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2019 Supreme(Kar) 828
IN THE HIGH COURT OF KARNATAKA
RAVI MALIMATH, B.M. SHYAM PRASAD, JJ.
K. Jayanthi - Appellant
Versus
B. Nagaraj - Respondent
Misceleneous First Appeal No. 4979 of 2012
Decided On : 03-09-2019
Advocate Appeared:
R. Gopal, Adv., S.V. Prakash, Adv.
The right to seek dissolution of marriage under Section 13(1A)(ii) of the Hindu Marriage Act is not absolute and is conditioned by the provisions of Section 23, which requires the court to ensure that the petitioner is not taking advantage of their own wrong or disability for the purpose of relief.
Headnote:
Divorce - Restitution of Conjugal Rights - Hindu Marriage Act,1955 - Section 13(1A)(ii)
Fact of the Case:
The husband filed a petition for dissolution of marriage under section 13(1A)(ii) of the Hindu Marriage Act, 1955, claiming that there had been no restitution of conjugal rights for over a year after the confirmation of the decree for restitution of conjugal rights. The wife contested, alleging that the husband had frustrated the decree of restitution of conjugal rights.
Finding of the Court:
The family Court concluded that the husband was able to establish the lack of cohabitation for over a year after the decree of restitution of conjugal rights and that the marriage was irretrievably broken down. The wife failed to establish that the husband had frustrated the resumption of cohabitation.
Issues: The main issue was whether the husband was entitled to a decree of divorce under section 13(1A)(ii) of the Hindu Marriage Act, and whether the wife's defense under section 23(1)(a) was valid.
Ratio Decidendi: The right to seek dissolution of marriage under Section 13(1A)(ii) of the Hindu Marriage Act is conditioned by the provisions of Section 23. The court must examine whether the petitioner is not taking advantage of their own wrong or disability for the purpose of relief.
Final Decision: The appeal was dismissed, and the husband was granted a decree of divorce under section 13(1A)(ii) of the Hindu Marriage Act.
JUDGMENT :
B.M.SHYAM PRASAD, J.
1. This appeal is by the wife calling in question the judgment and decree dated 9th April 2012 in MC No. 47 of 2011 on the file of the Family Court at Shivamoga (for short, 'the family Court'). This petition in MC No. 47 of 2011 is filed by the respondent-husband under the provisions of section 13(1A)(ii) of the Hindu Marriage Act,1955 for dissolution of the marriage. The petition is allowed, and the marriage is dissolved. Therefore, the wife has filed this appeal.
2. The marriage between the parties is solemnized on 2nd March 1994. A girl child is born to them on 3rd March 1995. The husband filed a petition for dissolution of the marriage in MC No.29 of 1996, and the wife requited by filing a petition for restitution of conjugal rights in MC No.39/1996. These two petitions were taken up for common disposal, and by the common judgment dated 6th January 2005, the Family Court Shivamoga dismissed the husband's petition for dissolution of marriage and allowed the wife's petition for restitution of conjugal rights. The husband called in question the common judgment dated 6th January 2005 both as regards the dismissal of his petition for divorce and the grant of restitution of conjugal rights to the appellant. A co-ordinate bench of this Court dismissed both the appeals on 1st June 2009. It is after the dismissal of the appeals, the husband filed the present petition in MC No. 47 of 2011 for dissolution of marriage under the provisions of section 13(1-A)(ii) of the Hindu Marriage Act 1955 (for short, 'H M Act').
3. The husband, in support of his plea for divorce in the present petition, contended that cohabitation is not resumed despite the fact that it was more than a year after the judgment of this Court on 1st June 2009, confirming the decree for restitution of conjugal rights granted by the Family Court Shivamoga. The wife, who obtained the decree for restitution of conjugal rights, has not made any effort to commence matrimonial life. The couple are separated for over 16 years, and the marriage between them is irretrievably broken down. There is no possibility of a reunion. The wife has not only caused mental distress and agony to the him, she has also hurt him physically. He is entitled for divorce on the ground that there has been no restitution of conjugal rights for over a period of one year from 1st June 2009, the date of dismissal of appeal confirming the grant of conjugal rights at the instance of the wife in MC No. 39 of 1996.
4. The wife filed objection statement contesting the present petition, but without disputing the date of marriage, or the birth of the child, or the initiation of respective proceedings for divorce and restitution of conjugal rights, or the dismissal of the petition for divorce by the Family Court Shivamoga and the grant of the decree of restitution of conjugal rights, or the confirmation thereof with the dismissal of the appeals filed by the respondent. However, the wife contended that there was no resumption of marital life even after the confirmation of the decree for restitution of conjugal rights because the husband had not allowed her to join him in the matrimonial home and discharge her matrimonial obligations. The husband was taking advantage of his own wrong in filing the petition under the provisions of Section 13(1-A)(ii) of the H. M. Act, and as such, the petition was liable to be dismissed in view of the provisions of Section 23 of the H. M. Act.
5. The husband and wife examined themselves in support of the respective cases, and they relied upon the certified copy of the prior proceedings/judgments. The family Court formulated the question,
'Whether the petitioner has proved that there has been no restitution of conjugal rights between him and respondent for a period of one year and upwards after the decree of restitution of conjugal rights in the previous proceedings between them and therefore, he was entitled for a decree of divorce '.
6. The family Court o
