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2012 Supreme(Raj) 260
[Citation : 2012(3) RLW 2835 (Raj.)]
(Rajasthan High Court)
Kailash Deo Vs. Smt. Shanti (Dr. Kothari, J.)
HON'BLE DR. VINEET KOTHARI, J.
Kailash Deo
Versus
Smt. Shanti
S.B. Civil Misc. Appeal No. 939 of 2004, decided on 22.02.2012
I.R. Choudhary, for Appellant-Husband;
SUNIL MEHTA, for Respondent-Wife
Headnote:Hindu Marriage Act,1955, Sec. 13 — Doctrine of irretrievable break-down of the marriage — Decree of divorce by husband — Parties are living separately for last 20 years — Respondent wife is striving hard to live with her husband and his after of Rs. 7.50 lacs as permanent alimony is not acceptable to her — Held — Mere lapse of period of 20 years per se cannot amount to the irretrievable breakdown of the marriage as it is not a statutory ground available for grant of decree of divorce u/S. 13 of the Act — Except Supreme Court, no other courts including High Court, are competent to pass a decree for mutual divorce if one of the consenting parties withdraws his/her consent before the decree is passed — Entitled to live with the appellant husband to share his property. (Paras 13, 25, 26)
Appeal dismissed.
fgUnw fookg vf/kfu;e] 1955] /kkjk 13 & fookg esa vlk/; xfrjks/k dk fl)kUr & ifr }kjk fookg foPNsn dh fMØh & i{kdkj fiNys chl o"kksZ ls vyx vyx jg jgs gS & izR;FkhZ iRuh vius ifr ds lkFk jgus gsrq th rksM+ dksf'k'k dj jgh gS ,oa ifr }kjk is'k izLrko mls 7-50 yk[k #i;s dh LFkk;h fuokZfgdk Hkh Lohdkj ugha gS & vfHkfu/kkZfjr & chl o"kZ dh vof/k dk O;ixu vius vki esa fookg esa vlk/; xfrjks/k dh Js.kh esa ugha vk ldrk D;ksafd vf/kfu;e dh /kkjk 13 ds rgr fookg foPNsn dh fMØh eatwj djus gsrq ;g dksbZ laoS/kkfud vk/kkj miyC/k ugha gS & loksZPp U;k;ky; ds flok; mPp U;k;ky; lfgr dksbZ Hkh U;k;ky; vkilh lgefr ls fMØh ikfjr djus gsrq l{ke ugha] ;fn i{kdkjksa esa ls dksbZ Hkh lger i{kdkj fMØh ikfjr gksus ls viuh lgefr okil ys ysrk gS & vihykFkhZ ifr ds lkFk jgus ,oa mldh lEifr esa fgLlk ikus dh gdnkj gSA ¼in la[;k 13] 25] 26½
vihy [kkfjt dhA
2. The appellant-husband, Kailash Deo Rajpurohit, has filed the present appeal under Section 28 of the Hindu Marriage Act, 1955 (for brevity, hereinafter referred to as `Act') being aggrieved by the judgment dated 3.6.2004 of the learned District Judge, Pali, rejecting his divorce petition under Section 13 of the Act in Civil Misc. Case No. 128/1995 (Kailash Deo vs. Smt. Shanti).
3. Marriage between appellant-Kailash Deo and respondent Shanti took place as per Hindu rites on 4.12.1986 at Village Madri, District Pali and out of said wedlock there was no issue. According to appellant, the respondent-wife lived with him at Desuri for about ten days and thereafter she went to her parents home and returned back in the month of September, 1987 only, and thereafter she kept on coming and going back. However, in the year 1988, after going back to her parents' home, she stayed there for one and half years and when she returned back instead staying in the matrimonial home, she stayed with her father in the house of one Bheek Singh. Thereafter, she started pressing upon the appellant-husband that he should leave the Government job of teacher and should live in Bombay with respondents brother, namely, Babu Singh, who was doing business there. It was further alleged that on 13.9.1990 by taking out a production warrant under Section 97 of Cr.P.C., the police officials along-with brother of the respondent, Babu Singh came to the residential house of the appellant and took her away on 15.9.1990. Thereafter, the respondent-wife filed an application under Section 125 Cr.P.C. for maintenance and on 16.9.1990 filed a complaint under Sections 498-A and 406 of IPC against the appellant-husband and his parents and sister. It was further alleged that since, 14.9.1990, the parties are living separately and consequently, on the ground of cruelty and desertion, the present divorce petition under Section 13 of the Act was filed by the appellant-husband seeking divorce.
4. The said divorce petition under Section 13 of the Act was contested by the respondent-wife and it was alleged in the reply that her in-laws' place, the behaviour of the appellant and his family members was very cruel against her and they harassed her for dowry. She was not given enough food and was not allowed to take bath even for one month or so, and she was not allowed to live normal life with her husband and cohabit with her. Therefore, being harassed in such manner, she was constrained to leave the matrimonial home and started living with her father. It was further stated that she belonging to "Rajpurohit" community and there is no custom of re-marriage or "Nata" marriage and she always tried to restore the normalcy in her matrimonial home and go back to matrimonial home but the appellant-husband had not cared to take her back in the matrimonial home and under these compelling circumstances, she had to launch the proceedings under Section 125 Cr.P.C. for seeking maintenance and also filed complaint under Sections 498-A and 406 of IPC. It was also stated that her "Stridhan" like gold ornaments weighing about 20-25 "Tolas" and clothes and silver articles with iron box were still lying with the appellant-husband and she has not voluntarily left her matrimonial home without reasonable cause. Therefore, no ground of desertion or cruelty for seeking divorce is made out. It was further alleged that she is still willing to go back to the matrimonial home. It was further stated that on the other hand, the appellant-husband and her relatives have caused cruelty upon her.
5. The learned court below after framing various issues and taking evidence by recording the statements of various witnesses, by the impugned judgment dated 3.6.2004 ultimately found that the appellant-husband under Section 13 of the Act had no ground for seeking divorce, namely, desertion and cruelty were not proved and, therefore, the divorce petition was liable to be
