this Court. The appeal came to be dismissed in limine on 16.12.1997. 3. The husband filed petition for divorce attributing cruel conduct against the wife and stated that she was guilty of desertion. It was also sought to be urged at the time of trial that she had not resumed company with the husband even inspite of the decree for restitution of conjugal rights. The Tribunal rejected all the grounds and dismissed the petition filed by the husband. 4. The ground which was urged before the trial Court that the wife did not resume co-habitation with the husband, and therefore, he was entitled to a decree for divorce, must be seen through the requirement of law under Section 13 (1)(A) of the Hindu Marriage Act. The law requires under sub clause (ii) that there shall be no restitution for a period of one year or upwards after the passing of a decree for restitution. The decree had been passed on 20.12.1996 but the petition for divorce had been filed even before completion of one year. Therefore, the ground was not available to the husband, who urged that he was willing to take her and the wife was not prepared to join his company. Indeed, when there was an appeal against the decree also. The decree had been passed on 20.12.1996 but the petition for divorce had been filed even before completion of one year. Therefore, the ground was not available to the husband, who urged that he was willing to take her and the wife was not prepared to join his company. Indeed, when there was an appeal against the decree also. It shall not become possible for the husband to file a petition even within one year and taken the non-resumption as a ground for divorce. 5. On the issue of the entitlement to a decree on the ground of cruelty, learned counsel is unable to point out any specific instance of cruelty and he would merely contend that the oral versions of cruelty were not believed by the Tribunal. I have not been shown through any material of cruel conducts attributed to the wife to sustain the petition on that ground. 6. The other ground of divorce urged was desertion. The desertion that will be actionable to found a ground for divorce shall be a desertion for a continuous period of not less than two years immediately preceding the presentation of the petition. If within the intervening period of two years, after presentation of the petition, the husband himself had applied for restitution of conjugal rights and also secured a decree for restitution, then it cannot be stated that the statutory requirement is complied with. That shall be so, because by virtue of Section 23 of the Hindu Marriage Act, any act of the husband which has the effect of condoning the wifes conduct, will disentitle the person to obtain a decree for divorce. Section 23 (1)(b) reads as follows: "where the ground of the petition is the ground specified in clause (i) of sub section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty, the petitioner has not, in any manner, condoned the cruelty". The act of desertion to be a valid ground for a divorce must be such act not falling within the period when the petition for restitution of conjugal rights was pending. The period of desertion must fall outside the period when despite a decree for restitution there has been a desertion. The act of desertion to be a valid ground for a divorce must be such act not falling within the period when the petition for restitution of conjugal rights was pending. The period of desertion must fall outside the period when despite a decree for restitution there has been a desertion. The law itself recognizes through sub clause 1(A) of Section 13 that if there had been no resumption, the husband would be entitled to a divorce. In this case, I have already pointed out that the petition for divorce has been filed within the one year period of decree for desertion. 7 The periods which have been mentioned under the Act are in some way inflexible, for it may happen that the case is pending for a long number of years and during all the number of years there has been no resumption. The mental conduct together animus desiderandi must be a period before the petition and not during the pendency of the proceedings. I am aware of decisions that a conduct during the proceedings suggesting to a crucial attitude of one of the parties have been taken to be relevant. I cannot, however, accept a plea that the conduct to stay away from the company during the proceedings could ever offer such a valid ground for divorce. 8. Truely, the marriage has gone severe strain. What shall be available for Honble Supreme Court to do as irretrievable breakdown of marriage is still not a ground that parties could invoke or for a High Court or a sub-ordinate Court to apply to grant a decree of divorce. The law is, so stated in Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415. 9. I find no legal grounds to interfere with the decree passed by the Court below. 10. The appeal is, therefore, dismissed.