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2018 DIGILAW 1077 (JHR)

Puja Singh v. Mukesh Kumar Singh

2018-05-14

APARESH KUMAR SINGH, RATNAKER BHENGRA

body2018
JUDGMENT : Heard learned counsel for the parties. 2. Wife is the appellant, aggrieved by the decree of divorce passed by the learned Principal Judge, Family Court, East Singhbhum, Jamshedpur by the judgment dated 29.04.2016 and decree dated 12.05.2016. 3. Petitioner husband/respondent herein sought dissolution of marriage under Section 13(1A) of the Hindu Marriage Act alleging non-compliance of the order of restitution of conjugal rights passed in Matrimonial Suit No. 200-A/2007, judgment and decree being dated 05.06.2008/10.06.2008 respectively. 4. Petitioner-husband, pleaded before the learned Family Court that since the solemnization of their marriage on 12.03.2007, they were residing as husband and wife till 15.05.2007 and the marriage was duly consummated also. Since the wife deserted him and left the matrimonial home on 16.05.2007 and had been residing separately and despite all efforts she refused to resume conjugal relationship, therefore Matrimonial Suit No. 200-A of 2007 was filed for restitution of conjugal rights. The case proceeded ex parte and a decree for restitution of conjugal rights was passed on 05.06.2008/10.06.2008 respectively. Since the passing of the decree, respondent wife did not comply with the order and restitution had not been made, petitioner sought a decree of dissolution of marriage under Section 13 (1A) of the Hindu Marriage Act of 1955, as a period of one year had already elapsed, since the decree. 5. The respondent/wife, appellant herein contested the case. According to her, she was residing at the matrimonial home till 16.09.2009, as such, there was no question of restitution of conjugal rights. The parties were living together and the respondent never left the matrimonial home as alleged on 15.05.2007. The allegation of demand of dowry had also been made. Since the decree of restitution of conjugal rights was passed ex parte, she had applied for setting aside the same, which is still pending. She had also lodged an FIR under Section 498-A of the Indian Penal Code before the Burmamines Police Station on being assaulted and ousted from matrimonial home on 6.09.2009, since then has been compelled to live separately. According to her, the present case was premature as the application for execution of the decree for restitution of conjugal right was pending. 6. The learned family Court re-casted the issues, considering the fact that the allegation of mental cruelty and desertion were not the basis for seeking dissolution of marriage. According to her, the present case was premature as the application for execution of the decree for restitution of conjugal right was pending. 6. The learned family Court re-casted the issues, considering the fact that the allegation of mental cruelty and desertion were not the basis for seeking dissolution of marriage. The case was under Section 13(1A) of the Hindu Marriage Act. Accordingly, the following issues were reframed : (i). Is the suit as framed maintainable? (ii). Whether the applicant has valid cause of action? (iii). Whether the applicant is entitled to a decree of divorce on account of non compliance of the order for restitution of conjugal rights by the respondent? (iv). Whether the respondent was living along with the applicant till 06.09.2009? (v). To what relief or reliefs is the, plaintiff entitled to? 7. The applicant/husband examined three witnesses, namely, himself as Witness No.1, his father as witness No.2 and one Upendra Kumar Singh as witness No.3. These witnesses reiterated the statement made about the marriage of the parties. The applicant and his father also mentioned about the decree of restitution of conjugal rights. Despite the fact that their examination in chief were in English but, in cross-examination they stated that they know little English and his father conveyed their intention to take her back in the matrimonial home. Witness No. 3 in his cross-examination deposed that the applicant is his brother. He was ignorant of the criminal case filed against the applicant by wife. His house was situated at a distance of 13 k.m. from the house of the applicant. 8. The respondent examined herself as witness No. 1 and another witness. She stated that she had been living with the applicant till 06.09.2009 when she was ousted from the house, for which a criminal case was filed. She also said that demand of dowry was made and on account of non-fulfilment of the demand, she was ousted from the house, which lead to institution of the criminal case under Section 498-A of the Indian Penal Code. She was also not aware of the judgment passed in Matrimonial Suit No. 200-A of 2007 on 05.06.2008 when she was residing with her husband. She has filed a criminal case under Section 498-A of the Indian Penal Code on 29.10.2009. She was also not aware of the judgment passed in Matrimonial Suit No. 200-A of 2007 on 05.06.2008 when she was residing with her husband. She has filed a criminal case under Section 498-A of the Indian Penal Code on 29.10.2009. In cross-examination, she stated that she came to know of the decree of restitution of conjugal rights on 06.09.2009 and thereafter filed an application for setting aside the said judgment and decree. She also said that the case was filed in the year 2010 and notice has not been sent. She also said that criminal case filed by her has been stayed by the Hon'ble High Court and denied the suggestion that while opposing the application of anticipatory bail, she said that she does not want to live with her husband. In. the last part of para 10 of cross-examination, this witness says that she is not putting Sindoor on her head. Her husband had taken away her 'mangalsutra'. She had lied application for maintenance which had also been dismissed and she has not challenged the said order. In her cross-examination, this witness said in the execution case that she cannot be compelled to live together. She has denied the suggestion that she is deliberately not complying the orders of the Court. Certified copy of the judgment and decree passed in Matrimonial Suit No. 200-A of 2007 has been exhibited as Ext. 1 and 2. 9. Learned Family Court after consideration of the materials on record and the evidences led by the parties came to the opinion that the respondent wife is not residing with the applicant despite the order for restitution of conjugal rights and to the contrary had preferred a criminal case against him and also an application for setting aside the decree for restitution of conjugal rights. The status of the case or whether it was pending had not been brought on record. According to the learned Court, the respondent-wife had voluntarily violated the order of the Court by non-restitution of conjugal rights for a period of more than one year of the passing of the decree, where-after the present case has been filed. Issue No. III was answered in favour of the applicant. According to the learned Court, the respondent-wife had voluntarily violated the order of the Court by non-restitution of conjugal rights for a period of more than one year of the passing of the decree, where-after the present case has been filed. Issue No. III was answered in favour of the applicant. The learned Court also, held that even after coming to know of the judgment and decree as per her statement on 06.09.2009, she instead of filing an application before the Court in execution case No. 05 of 2008 that she is ready to live with her husband, she had preferred an application for setting aside the decree for restitution of conjugal rights. She could have moved application for recording the satisfaction of the Court saying that she was living with her husband or that she is ready to live with her husband. Instead she had filed a criminal case against the applicant and his entire family members. Even till date she has not taken any step for restitution of conjugal rights. Under these circumstances, the learned Family Court was of the opinion that she is not interested in restoration of marital life. The learned Family Court also brushed aside the plea that the present suit is barred in view or the pendency of the execution case. Issue Nos. I and II were also decided in favour of the applicant. 10. Learned counsel for the appellant has referred to the orders passed in Execution Case No. 05 of 2008 dated 06.08.2013 and 22.08.2013 which are part of Annexure-1, the order sheet of the Execution Case filed by the applicant-respondent/husband herein. She has also referred to the order dated 11.03.2015 passed on an application of the applicant/husband under Section 151 of the CPC and under Order XXI, Rules 105 and 106 read with Section 151 of the CPC for restoration of execution case No. 05 of 2008. It is submitted that the finding of the learned Court to the extent that the applicant had not approached the learned Executing Court to show that she is ready to live with her husband is erroneous. The orders dated 06.08.2013 and 22.08.2013 both go to show that the judgment debtor/appellant wife herein had appeared before the Court physically on several dates. The orders dated 06.08.2013 and 22.08.2013 both go to show that the judgment debtor/appellant wife herein had appeared before the Court physically on several dates. On 06.08.2013, the lawyer of the decree holder had submitted that the judgment debtor should come herself to the house of the decree holder and that the decree holder will not take her to his house from the Court. Learned Court opined vide order dated 22.08.2013 that decree holder is not interested to take back the judgment debtor to his house rather the judgment debtor is ready to restore her conjugal relationship with the petitioner/her husband. Accordingly, the Execution Case was dismissed. Though the applicant-husband, later on, approached the Executing Court on/the same day for deference of the matter or for its joint hearing with the Matrimonial Suit No. 180 of 2009 but since the order had already been passed in the Execution Case, the learned Court kept the petition on record. These petition were again moved on 30.08.2013 but in the proceedings in the Execution case thereafter 'the applicant remained absent for all consecutives dates leading to dismissal of this application under Section 151 of the CPC and Order XXI, Rules 105 and 106 read with Section 151 of the CPC on 11.03.2015. The applicant/husband, therefore, should not be allowed to take advantage of his own conduct. Learned Court has not taken into account the conduct of the husband in refusing to take the judgment-debtor wife/appellant herein back to the matrimonial home. The appellant-wife had also been ousted from the matrimonial home on 06.09.2009 which compelled her to file a criminal case under Section 498-A of the Indian Penal Code on 29.10.2009. 11. Learned counsel for the respondent-husband submits that the Matrimonial Suit No. 200-A/2007 was decided ex-parte as despite valid service of notice on the respondent/wife therein, she failed to participate in the proceedings. It was only after the expiry of one year period from the date of the judgment and decree i.e. 05.06.2008/10.06.2008 that the husband had taken recourse to the provisions of Section 13(1A) of the Hindu Marriage Act for a decree for dissolution, of Marriage. Learned counsel further submits that in the criminal case appellant/wife had refused to agree to go back to her matrimonial home, as a result, the learned Court was persuaded to grant anticipatory bail to the husband. Learned counsel further submits that in the criminal case appellant/wife had refused to agree to go back to her matrimonial home, as a result, the learned Court was persuaded to grant anticipatory bail to the husband. The conduct of the appellant, therefore, shows that she has not only deliberately not complied with the, orders of the family Court for restoration of conjugal rights but gone on to file a criminal case against the husband and his entire family members. Even before the Court of learned Sessions• Judge, East Singhbhum, the appellant had refused to live with the petitioner though he had obtained decree for restoration of conjugal rights against the informant. Even on suggestion to settle the dispute amicably for living together, she had refused to enter into any compromise. In such circumstances, the prayer for anticipatory bail was allowed vide order dated, 16.11.2009 passed in ABP No. 805 of 2009. The learned Family Court in those circumstances, had taken into account the conduct of both the husband and wife and rightly come to the into account the conduct of both the husband and wife and rightly come to the conclusion that the respondent-wife had voluntarily violated the order of the Court for restitution of conjugal rights for a period of more than one year from the passing of the decree. The suit was filed after expiry of one year and therefore, the applicant was entitled to decree of divorce. Impugned judgment, therefore did not suffer from any error of law or fact which deserves interference. Learned counsel for the respondent-husband has however, not been able to dispute the finding recorded by the Executing Court in the order dated 06.08.2013, where both the parties were represented. He has also not disputed that the learned Executing Court had proceeded to hold by order dated 22.08.2013 that the decree holder is not interested to take back judgment debtor to his house rather judgment debtor is ready to restore her conjugal relationship with the petitioner, her husband. This Execution case was pending before the learned Principal Judge. Family Court East Singhbhum, Jamshedpur. 12. We have considered the submissions of learned counsel for the parties perused the impugned judgment and gone through the relevant materials on record, relied upon by the learned counsels. 13. This Execution case was pending before the learned Principal Judge. Family Court East Singhbhum, Jamshedpur. 12. We have considered the submissions of learned counsel for the parties perused the impugned judgment and gone through the relevant materials on record, relied upon by the learned counsels. 13. Impugned judgment has been passed in a Matrimonial Suit seeking dissolution of marriage only on the ground as provided under Section 13(1A) of the Hindu Marriage Act. The applicant-husband pleaded that there has been no restoration 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. However, it is also evident from the records that though the decree for restitution of conjugal rights was passed ex-parte, apparently for the reason that the appellant wife herein had not appeared to contest the suit despite service of notice but, in the execution proceedings being Execution Case No. 05 of 2005 instituted under Order XXI. Rule 32 of the CPC by the husband, judgment debtor/wife appeared and showed her readiness and willingness to go to her matrimonial house. The Executing Court in the order dated 06.08.2013 recorded the statement of the lawyer of the decree holder that the husband was insisting that the judgment debtor should come herself to the house of the decree holder and that he will not take the judgment debtor to his house from the Court. The judgment debtor for last several dates, was coming to the Court physically but the decree holder was not ready to take the judgment debtor to his house nor he is present in the Court for the last several dates. The learned Executing Court in its order dated 22.08.2013 took note of the background facts; the entire order sheet of the case and came to the considered view that the decree holder was not interested in taking back the judgment debtor to his house, rather the judgment debtor was ready to restore her conjugal rights with the petitioner/husband. Under such circumstances, the execution case was dismissed. Under such circumstances, the execution case was dismissed. It further appears from the order dated 11.03.2015 passed in the same execution case, on an application under Section 151 of the CPC to defer the case so that both cases bearing Matrimonial Suit No. 180 of 2009 and Execution Case No. 05 of 2008 be heard together and further application dated 30.08.2013 under Order XXI, Rules 105 and 106 for restoration of execution case that the learned Court found no representation on behalf of the applicant for more than 1 and 1/2 year. Accordingly, the said petition was also dismissed. The execution proceedings were going on in the Court of learned Principal Judge, Family Court itself. In this set of facts, borne out from the record of the execution case, the finding of the learned family Court that even after coming to know of the judgment and decree for restitution of conjugal rights on 06.09.2009, the respondent wife therein had not moved the executing Court to show that she is ready to live with her husband is an error of record. As has been noted above, it was the husband/applicant who had not shown any overt acts to take the judgment debtor/wife back to the matrimonial home despite her insistence on a number of dates. In such a situation, the petitioner husband should not have been allowed to take advantage of his own wrong. Section 23 of the Hindu Marriage Act, 1955 provides that in any proceeding under this Act whether defended or not, if the Court is satisfied that (a) any of the grounds for granting relief exist and the petitioner is not ill any way taking advantage of his or her own wrong or disability for the purpose of such relief, the Court shall decree such relief accordingly. From the aforesaid discussion it follows that the applicant/husband should not be allowed to take advantage of his own conduct. This significant aspect of the matter has been lost sight of by the learned Principal Judge, Family Court in the impugned judgment. The other materials relating to filing of a criminal case by the wife under Section 498-A of the Indian Penal Code or for seeking setting aside of the decree for restitution of conjugal rights, seem to have weighed upon the learned Family Court in reaching to an erroneous finding. The other materials relating to filing of a criminal case by the wife under Section 498-A of the Indian Penal Code or for seeking setting aside of the decree for restitution of conjugal rights, seem to have weighed upon the learned Family Court in reaching to an erroneous finding. What was relevant to be taken into account was the conduct of the parties towards compliance of the decree of conjugal rights passed by the learned Family Court earlier. The appellant herein could not have been accused of deliberately violating the order of the Court by non-restitution of conjugal rights. 14. In such circumstances, we are of the considered view that the impugned judgment and decree cannot be sustained in the eye of law and on facts. for the aforesaid reasons. Accordingly, they are set aside. Appeal stands allowed. Decree accordingly. Appeal allowed.