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1995 Supreme(P&H) 361
PUNJAB & HARYANA HIGH COURT
Sarojnei Saksena, J.
Gurdip Kaur
Versus
Sat Pal Singh
First Appeal from the Order No. 134 of 1989,
Decided On : MARCH 9, 1995
A spouse cannot be granted a divorce under Section 13(1-A)(i) of the Hindu Marriage Act, 1955, if they have resumed cohabitation after a decree of judicial separation, and the alleged cruelty and dowry demand occurred before the decree, thus not constituting an advantage taken by the spouse seeking divorce.
Headnote:
HINDU MARRIAGE ACT, 1955 - SECTION 13(1-A)(I) - DIVORCE - JUDICIAL SEPARATION - RESUMPTION OF COHABITATION - CRUELTY - DOWRY DEMAND - ADVANTAGE OF OWN WRONG - INTERPRETATION OF SECTION 23(1)(A) OF THE ACT.
Fact of the Case:
Wife appellant challenged the divorce decree granted to her husband respondent under Section 13(1-A)(i) of the Hindu Marriage Act, 1955, alleging cruelty, dowry demand, and resumption of cohabitation after judicial separation.
Finding of the Court:
The court found that the appellant failed to prove the resumption of cohabitation after the decree of judicial separation and that the alleged cruelty and dowry demand occurred before the decree, thus not constituting an advantage taken by the respondent.
Issues: 1. Whether the appellant proved the resumption of cohabitation after the decree of judicial separation? 2. Whether the respondent took advantage of his own wrong by filing for divorce under Section 13(1-A)(i) of the Act?
Ratio Decidendi: 1. The court held that the appellant's evidence regarding the resumption of cohabitation was disbelieved by the trial court, and there was no perverse or erroneous finding of fact to warrant interference by the appellate court. 2. The court interpreted Section 23(1)(a) of the Act and held that the alleged cruelty and dowry demand occurred before the decree of judicial separation, and thus the respondent did not take advantage of his own wrong.
Final Decision: The appeal was dismissed with costs.
Sarojnei Saksena, J.
1. Wife appellant has assailed the judgment and decree passed by Mr. H.S. Bakhshi, District Judge, Hoshiarpur on 17.4.1979 whereby he allowed petition filed by respondent Sat Pal under Section 13(1-A)(i) of the Hindu Marriage Act, 1955 (in short the Act).
2. Uncontroverted facts of the case are that the appellant was married to respondent on 4.3.1984 at Village Munak Kalan according to Hindu rites. She gave birth to a daughter who is residing with her. This marital tie could not last long in harmony. The appellant wife filed a petition under Section 10 of the Act for judicial separation in the Court of Additional Senior Sub-Judge, Dasuya on 6.5.1987. On 3.9.1987 decree was passed in that case. Respondent husband filed a petition under Section 13(1-A)(i) of the Act on 6.9.1988 alleging that after passing of the decree of judicial separation he and his wife have not resumed cohabitation and prayed that a decree of divorce be passed on that count.
3. Appellant wife contested the petition and alleged inter alia that the husband and members of his family demanded dowry. They treated her with cruelty thereby she was compelled to file a petition under Section 10 of the Act. Her petition was allowed by the Court, but thereafter on the intervention of respectable persons, their differences were patched up. In February, 1988 they started living together in village Korala. After some time again a dispute arose. The respondent wanted her to live in the matrimonial home. As she declined, their union again broke down. She was and is still ready to live with her husband.
4. In the replication, husband petitioner denied that in February, 1988 he lived with his wife and resumed co-habitation.
5. Parties adduced evidence. The Trial Court disbelieved the evidence adduced by the appellant respondent wife. The Trial Court held that after passing of the decree under Section 10 of the Act, the parties have not resumed cohabitation and thus the impugned decree was passed.
6. The appellants learned Counsel contended that the appellant wife has proved the circumstances which compelled her to leave her matrimonial home and to file a petition under Section 10 of the Act. The respondent-husband and members of his family treated her with cruelty. They demanded costly things in dowry which she was not in a position to provide. Under these circumstances, she was compelled to leave her matrimonial home and to file that petition. She has also proved that after the decree in February, 1988 they lived together for 15 days at village Korala and resumed co-habitation. The Trial Court has wrongly disbelieved her evidence. Lastly he contended that respondent husband cannot take advantage of his own wrong and ask for a decree of divorce under Section 13(1-A)(i) of the Act. To support these contentions he has relied on Ashok Kumar v. Smt. Shabnam Bhatnagar, 1989 (xii) M.L.J. 294) and H.M. Govil v. Smt. Sudha Govil, 1985 (VIII) M.L.J. 75.
7. The respondents learned Counsel refuted the above arguments and submitted that the appellant has utterly failed to prove that after passing of the decree under Section 10 of the Act, the parties resumed co-habitation and lived together for few days in February, 1988 at village Korala. The Trial Court has minutely scanned the parties evidence and has arrived at a correct conclusion. Appellate Court cannot set aside the findings of fact, it they are not perverse or erroneous.
8. He further argued that the appellant-wife has not proved any circumstance to show that the respondent husband is taking advantage of his own wrong. Neither any such fact is pleaded nor proved. Hence he supported the decree.
9. The parties have taken me to go through the evidence on record. The appellant wife has pleaded that in February, 1988 she lived with the respondent-husband at Village Korala and they resumed co-habitation. To prove this plea she has not only examined herself, but has also examined Gian Singh (RW-2) and Kisha
