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2025 DIGILAW 11 (GUJ)

Rashmi W/o Ketankumar Engineer @ Rashmi Dhirubhai Vaghela v. Ketankumar Karsanbhai Engineer

2025-01-06

BIREN VAISHNAV, DEVAN M.DESAI

body2025
JUDGMENT : BIREN VAISHNAV, J. 1. This Appeal has been filed by the wife-appellant challenging the judgment and decree dated 29.06.2011 passed by the learned Family Court No.4, Ahmedabad. By the aforesaid judgment and Order, the Family Court allowed the Family Suit No.604 of 2004 filed by the respondent-husband preferred under Section 13(1-A)(ii) of the HINDU MARRIAGE ACT , 1955 (hereinafter referred to as ‘the Act’). 2. Heard Ms.Falguni Trivedi, learned counsel for the wife-appellant and Dr.Tapan Trivedi, learned counsel for the respondent-husband. 3. Brief facts narrated in the appeal are as under:- 3.1 The parties to this appeal got married on 11.10.1990. It appears that both parties filed applications for restitution of conjugal rights under Section 9 of the HINDU MARRIAGE ACT , 1955. The application filed by husband was numbered as Hindu Marriage Petition No.1433 of 2000 and the application filed by the wife is numbered as Hindu Marriage Petition No.1491 of 2000. Upon consolidation, both applications were decided by an order dated 30.09.2002, wherein the Trial Court allowed both the applications and directed the parties to reunite. 3.2 Thereafter, the respondent-husband filed Family Suit No.604 of 2004 under Section 13(1-A)(ii) of the Act, seeking a decree of divorce. Among the grounds raised in the petition for divorce under Section 13(1-A)(ii) of the Act, it was contended that the appellant was not willing to reside with the respondent and that she inflicted cruelty and that he therefore, requested the Family Court to grant a divorce. 3.3 The respondent-original applicant was examined through an Affidavit at Ex.31. In his deposition before the learned Family Court, he stated that the appellant, who was working in TV Serials and doing Stage shows, despite having a daughter and a son (twins) born on 07.05.1997, was unwilling to stay with the family at their residence, and would frequently move out of the household to places like Surat, Mumbai and even abroad. 3.4 It was the case of the husband that on 13.03.1999, the wife’s brother entered the house in a drunken condition, as a result of which, the husband- respondent herein was constrained to file a complaint before the police station on 14.03.1999. In the Cross- examination, he admitted that the family had shifted to new flat purchased by his father namely C/31, Om Villa, Near Om Tower, Shahibaug and that they continued to reside together till they separated on 18.03.1998. In the Cross- examination, he admitted that the family had shifted to new flat purchased by his father namely C/31, Om Villa, Near Om Tower, Shahibaug and that they continued to reside together till they separated on 18.03.1998. 3.5 The appellant’s mother-in-law- Gauriben Karsanbhai Parmar was examined at Ex.51. In her deposition, she stated that the appellant would often engage in quarrels and instigate her husband, misbehave, and show a preference for her career outside the household. 3.6 The appellant was examined at Ex.55. The family Court, after extensively referring to the evidence, judgments and records, and considering the provisions of Section 13(1-A)(ii) of the Act, found that, admittedly once a decree of restitution of conjugal rights had been passed on 30.09.2002, there was no restitution of conjugal rights until 28.11.2003, when they met at the wedding of the appellant’s sister. In light of this admitted position, the Family Court invoked the provisions of Section 13(1-A)(ii) of the Act and passed the decree for divorce. 4. Ms.Falguni Trivedi, learned counsel for the appellant would vehemently contend that the judgment of the learned Family Court is erroneous, insofar as once a common order was passed for restitution of conjugal rights, the husband was equally bound to comply with the judgment and decree in the application for restitution under Section 9 of the Act. Ms.Trivedi, learned counsel would further submit that application for divorce filed by the respondent was made with mala fide intentions, as the respondent was in a relationship with another woman. It was an admitted fact that the appellant was driven out of the home, and that the respondent herein - father was not looking after the children. In fact, it is an admitted position that the respondent had gone to stay away with another woman as mentioned in the judgment and in the ground 10 of the memo of appeal. 5. Dr.Tapan Trivedi, learned counsel appearing for the respondent would support the order of learned Family Court. 6. Though the paper book has been placed before us, upon perusal of the judgment and order of the Family Court as well as issues framed before it, the undisputed fact that emerges is that, both parties filed a joint application for restitution of conjugal rights and a decree was passed on 30.09.2002. 6. Though the paper book has been placed before us, upon perusal of the judgment and order of the Family Court as well as issues framed before it, the undisputed fact that emerges is that, both parties filed a joint application for restitution of conjugal rights and a decree was passed on 30.09.2002. Evidence on record indicates that neither party took steps to enforce the decree for restitution of conjugal rights, and admittedly, more than a year had passed without any such action. In light of this, the Family Court framed Issue No.1, which reads as under:- “(1) Whether the petitioner proves 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 a decree for restitution of conjugal rights in a proceeding to which they were parties as alleged in the petition?” 7. Section 13(1-A)(ii) of the Act reads as under:- “13(1-A) 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 a decree of divorce on the ground (ii) 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 a decree for restitution of conjugal rights in a proceeding to which they were parties.” 8. Reading of the Section would indicate that when either of the parties to a marriage, whether solemnized before or after the commencement of this Act, on presentation of a petition for the dissolution of the marriage on the ground that there has been no restitution of conjugal rights between the parties to the marriage for a period of one year or upwards after passing of a decree for restitution of conjugal rights, is entitled to decree of divorce. 9. The record indicates that, even though no evidence is discussed on the issue of cruelty or otherwise, the statutory provision which is reproduced hereinabove would automatically come into play based on the facts. Specifically, although the decree for restitution was passed on 30.09.2002, there was no enforcement of the decree or reunion of parties till 28.11.2003. On this ground, we find no fault in the assessment of the evidence and the Family Court not committed any error. 10. Specifically, although the decree for restitution was passed on 30.09.2002, there was no enforcement of the decree or reunion of parties till 28.11.2003. On this ground, we find no fault in the assessment of the evidence and the Family Court not committed any error. 10. In light of this, the present First Appeal stands dismissed. Interim Relief, if any, stands vacated. 11. In view of the dismissal of the First Appeal, connected Civil Applications do not survive and stand disposed of accordingly.