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1985 Supreme(Del) 62
High Court Of Delhi
SANTOSH KUMARI - Appellant
Versus
KEWAL KRISHAN - Respondent
First Appeal Order 125 of 1984
Decided On : 02/01/1985
L.Bhatia, Uma Datta, USHA KUMARI, Virender Mehta
A husband is not entitled to a divorce on the ground of no cohabitation if he has not allowed the marital living conjugated during the period that the wife was living in the matrimonial home.
Headnote:
HUSBAND AND WIFE - MAINTENANCE - HUSBAND TAKES THE WIFE TO HIS HOME BUT NO COHABITATION OCCURS - TAKING HER TO DEFEAT MAINTENANCE RIGHT - HUSBAND'S RIGHT TO SEEK DIVORCE ON THE PLEA OF NO COHABITATION MAY BE REFUSED ON THE GROUND OF LACK OF BONA FIDES - PROVISION OF S. 9 MAY BE ABUSED AND WIFE SHOULD GUARD HERSELF AGAINST ILL-CONCEIVED AND RECKLESS LEGAL ADVICE - CONJUGAL RIGHT EXPLAINED.
Fact of the Case:
Kewal Krishan and Santosh Kumari were married in 1977 and lived together for about two years. Santosh Kumari then moved out of the matrimonial home and filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. Kewal Krishan withdrew his petition for divorce and was ordered to pay Santosh Kumari maintenance. Kewal Krishan then filed a petition for divorce on the ground that more than a year had passed since the decree for restitution of conjugal rights and the parties had not resumed cohabitation.
Finding of the Court:
The court found that Santosh Kumari had returned to the matrimonial home in March 1982 and stayed there until June 1982. However, the court also found that there was no cohabitation between the parties during that time. The court held that Kewal Krishan was not entitled to a divorce because he had not allowed the marital living conjugated during that period.
Issues: Whether Kewal Krishan was entitled to a divorce on the ground that more than a year had passed since the decree for restitution of conjugal rights and the parties had not resumed cohabitation.
Ratio Decidendi: The court held that Kewal Krishan was not entitled to a divorce because he had not allowed the marital living conjugated during the period that Santosh Kumari was living in the matrimonial home. The court also held that the provision of Section 9 of the Hindu Marriage Act may be abused and that wives should guard themselves against ill-conceived and reckless legal advice.
Final Decision: The court allowed Santosh Kumari's appeal and dismissed Kewal Krishan's petition for divorce.
( 1 ) MAINTENANCE, husband takes the wife to his home but no cohalitation occurs the taking her to defeat maintenance right), then husband s right to seek divorce on the plea of no cohabitation may be refused on the ground of lack of bona fides. Provision of S. 9 may be abused and wife should guard herself against ill-conceived and reckless legal advice. Conjugal right explained id park 6. Before considering the merits of this appeal moved by Santosh Kumari against the grant of a decree of divorce against her, reference may be made to C. M. No. 5135 which she has moved u/s 5 of the Limitation Act for condonation of delay in filing the certified copy of the impugned judgment. The appeal itself was filed on 31. 5. 1984 on the basis of an uncertified copy, and the Court allowed her to do so subject to her filing the certified copy within time. This certified copy was filed on 30. 11. 1984, and there has been a delay of over 100 days, Along with this application, two affidavits have been filed; one of Santosh Kumari and the other of a clerk of Mrs. Usha Kumar, Advocate, who had filed this appeal. They show that the certified copy was, in fact, applied for within time, and when it was obtained it was given over to the counsel s clerk for being filed in Court. He however, failed to do so, and the certified copy got mixed up in the other papers of the office. Later when the counsel noticed this, a search was effected, and as soon as the certified copy 1985. Rajdhani Law Reporter was located it was filed in Court with application For condonation of delay. After considering these affidavits, I am inclined to condone the delay. The appellant acted diligently in applying for certified copy and obtaining the same. The default occurred with the counsel s clerk who misplaced it in other papers of the office. For this she was not to blame and her bona fides cannot be disputed. The divorce decree materially affected her life, and she had taken prompt steps to file the appeal to assail the same. Her conduct shows that she did everything that was required of her to file the appeal, and, therefore, she should not suffer for the negligence of the counsel s clerk. I am inclined to condone the delay.
( 2 ) KEWAL Krishan and Santosh Kumari were married on 6. 9. 1977 according to Hindu rites and lived together for about two years. Ever since then Santosh Kumari has been residing with her parents. She has no income of her own, her educational qualifications being upto 10th class. Kewal Krishan holds diploma in Ayurveda. There has been no child from the weldlock.
( 3 ) ON 29. 5. 1980, a petition for divorce was moved by Kewal Krishan against Santosh Kumari with allegations of cruelty, adultery and desertion. In the meanwhile Santosh Kumari also moved a petition for restitution of conjugal rights u/s 9 of the Hindu Marriage Act on 2. 7. 1980 in which she alleged that she had been turned out by Kewal Krishan when she and her parents were unable to meet further demands of dowry in the form scooter, fridge, cash etc. Both these petitions were consolidated. During the course of proceedings an order for interim maintenance u/s 24 of the Hindu Marriage Act was made which Kewal Krishan did not comply. Subsequently Kewal Krishan withdrew his petition for divorce on 11. 8. 1981. His defence to the petition of wife u/s 9 of the Hindu Marriage Act was struck off on his failure to pay the pendente lite maintenance, and that petition was allowed on 11. 8. 1981. It was observed that no reasonable excuse had been proved on record for Kewal Krishan to withdrew from the society of Santosh Kumari.
( 4 ) A petition for grant of maintenance u/s 125 Cr. P. C. was as well moved by Santosh Kumari against Kewal Krishan in a criminal court on 21. 8. 1981. After the close of the wife s evidence in this petition Kewal Krishan agreed to pay Rs. 300. 00 p. m. as maintenance to her. This was on 5. 6. 1984.
( 5 ) THE present petition for divorce was moved by Kewal Krisha
