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2017 DIGILAW 2792 (ALL)

KIRAN @ KARUNA v. RAJ KUMAR

2017-12-01

ARUN TANDON, RAJIV JOSHI

body2017
JUDGMENT By the Court.—This appeal under Section 19 of the Family Courts Act, 1984 (herein after referred to as the Act, 1984) is directed against the judgment and order of the Principal Judge, Family Court, Jhansi passed in Petition No. 108 of 2003 (Raj Kumar Makdariya v. Kiran @ Karuna) dated 2.1.2010. 2. A Division Bench of this Court has already noticed the concession of the counsel for the parties in its order dated 10.1.2017 for the appeal being decided on the basis of the records received from the Court below without insisting on filing of paper book. Accordingly, with the consent of the parties, we have heard the appeal on merits. 3. Facts relevant for deciding the present appeal are as under : Marriage between Raj kumar Makdariya and Kiran @ Karuna was solemnized in accordance with the Hindu rights and rituals on 7.12.1996 at Jhansi. The husband filed an application under Section 13 of the Hindu Marriage Act, 1955 (herein after referred to as the ‘Act, 1955’) for divorce on 1.7.1998. The wife, on the contrary, filed a petition for restitution for conjugal rights under Section 9 of the Act, 1955 on 29.5.2000. Both the petitions were clubbed together and under the common judgment and order dated 9.4.2002, the petition of husband was rejected while the petition filed by the wife for restitution of conjugal rights was decreed. 4. Since the husband was not complying with the decree, the wife was compelled to file an execution application was numbered as Execution Case No. 06 of 2002. While the execution proceedings were still pending, the husband instituted a second petition for divorce under Section 13(1-A)(ii) of the Act, 1955 with the allegation that there has been no restitution of conjugal rights between the parties to the marriage for a period of one year after passing of the decree for restitution of conjugal rights dated 9.4.2002. 5. The application so filed was contested by the wife on the ground that it was the husband who was not complying with the decree which was granted under the judgment and order of the Family Court dated 9.4.2002, execution application in that regard was still pending. The wife contended that the husband was not complying with the decree, on one hand and on the other he was trying to take benefit of the expiry of the period of one year after the decree. The wife contended that the husband was not complying with the decree, on one hand and on the other he was trying to take benefit of the expiry of the period of one year after the decree. Therefore, no relief be granted to the husband in view of Section 23 of the Act, 1955. 6. The husband in replica contended that whatever may be the reason for non-compliance of the decree, the required period of one year has expired after a decree passed under Section 9, of the Act, 1955, the husband was entitled to a decree of divorce as prayed for. 7. The Trial Court under the order impugned even after noticing the facts as contended by the wife including that the application for execution of the decree granted on 9.4.2002 for restitution of conjugal rights was still pending has decreed the petition filed by the husband under Section 13(1-A)(ii) of the Act, 1955. 8. The wife, not being satisfied, has filed this Appeal. 9. There is hardly any dispute between the parties on facts as have been noticed herein above. Counsel for the parties have not disputed that the earlier petition filed by the husband for divorce and the petition filed by the wife for conjugal rights were decided under the common judgment and order dated 9.4.2002 while the suit filed by the husband was dismissed. The petition filed by the wife was allowed and a decree was issued commanding the husband to live as husband and wife with reference to the powers vested under Section 9 of the Act, 1955. 10. It is also admitted to the parties that the husband refused to comply with the said judgment and decree for restitution of conjugal rights forcing the wife to initiate execution proceedings. The proceedings were pending before the same Family Court where the second divorce petition was filed by the husband under Section 13(1-A)(ii) of the Act, 1955 and has been decreed. 11. We may record that under the judgment in appeal the Trial Court had rejected the plea of desertion and cruelty as was raised by the husband for relief of divorce. It however granted the relief on the ground provided for under Section 13(1-A)(ii) of the Act, 1955. 12. 11. We may record that under the judgment in appeal the Trial Court had rejected the plea of desertion and cruelty as was raised by the husband for relief of divorce. It however granted the relief on the ground provided for under Section 13(1-A)(ii) of the Act, 1955. 12. In order to keep the record straight we have required the counsel for the appellant to inform as to what order has been passed in the execution case pertaining to the restitution of conjugal rights, counsel for the appellant has brought on record a certified copy of the order dated 2.1.2002 (i.e. the date on which the order in appeal has been made.) By means of the order 2.1.2002 the execution application has been rejected as infructuous on the ground that a decree of divorce has been granted. 13. Counsel for the appellant Shri R.P.Tiwari would contend that there can be nothing worse for the wife, in the facts of the case. She had succeeded in getting a decree for restitution of conjugal rights in the year 2002 after dismissal of the divorce petition filed by the husband. The husband deliberately did not comply with decree for conjugal rights forcing the wife to initiate execution proceedings. While the execution proceedings were still pending the husband filed a divorce petition under Section 13(1-A)(ii) of the Act, 1955. 14. The Court below rejected the relief set up on the ground of desertion and cruelty, it has proceeded to grant the decree of divorce under Section 13(1-A)(ii) of the Act, 1955 despite being aware that the application for execution of decree for restitution of conjugal rights was pending before the same Court. Instead of deciding the execution proceedings first, the Family Court has take upon itself to decide the petition for divorce which was instituted subsequently and to grant the decree under Section 13(1-A)(ii) of the Act, 1955 and thereafter to dismiss the execution petition as infructuous. 15. He, therefore, submits that, in the facts of the case, it was writ large that it was the husband was taking benefit of his own wrong and, therefore, the relief of divorce as prayed by the husband was liable to be refused in view of Section 23 (1) (a) of the Act, 1955. 16. Counsel for the respondent Ms. 15. He, therefore, submits that, in the facts of the case, it was writ large that it was the husband was taking benefit of his own wrong and, therefore, the relief of divorce as prayed by the husband was liable to be refused in view of Section 23 (1) (a) of the Act, 1955. 16. Counsel for the respondent Ms. Shalini Gupta on the contrary would submit before us that the Apex Court in the case of Dharmendra Kumar v. Usha Kumar, AIR 1977 SC 2218 , has held that for constituting a wrong under Section 23 (1) (a) of the Act, 1955 mere denial to comply with the decree of conjugal rights will not suffice. The conduct of the husband alleged must be something more than a mere disinclination to agree to an offer of reunion. 17. Counsel for the respondent has also placed reliance upon the judgment of the Calcutta High Court in the case of Mita Gupta v. Prabir kumar, AIR 1989 Calcutta 248, paragraph 10 & 12 for the same proposition. 18. We have heard learned counsel for the parties and have gone through the records of the present appeal. 19. We may first examine with the judgment in the case of Dharmendra Kumar (Supra). At the very outset we may record that it was the wife who had got a decree of conjugal rights. The wife thereafter instituted the proceedings for a decree of divorce being granted under Section 13(1-A)(ii) of the Act, 1955 on the ground of non-restitution of conjugal rights even after one year of the decree. 20. The Apex Court in the said circumstances has gone on to hold that the wife (plaintiff in that case) was not under any decretal obligation to render her society. Non-compliance of the decree of conjugal rights cannot be the basis for denial of the relief of divorce asked by the wife and something more was required to be done by the party. 21. The facts of the case in hand are entirely different. In the facts of the present case the wife had obtained a decree for conjugal rights. The husband has not complied with the decree and, therefore, she instituted the execution proceedings. 21. The facts of the case in hand are entirely different. In the facts of the present case the wife had obtained a decree for conjugal rights. The husband has not complied with the decree and, therefore, she instituted the execution proceedings. While the execution proceedings were pending the husband instituted a second petition for divorce which had been granted and the execution proceedings had been rendered infructuous by the same Court on the same date. 22. The Apex Court in the case of The Hon’ble Supreme Court in the case of Bhavnagar University v. Palitana Sugar Mills (Pvt.) Ltd. and others, 2003 (2) SCC 111 , has held as follows:— “It is well-settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.” 23. The said judgement has been followed in the judgement of the Hon’ble Supreme Court in the case of Dr. Rajbir Singh Dalal v. Chaudhari Devi Lal University, Sirsa and another, AIR 2008 SCW 5817 . 24. We have, therefore, no hesitation to record that the facts in the case of Dharmendra Kumar (Supra) are clearly distinguishable and will not foreclose the case of the wife in this appeal. The Calcutta High Court has only followed the judgment of the Apex Court and, therefore, we need not to dilate any further in that regard. 25. We are of the considered opinion that in the facts of the case the wife has done within the legal means to get the available decree of restitution of conjugal rights enforced. 26. She had contested the divorce proceedings initiated by the husband at the first instance and filed a suit for conjugal rights. Both the proceedings were decided in her favour. The petition filed by the husband was dismissed while the petition of the wife was granted under the judgment and order dated 9.4.2002. The husband did not comply with the decree of the conjugal rights. 27. We may record that in view of the Order 21 Rule 32 of the Civil Procedure Code the defendant to a decree of conjugal rights cannot be arrested for enforcing the decree. The only remedy available is to the successful party is to get an order under Order 21 Rule 33 of the C.P.C. 28. 27. We may record that in view of the Order 21 Rule 32 of the Civil Procedure Code the defendant to a decree of conjugal rights cannot be arrested for enforcing the decree. The only remedy available is to the successful party is to get an order under Order 21 Rule 33 of the C.P.C. 28. In our opinion, in the facts of the case what was required to be done by the Court below was to have decided the application filed for execution of decree of the conjugal rights at the first instance and to arrive at a conclusion as to whether the husband has deliberately not complied with decree of restitution of conjugal rights or not or the wife was entitled to an amount to be determined by the Court under Order 21 Rule 33. If it has found that the husband had wronged the wife then in that circumstances the provisions of Section 23 (1) (a) of the Act, 1955 would have been attracted squarely. 29. Since the aforesaid procedure has not been followed by the Court while granting the decree in appeal before us we are inclined to hold that the judgment and order of the Family Court dated 2.1.2010 cannot be legally sustained and it has to be set-aside. It is ordered accordingly. 30. The petition as filed by the husband under Section 13(1-A)(ii) of the Act, 1955 alongwith execution case filed by the wife for restitution of conjugal rights are restored to their original number. 31. Although no appeal has been filed against the said order, but in larger interest of justice we are issuing such a direction. Both the petitions shall be heard and decided by the Family Court afresh. 32. We make it clear that the Family Court must decide the execution application first before deciding the divorce petition. 33. In view of the aforesaid the appeal is allowed subject to the observations made herein above.