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2007 Supreme(Raj) 199
2007 (1) W.L.N. 150 (Raj.)
Rajasthan High Court (Jaipur Bench)
HON’BLE MR. JUSTICE SHIV KUMAR SHARMA
HON’BLE MR. JUSTICE R.S. CHAUHAN
Gopi Bai (Smt.)
Versus
Shri Govind Ram
D.B. Civil Misc. Appeal No. 1558/2001—Decided on 05.02.2007.
APPEARANCES :
Mr. Ashwin Garg, Advocate, for the Petitioner-Wife.
Mr. A.K. Pareek, Advocate, for the Respondent-Husband.
Headnote:(A) Hindu Marriage Act, 1955—Secs. 13 (1-A) & 23—Family law—Divorce—Grant of divorce decree in favour of husband—Validity—In case the husband does not follow the directions of the Court and refuses to implement a decree for restitution of conjugal rights, such an action would tantamount to wrong committed by him under Sec. 23—He cannot be permitted to take advantage of his own wrong—Hence, he cannot seek a decree under Sec. 13 (1-A)—His family kicked the wife and the child out of the matrimonial home—Hence, desertion is not from the side of the wife, but from the side of the husband—Grant of divorce decree in favour of husband—Not proper. [Paras 11-15]
Held : Marriage is a sacred bond entered into by the husband and the wife. Both are duty bound to ensure the solidity of the institution. They should make an endeavour to live in peace and harmony. In case either one of them breaks the bond, the erring party cannot be allowed to take advantage of his/her own wrong. To allow the erring party to take advantage of his/her own wrong is to motivate people to dilute and destroy the institution of marriage. Since the family is the basic unit of any society, it is imperative that the family be protected and promoted by the two spouses. The Courts of law are also bound to protect and promote the family as a social unit. Therefore, the Court are duty bound to consider as to who is in fault while considering a petition for divorce. Sec. 23 of the Act merely imports "the fault theory" in divorce cases. [Para 12]
In the present case, the learned Judge has ignored the importance of the fault theory. A bare perusal of the evidence of the wife and of her father, D.W. 2 Devdas, clearly reveals that the husband's family was agitated by the fact that the wife's family had broken of the engagement between the wife's younger sister and the wife's younger brother-in-law (Devar). In his statement, D.W. 2 clearly explained that the brother-in-law was mentally challenged. Therefore, they had decided to call off the engagement. The calling off the engagement created an ego hassle between the two families. The husband's family seems to have taken it as a personal affront. Therefore, the husband's family kicked the wife and the child out of the matrimonial home. Hence, the desertion is not from the side of the wife, but from the side of the husband. [Para 13]
Moreover, once the decree for restitution of conjugal rights was granted in favour of the wife, it was the husbands' legal duty to resume his cohabitation with the wife. In the age of gender justice and women emancipation and empowerment, it cannot be argued that it is the duty of the wife to go back to the matrimonial home. Today, it is equally the duty of the husband to resume cohabitation and to take his wife back to the matrimonial home. Since the husband had filed the divorce petition on the ground that the wife did not resume cohabitation despite the decree of restitution of conjugal rights, in order to protect her interest, the wife has claimed that the cohabitation was resumed by the husband himself. However, the learned Judge has thoroughly analyzed the evidence and has rightly concluded that the cohabitation was not resumed between the parties. It is, indeed, surprising that having concluded so, the learned Judge failed to see that the fault lay with the husband and not with the wife. Therefore, the learned Judge has mis-appreciated the evidence and has drawn a wrong conclusion. The learned Judge has also failed to apply Sec. 23 of the Act.[Para 14]
(B) Hindu Marriage Act, 1955—Sec. 23—Scope and ambit of—"Fault Theory" in divorce cases—stated.
Law Well Settled :
In case the husband does not follow the directions of the Court and refuses to implement a decree for restitution of conjugal rights, such an action would tantamount to wrong committed by him under Sec. 23.
2. The factual matrix of the case is the wife and the husband (henceforth to be referred to as ‘the wife’ and ‘the husband’ respectively, for short) were married in 1984 according to the Hindu rites and customs. During the wedlock, a girl, Usha was born on 02.01.1990. After the birth of the daughter, the wife was allegedly thrown out of her matrimonial home. She, therefore, decided to go back to her parental home. Unable to look after herself and the child, she filed an application for maintenance under Sec. 125 of the Code of Criminal Procedure (henceforth to be referred to as ‘the Code’ for short). She also filed an application under Sec. 9 of the Hindu Marriage Act, 1955 (henceforth to be referred to as ‘the Act’, for short). Vide order dt. 16.09.1993, her application under Sec. 9 of the Act was allowed and the husband was directed to resume cohabitation with the wife. However, according to the husband, he refused to co-habit with the wife. Instead, he filed an application against the wife under Sec. 13 of the Act on the ground of non-resumption of cohabitation by the wife.
3. In the divorce petition, the husband claimed that after the delivery of the child the wife did not return to the matrimonial home. The reason for her non-return was that the husband’s younger brother was engaged to the wife’s younger sister. But, subsequently, the wife’s family broke off the said engagement. The husband’s family tried their level best to prevent the marriage of the wife’s sister to another person. But, her family succeeded in getting her married off to one Mr. Chetandas. Further according to the husband in 1991, the wife filed an application under Sec. 125 of the Code and another application under Sec. 9 of the Act. He and the members of the community tried to convince the wife to return to her matrimonial home. But she refused to do so. He further claimed that vide order dt. 16.09.1993, the learned Judge had allowed the application under Sec. 9 of the Act for restitution of conjugal rights in favour of the wife. However, despite the said decree in favour of the wife, she has not resumed cohabitation with the husband. Hence, he is entitled for divorce on the non-compliance of the decree for restitution of conjugal rights.
4. The wife filed her written statement against the said application. In her written statement, she narrated her tale of woes. According to her, the main root-cause for her troubles is the fact that her family refused to marry her younger sister to her younger brother-in-law (Dewar). Ever since the breaking off the said engagement, the husband’s family members are against her. According to her, the in-laws family, including her husband, had kicked her out of the matrimonial home. Ever since then, she has been living with her parents. She had filed an application under Sec. 125 of the Code and another application under Sec. 9 of the Act. According to her, the husband had resumed co-habitation for few days, but because of his family pressure he had abandoned her. Hence, the non-resumption of cohabitation is not by her, but by the husband.
5. On the basis of the pleading, the learned Family Court had framed two issues. After considering the oral and documentary evidence, the learned Judge had granted the divorce in favour of the husband. Hence, this appeal before this Court.
6. Mr. Ashvin Garg, the learned counsel for the wife, has argued that the husband had filed the divorce petition solely on the ground that the wife did not resume cohabitation with him despite the existence of the decree for restitution of conjugal rights in favour of the wife. Secondly, the learned Judge has failed to appreciate the fac
