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2005 Supreme(Raj) 1480
High Court Of Rajasthan
Judgename : B. Prasad, Satya Prakash Pathak
Kailash Bhansali - Appellant
Versus
Surendra Kumar - Respondent
D.B. Civil Misc. Appeal No. 769 of 2001
Decided On : 06/13/2005
Mr. R.K. Thanvi & Mr. Sudhir Saruparia, for appellant. Mr. S.S. Purohit & Mr. P.C. Sharma, for respondent.
The entitlement to seek divorce and the denial of relief under Section 23(1)(a) based on non-compliance of the decree for restitution of conjugal rights.
Headnote:
Hindu Marriage Act 1955 - Divorce - Section 13(1)(A)(ii), Section 19 of the Family Courts Act, 1984 - [Restitution of Conjugal Rights, Divorce, Family Court] - [Section 13(1)(A)(ii), Section 23(1)(a)] - The court discussed the provisions of Section 13(1-A)(i) & (ii) and Section 23(1)(a) of the Act, and the interpretation of these provisions in relation to the entitlement to seek divorce and the denial of relief under Section 23(1)(a) based on non-compliance of the decree for restitution of conjugal rights. The court also referred to the judgments in Vimla Devi vs. Singh Raja, AIR 1977 P&H 167 and Smt. Saroj Rani vs. Sudarshan Kumar Chanda, AIR 1984 SC 1562 to support its decision.
Fact of the Case:
The appellant filed an application under Section 9 of the Hindu Marriage Act 1955 for restitution of conjugal rights. The respondent husband filed an application under Section 13(1)(A)(ii) of the Act, seeking divorce on the ground of non-compliance with the decree for restitution of conjugal rights. The Family Court granted the decree of divorce in favor of the respondent husband.
Finding of the Court:
The court found that the respondent husband was not entitled to the decree of divorce based on non-compliance with the decree for restitution of conjugal rights, as the appellant had withdrawn the execution proceedings for restitution of conjugal rights citing cohabitation between the parties.
Issues: The main issue was whether the respondent husband was entitled to maintain the decree of dissolution of marriage and the effect of his contracting a second marriage.
Ratio Decidendi: The court held that the respondent husband was not entitled to the decree of divorce based on non-compliance with the decree for restitution of conjugal rights, as the appellant had withdrawn the execution proceedings for restitution of conjugal rights citing cohabitation between the parties.
Final Decision: The court set aside the decree of divorce granted by the Family Court in favor of the respondent husband.
Satya Prakash Pathak, J.-This Civil Misc. Appeal under Section 28 of the Hindu Marriage Act 1955
(for short, hereinafter referred to as the Act) read with Section 19 of the Family Courts Act, 1984
arising from matrimonial proceedings, is directed against the Judgment and decree dated 30.07.2001
passed by learned Family Court, Udaipur granting decree of divorce in favour of respondent husband
and against the appellant wife.
2. Briefly stated, the facts leading to the present appeal are that the appellant filed an application under Section 9 of the Act of 1955 before the Family Court, Udaipur for restitution of conjugal rights and the Family Court by its order dated 210.1996 passed the decree to that effect. Earlier to that, the respondent husband, with whom the appellant was married in the year 1981 and out of whose wedlock two issues were born in the year 1982 & 1984, filed application for divorce against the appellant in the year 1992 before the Family Court on the ground of cruelty and desertion but the same was dismissed. Against that order, the respondent husband preferred appeal before this Court and the conciliation proceedings took place on 25.08.1995, 30.10.1995 and 211.1995 and the parties were afforded opportunities to reconcile. Later on the said decree passed by Family Court became final by the order of Division Bench of this Court dated 04.03.1997.
3. In the meantime, on 27.09.1995 the respondent husband filed another application under Section 13(1)(A)(ii) of the Act of 1955 stating that the appellant wife just orally agrees to live together but never stayed with him and that the decree of conjugal rights having been passed about 23 months back and the compliance thereof being not made, the respondent husband is entitled to the decree of divorce against the appellant. The said application was registered as Case No.183/1998 in the Family Court, Udaipur.
4. Reply to this application was filed by the appellant wife on 23.03.1999 in which, she, while denying the allegations of cruelty submitted that earlier also on this ground divorce was denied and the appeal filed against that was also dismissed by the High Court. It was also stated that the respondent husband had not paid her the expenses for travelling and lodging boarding etc. and an amount of
Rs.12,060/-remained due against the husband which was concealed from the Court. In addition to that the husband had given an undertaking before this Court on 26.08.1996 that he would maintain his wife and children and the appellant and respondent would remain as husband and wife and he would discharge the duties of marital life but did not stick to the undertaking. It was also stated that appellant and respondent while living in the same house in two separate floors discharged their social obligations and also had cohabitation stealthily after the children went to sleep. Regarding cruelty, the wife took the plea that the matter covered under res-judicata and the husband made such false allegation in order to misguide the Court. She also stated that the execution application for the conjugal rights was not pressed as physical relationship between the parties had established number of times and in those circumstances there was no need to continue the execution application. The appellant prayed for dismissal of the application with costs.
5. On the pleadings of the parties, the learned Family Court framed issues on 23.04.1999 to the effect that whether after passing of one year or more from the decree of restitution of conjugal rights dated 210.1996 there had been no restitution of the conjugal rights between the parties and if so then what relief can be granted.
6. The respondent husband, thereafter, filed rejoinder on 07.06.1999 and while rebutting the submissions of appellant wife, inter-alia stated that he had given accommodation to the wife in first floor of the house and making regular payment of maintenance. He ultimately prayed for the decree of divorce.
7. Be
