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2013 DIGILAW 217 (CHH)

NANHI BABU v. PREMLATA

2013-07-25

R.N.Chandrakar, Sunil Kumar Sinha

body2013
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment and decree dated 5-9-2012 passed in Civil Suit No. 12-A/2011 by the Judge, Family Court, Raigarh (CG). By the impugned judgment and decree, a petition filed by the husband under Section 13 of the Hindu Marriage Act, 1955 (for short, "the Act, 1955") for dissolution of the marriage by passing a decree of divorce has been dismissed by the said court. 2. The appellant/petitioner (husband) filed a petition under Section 13 of the Act, 1955 for dissolution of the marriage with respondent (wife) by passing a decree of divorce. The petitioner took the ground of cruelty and adultery. In addition to this, he also took a ground that after passing of a decree for restitution of conjugal rights on 15-9-2009, there has been no restitution of conjugal rights between them for a period of more than one year. 3. The respondent filed her reply and denied the allegations made by the petitioner. She completely denied the allegations relating to cruelty and adultery. So far as non-restitution of conjugal rights is concerned, it was contended that as per earlier compromise decree, the petitioner had to come to her place for taking her, however, the petitioner came on the day when the daughter of son of her sister had died, therefore, she had said that she will not go on that day. Thus, it was not a denial. 4. The learned Judge, Family Court held that so far as grounds relating to cruelty and adultery are concerned, earlier Civil Suit No. 39-A/2008 was also filed by the petitioner on these grounds and in the said civil suit a compromise took place between the parties on 6-9-2009 before the Lok Adalat and instead of passing a decree of divorce on the said grounds, an award for restitution of conjugal rights was passed on compromise on the following terms:- ^^vkosnd fnukad 15@09@2009 dks vukosfndk dks ysus ds fy, mlds fuokl LFkku ij vkdj mls llEeku vius lkFk j[kus ds fy, vkosxkA mHk; i{k ,d lkFk jguk r; djds izdj.k lekIr djk jgsa gSa^^ (See Ex.P/5) 5. Therefore, by necessary implication, after passing of the said award, the above grounds which were taken in the earlier civil suit would stand condoned. 6. Therefore, by necessary implication, after passing of the said award, the above grounds which were taken in the earlier civil suit would stand condoned. 6. Thus, the learned Judge, Family Court, had only framed an issue on the ground taken under Section 13 (1-A) (ii) of the Act, 1955. 7. The parties were allowed to lead their evidence. 8. The Family Court recorded a finding that the petitioner did not properly comply the terms of the award and the efforts made by the petitioner for cohabitation with the respondent was not bona fide. Therefore, even after passing of the statutory period after the aforesaid award for restitution of conjugal rights, the petitioner was not entitled to a decree of divorce under Section 13 (1-A) (ii) of the Act, 1955. The petition filed by the petitioner, therefore, was dismissed. Hence, this appeal. 9. Mr. T.R. Dahire, learned counsel appearing on behalf of the appellant/petitioner has argued that the findings in relations to the efforts made by the petitioner are not proper; the petitioner had made sincere efforts for bringing the respondent from her house, but the respondent denied to come with the petitioner; therefore, the impugned decree deserves to be set aside and a decree of divorce under Section 13 (1-A) (ii) of the Act, 1955 should be passed in favour of the petitioner. 10. On the other hand, Mr. Vinod Tekam, learned counsel appearing on behalf of the respondent has opposed these arguments and supported the judgment and decree passed by the family court. 11. We have heard counsel for the parties. 12. It is not disputed that the marriage between the parties was solemnized in the year 1989 and the respondent is residing in Panjari Plant, Raigarh. It is also not disputed that children of the appellant namely Nageswar (son - 17 years) and Reena (daughter - 11 years) are also residing with the respondent in Panjari Plant, Raigarh. It is also not disputed that earlier to the present civil suit, the petitioner had filed an other petition under Section 13 of the Act, 1955 for grant of a decree of divorce on the ground of cruelty, which was registered as Civil Suit No. 39-A/2008 and in the said matter, the aforesaid award was passed by the Lok Adalat on a compromise entered into between the parties. 13. 13. On perusal of the record, it appears that when the petitioner was transferred to Sarangarh, he had requested the respondent to come to his house at Sarangarh, but the respondent (wife) straight-way denied to go to Sarangarh and then the proceedings were filed on various allegations and the aforesaid compromise decree was passed. The petitioner (AW-1) has admitted in para 21 of his cross-examination that the respondent was residing in his (petitioner's) house in Panjari Plant, Raigarh. However, he added that one Kalicharan was also residing there. He deposed that on 15-9-2009 he had gone to Panjari Plant, Raigarh to bring the respondent (wife) to his house at Sarangarh, but she denied to come with him. The respondent - wife (NAW-1) has contended that on 15-9-2009 the daughter of son of her sister had died, therefore, she had refused to go on the said date, but it was not an absolute refusal. 14. Ramanuj Kashyakar (AW-2), examined by the petitioner, has also admitted this fact in para 15 of his cross-examination that the respondent had said that the dead body of the daughter of Sunil is lying in the house, therefore, she will come latter. He further admitted that after saying like this by the respondent, they had returned back to Sarangarh. 15. Thus, according to the petitioner (AW-1) and Ramanuj Kashyakar (AW-2), they had gone to Panjari Plant, Raigarh, along with many other persons to bring the respondent as per award passed by the Lok Adalat and when they reached there, the respondent denied to come with them on the above account, and she said that she will come latter. This shows that the respondent had not denied to come back to the house of the petitioner at Sarangarh, but she simply made excuse for the said date only i.e., 15-9-2009. 16. It is not the case of the petitioner and it also does not come on record that thereafter also the petitioner had made efforts to bring the respondent to his house at Sarangarh. This is not a case in which the respondent (wife) was residing separately or she was residing at her in-laws place. In the instant case, the wife was residing in the house of the husband which was situated in Panjari Plant, Raigarh and the husband was inclined to take her to Sarangarh, where he was serving. 17. This is not a case in which the respondent (wife) was residing separately or she was residing at her in-laws place. In the instant case, the wife was residing in the house of the husband which was situated in Panjari Plant, Raigarh and the husband was inclined to take her to Sarangarh, where he was serving. 17. Section 13 (1-A) of the Act, 1955 only enables the party to a marriage to file an application for dissolution of the marriage on any of the grounds stated therein. No doubt, in case where there has been no restitution of conjugal rights 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 would give a right to the concerned parties to file a petition for divorce, but it does not mean that simply on account of filing of such a petition, the court must grant a decree of divorce in mechanical manner. The court conducting a trial of the suit in such matters, has to satisfy itself on various aspects contained in Section 23 of the Act and then only a decree of divorce has to be passed. 18. The very purpose of passing a decree for restitution of conjugal rights is that the petitioner (husband or wife) desiring the company of the other party may get the company and may be able to lead conjugal life. In no case, the above provision can be used by a party to simply make it a ground to get a decree of divorce under Section 13(1-A) (ii) of the Act, 1955. In a given case, when it appears that the petitioner is simply taking technical advantage of the decree for restitution of conjugal rights for getting a decree of divorce, the concerned court after recording such finding, may refuse to pass such decree under Section 13 (1-A) (ii) of the Act, 1955. The provision of restitution of conjugal rights provided under Section 9 of the Act, 1955 is a socially oriented remedy for preserving the marriage and not for technically dissolving it. 19. The provision of restitution of conjugal rights provided under Section 9 of the Act, 1955 is a socially oriented remedy for preserving the marriage and not for technically dissolving it. 19. In the instant case, the learned Judge, Family Court has recorded a finding that the petitioner did not make sincere efforts to bring the respondent to his house as per the award passed in the Lok Adalat on 15-9-2009. He formally visited his (petitioner's) house at Panjari Plant, Raigarh, where the respondent (wife) was residing, who simply denied to go on the said date on account of death of a child in her sister's family, who was also residing in the same place. The learned Judge, Family Court, has held that the above visit of the petitioner (husband) was for an extraneous and different purpose and the petitioner had failed to satisfy the court of his sincerity in wanting to resume cohabitation with his wife, therefore, the petition for divorce was dismissed. 20. On due consideration of the entire material available on record, we do not find any infirmity or illegality in the impugned judgment and decree passed by the Family Court, which has taken a right view, in the facts and circumstances of the case and has rightly refused to grant a decree of divorce under Section 13(1-A) (ii) of the Act, 1955. 21. The appeal has no merit. It is liable to be dismissed and is hereby dismissed. 22. Considering the facts and circumstances of the case, the cost is made easy. 23. A decree be drawn accordingly. Appeal Dismissed.