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2013 DIGILAW 2240 (RAJ)

Munni Devi v. Parma Ram

2013-12-11

ATUL KUMAR JAIN

body2013
JUDGMENT 1. - These four appeals are somewhat inter-connected, so hereby they are being disposed of by a common order for the sake of clarity and convenience. 2. In S.B. Civil Misc. Appeal No. 5331/2011, appellant Smt. Munni Devi has challenged the order dated 11.10.2011 passed by Addl. District Judge, Parbatsar, District Nagaur against the appellant under section 9 of the Hindu Marriage Act, 1955 (for short the Act of 1955 hereinafter) in Civil Misc. Case No. 42/2010 whereby decree for restitution of conjugal right has been passed in favour of her husband Parma Ram. 3. In S.B. Civil Misc. Appeal No. 5332/2011, appellant Smt. Maina Devi, who is sister of Munni Devi has challenged the order dated 11.10.2011 passed by Addl. District Judge, Parbatsar in Civil Misc. Case No. 24/2010 against hereunder section 13 of the Act of 1955 whereby her petition for divorce was dismissed against her husband Dharma Ram. 4. In S.B. Civil Misc. Appeal No. 5333/2011, appellant Smt. Maina Devi, has challenged the order dated 11.10.2011 passed by Addl. District Judge, Parbatsar in Civil Misc. Case No. 43/2010 against the appellant under section 9 of the Act of 1955 whereby decree for restitution of conjugal right has been passed in favour of her husband Dharma Ram. 5. In S.B. Civil Misc. Appeal No. 5334/2011, appellant Smt. Munni Devi, has challenged the order dated 11.10.2011 passed by Addl. District Judge, Parbatsar in Civil Misc. Case No. 23/2010 against her under section 13 of the Act of 1955 whereby her petition for divorce was dismissed against her husband Parma Ram. 6. The admitted position in all these four appeals is like this : (1) Decrees for restitution of conjugal rights were passed by the Court below on 11.10.2011 in favour of two brothers who are husbands of two sisters respectively. 6. The admitted position in all these four appeals is like this : (1) Decrees for restitution of conjugal rights were passed by the Court below on 11.10.2011 in favour of two brothers who are husbands of two sisters respectively. (2) It is also not in dispute that there has been no resumption of cohabitation as the parties to the marriage for a period of one year or more after the passing of the two decrees for restitution of conjugal rights in these matters and so, section 13 (1-A) (ii) of the Act of 1955 comes into picture which says that "either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by decree of divorce on the ground 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 decree for restitution of conjugal rights." (3) Hon'ble the Madras High Court in M.P. Nalini v. R. Karthikeyan, 2013 (116) AIC 544 has held that if both the parties to the marriage fail to take any step to resume marital life then either of the parties may move the Court for divorce on this ground. This means that not only the party who had obtained the decree for restitution of conjugal rights but the other party also can file the petition for divorce under section 23 (1) (a) (ii) of the Act of 1955. (4) No doubt, both wives have challenged the decree of restitution of conjugal rights which had been passed against them, but it is also not disputed that both the sisters want divorce from her husbands, though the husbands are adamant not to leave their wives. (5) It is also not in dispute that the Court below has dismissed both the divorce petitions filed by both the sisters and both the sisters have challenged that order also in these appeals before us. (6) For a moment, if appeals against both the decrees under section 9 of the Act of 1955 are dismissed, then certainly both wives will get an additional ground of divorce by help of section 23 (1) (a) (ii) of the Act of 1955. (6) For a moment, if appeals against both the decrees under section 9 of the Act of 1955 are dismissed, then certainly both wives will get an additional ground of divorce by help of section 23 (1) (a) (ii) of the Act of 1955. Both wives are inclined to get divorce from their husband at any condition and so they have prayed that by virtue of section 23 (1) (a) (ii) of the Act of 1955, they may be given decree of divorce in their favour, though their appeals against the decree of restitution of conjugal rights may be dismissed as not pressed. (7) It is also admitted position in these cases that the petition for divorce was filed by two wives in the Lower Court before expiry of one year's period from the date of decree of restitution of conjugal rights which was passed in their favour latter on but this Court is to supposed to allow technicalities in the way of justice. It has been prayed on behalf of the husbands that the wives may be directed to file a fresh petition for divorce in the Lower Court on the ground mentioned in section 13 (1 -A) (ii) of the Act of 1955, but I do not think that the two wives should be asked to take such a tedious course. The procedure is handmade of justice and justice is never subservient to the procedure and, accordingly, this Court is of the opinion that when all endeavours of reconciliation between the parties made by this Court have failed, then there is no logic in asking the parties to go back to the Court below to start a fresh inning of litigation when this Court is fully convinced that the legal ground of divorce exists in favour of two wives who are appellants before us. (8) It is also admitted position in these cases that both the husbands had remained in jail for the charges of sections 406 and 498-A, I.P.C. when F.I.R. was lodged against them by their wives who are appellants before us. (8) It is also admitted position in these cases that both the husbands had remained in jail for the charges of sections 406 and 498-A, I.P.C. when F.I.R. was lodged against them by their wives who are appellants before us. (9) Even after remaining in jail for some time, both husbands are keen to take their wives back and it has been said that because of the disproportion in the gender ratio prevailing in the Rajasthan, they may have to live singly for the rest of their life if their wives are not directed to live with them. 7. This Court is also convicted in these matters that the appellants are not, in any way, taking advantage of their own wrong or disability for the purpose of such relief. This Court is also convinced that there has not been any unnecessary or improper delay in instituting the proceedings on the part of the appellants and it can also be said that there is no other legal ground why relief should not be granted. Hence, in the circumstance of all these four matters, S.B. Civil Misc. Appeal No. 5331/2011 and S.B. Civil Misc. Appeal No. 5333/2011 (both against the decree for restitution of conjugal rights) are hereby dismissed as not pressed, but other two appeals, namely, S.B. Civil Misc. Appeal No. 5532/2011 and S.B. Civil Misc. Appeal No. 5334/2011 (against the decree of divorce) are hereby accepted and the marriage of Smt. Munni Devi with Parma Ram as well as marriage of Smt. Maina Devi with Dharma Ram are hereby dissolved with immediate effect. Costs made easy. 8. This order, by which the above mentioned four appeals have been disposed of, has been passed by this Court by exercising its power under section 151, C.P.C. read with Article 227 of the Constitution of India. It is pertinent to note here that under section 151, C.P.C., this Court has got inherent powers to make such orders as may be necessary for the ends of justice and to prevent abuse of the process of the Court and procedural law cannot circumscribed this Court's powers which are under section 151, C.P.C. as well as under Article 227 of the Constitution of India. It is pertinent to note here that facts of all the four cases have not been discussed here and rightly so because these four appeals have been disposed of only on the legal point where the facts were not necessary to be narrated. For the satisfaction of the learned Advocate for the appellants, some ruling referred by him, namely, (1) Ravindra Kumar Tiwary v. Smt. Anandi Tiwari, 2012 (110) AIC 790 (Jhar HC) , Naueen Kohli v. Neelu Kohli, 2006 (40) AIC 1 (SC) , Smt. Suman v. Arvind Kumar, 2007 WLC (Raj) UC 278 , Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121 may also be mentioned here but the conclusion arrive at by this Court in these four appeals, does not need support of any of these rulings. 9. All the four civil misc. appeals stand disposed of as indicated above. Record of the Lower Court be sent back in all these four matters with the copy of this order with each file.Appeal Disposed of. *******