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1992 Supreme(Bom) 251

IN THE HIGH COURT OF BOMBAY
Tipnis V.P. Saldanha M.F., JJ.
Sangeeta Balkrishna Kadam .... Appellant.
Versus
Balkrishna Ramchandra Kadam .... Respondents.
Leave Petition Application No. 74 of 1991 with Family Court Appeal No. 27 of 1992, decided on 29/30-4-1992.
Advocates appeared :
M D. Angal, for appellant.
V.A. Thorat, for respondent.

Headnote:Section 151.

       See Hindu Marriage Act, 1955-Sections 13 & 27.

       Sections 13 and 27-Civil Procedure Code, 1908, Section 151-Divorce suit.

       Institution of by wife-Court passed divorce decree-Delivery of wifes property to her can be directed in such decree-Court can invoke power under Section 151, Civil Procedure Code-Hindu Marriage Act, silent in this respect.

       Sections 13 (1-A), 23 (1) (a) & 37 (1) (a)-Applicability of.

       As far as the appellant-wife was concerned having obtained a decree on her own violation and not having taken any steps to resume cohabitation she can hardly be permitted to raise the legal bar contemplated by Section 23 (1) (a) of the Hindu Marriage Act. It is true that a week attempt was made before the Family Court on the part of the appellant wife to state that she did try to visit the residence of the respondent-husband and that the door of the house was closed. This is totally and throughly unsatisfactory, because in the background of the judicial separation if the appellant-wife was serious about the resumption of cohabitation, she would have taken steps through the Court because the appeal was pending at the relevant time or through the respective learned Counselor would have made attempts in the form of letters; none of which has been done and a bald statement in the air that some attempt was made to visit the flat occupied by the respondent husband, to our mind, would not be of any assistance to her.

       There is an unqualified right to divorce as soon as the conditions laid down in Section 13 (I-A) of the Hindu Marriage Act as amended by Act No. 44 of 1964 are fulfilled and that refused to comply with the decree for restitution of conjugal rights and/or judicial separation cannot defeat the claim for dissolution of marriage, even it made at the instance of the party against whom the decree was made.

       Mr. Angal relied on the mame observation of the learned Judge wherein he has cited illustrations indicating where a party can be so disqualified if it is taking advantage of its own wrong. We have analysed this and a few other decisions that were cited before us and we need to observe, in passing, that the statute contemplates a situation of back down as a marriage and it is virtually at the almost terminal stage that one of the spouses would apply either for divorce or for judicial separation.

       The Legislature itself has taken cognizance of the fact that the marriage is virtually at the terminal stage and has only prescribed the period of 2 years in the fervent hope that if at all there is a total change of heart during this limited period that, the marriage could be revived or restored. In the absence of such a resurrection of the almost dead marriage, the Legislature contemplated that the Court shall without hesitation [pass a decree as it would be unfair to keep the parties technically bound to the marriage thereafter. The general provision that is contained in Section 27 (I) (a) of the Hindu Marriage Act is a specific provision applicable to all proceedings specifically to matrimonial proceeding and cannot be read in isolation as being applicable only to the cases of the present type and confined to the interim period of two years.

       It is necessary also that this factor will have to be fully and conclusively established before the Court because the onus of proving this ground or fact shafts entirely to the party who is making the charge. Viewed at from this angle, we find that there is no material before the Court in support of the argument, though this was the only delence taken up before the Family Court. Having regard to this situation, as appeal fall and stands dismissed.

       Section 25,-Maintenance-Grant of.

       It cannot be take back to point of time of proceedings instituted earlier in case of parallel matrimonial proceed ins.

judgment

Per SALDANHA M.F., J.:—Aspects of some significance touching proceedings instituted for dissolution of marriage under the Hindu Marriage Act, 1955 have arisen in these appeals, in which we have heard learned Counsel extensively, which issues are summarised below:

a) Whether in a proceeding for dissolution of marriage while granting a relief under the Hindu Marriage Act, 1955, the trial-Court would be justified in the grant of ancillary orders in relation to items of property, such as the ornaments, furniture, fixtures, etc., or whether on a strict construction of Section 27 of the Hindu Marriage Act, a Court would be required to direct the parties to adopt separate proceedings only in respect of these reliefs?

b) Where the Act is silent and it appears both reasonable and desirable that the reliefs in respect of property not covered by section 27 of the Hindu Marriage Act be granted, whether the inherent powers under section 151 of the Code of Civil Procedure ought to be used?

c) Whether in a case of grant of permanent maintenance/alimony at the stage of final disposal of the petition the order can date back to the point of time of the institution of parallel matrimonial proceedings earlier instituted in the face of an interim order refusing the grant of maintenance in that case?

d) Whether the Court would be justified in refusing a litigant, who is alleged to have frustrated the resumption of cohabitation, the relief of divorce on the ground that the party is taking advantage of its own wrong?

2. These are some of the main facets of the dispute that has fallen for adjudication before us. We shall, to the extent necessary, summarize the history of this proceeding, which is rather unusual and which, in fact, encompasses three different matrimonial proceedings. The appellant-wife had instituted M.J. Petition No. 383 of 1986 before the City Civil Court at Bombay on 4-4-1986 praying for a decree for judicial separation as also for a direction that she be awarded maintenance at the rate of Rs. 1,050/- per month for her three children. The appellant-wife was gainfully employed at that time and did not pray for any maintenance for herself. This petition was preceded by an earlier, petition, being M.J. Petition No. 662 of 1982, filed by the respondent-husband. He had sought a decree of divorce on the ground of cruelty. The parties are Hindus and were married at Bombay on 11-5-1969 according to the vedic rites and ceremonies. The couple had three children, the first of them being a son by the name Rajesh, the second being a daughter by the name Unnati and the third a son by the name of Suprasad. We are not immediately concerned with the lengthy pleadings that are on record wherein the parties have traded a number of charges against each other. The reason for this is that the petition filed by the husband, wherein he alleged instances of cruelty which were denied by the appellant-wife, was contested and the City Civil Court dismissed the petition with costs. It is relevant to point out that by virtue of a direction from the High Court, M.J. Petition No. 583 of 1986, which had been filed by the wife wherein she had prayed for a decree of judicial separation, was heard along with the husband's M. J. Petition No. 662 of 1982 and the petitions were disposed of by a common judgment dated 21-4-1987. This aspect is of some relevance because Mr. Angal, learned Counsel appearing on behalf of the appellant-wife, has sought to advance a submission on the issue of maintenance, which will have some bearing on the fact that the two petitions came to be heard and disposed of through a common judgment. The City Civil Court at Bombay, while dismissing the husband's petition, decreed the wife's petition and she was granted a decree of judicial separation. The only relevant aspect of the matter that is of some consequence as far as the present proceeding is concerned is that, admittedly, after a short cohabitation lasting about three years, the wife le









































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