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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Sudhanshu Dhulia, Narayan Singh Dhanik, JJ.
Mahesh Belwal - Appellant
Versus
Poonam Belwal - Respondent
First Appeal No. 100 of 2018
Decided On : 19-02-2020
Family Courts Act - Dissolution of Marriage - Section 13(1-A) - Section 23 - Hindu Marriage Act
Fact of the Case:
The appellant filed for dissolution of marriage under Section 13(1-A) of the Hindu Marriage Act, 1955, after the decree for restitution of conjugal rights was not complied with by the respondent. The Family Court dismissed the petition, citing the appellant's non-compliance with the decree as per Section 23(1)(a) of the Act.
Finding of the Court:
The court found that the appellant's non-compliance with the decree for restitution of conjugal rights did not amount to a 'wrong' under Section 23(1)(a) of the Act, and therefore, the decree of divorce was granted in favor of the appellant.
Issues: The main issue was whether the appellant's non-compliance with the decree for restitution of conjugal rights constituted a 'wrong' under Section 23(1)(a) of the Act, and if so, whether it would disentitle the appellant from seeking dissolution of marriage under Section 13(1-A).
Ratio Decidendi: The court held that the appellant's non-compliance did not amount to a 'wrong' under Section 23(1)(a) and granted the decree of divorce in favor of the appellant under Section 13(1-A) of the Act.
Final Decision: The appeal was allowed, and the judgment and order of the Family Court were set aside. The petition for dissolution of marriage under Section 13(1-A) of the Hindu Marriage Act, 1955, was decreed in favor of the appellant.
JUDGMENT
Sudhansu Dhulia, J. - This first appeal has been filed by the appellant under Section 19 of the Family Courts Act, 1984, against the judgment and order dated 15.05.2018 passed by the Family Court, Nainital in Case No. 310 of 2014, whereby the petition of the appellant for dissolution of his marriage has been dismissed.
2. The marriage of the appellant was solemnized as per the Hindu rites and ceremonies on 22.11.2009. At the relevant time, the present appellant was working as Assistant Librarian in a Degree College at Kashipur, District Udham Singh Nagar, Uttarakhand.
3. The case of the appellant is that while they were living as husband and wife in Haldwani, his wife i.e. respondent left her matrimonial house on 07.07.2010 on her free will and started living in her maternal house, which is also in the same town. Since then she has never returned.
4. The respondent (wife) later filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 (from hereinafter referred to as the "Act") before the Family Court, Nainital. The petition was contested by the appellant/husband and was ultimately decreed on 21.09.2013.
5. The appellant alleges that though the decree was passed under Section 9 of Act for restitution of conjugal rights in favour of the respondent on 21.09.2013 by the Family Court, yet the conjugal rights have not been restituted and she continues to live separately in her maternal house in Haldwani.
6. The case of the wife, on the other hand, is that she made every possible effort to live with her husband after the decree of restitution of conjugal rights was passed. She did not execute her decree for obvious and practical difficulties. A notice was sent by her through a lawyer on 09.06.2014 for compliance of the order of the Family Court, but in vain.
7. Meanwhile, on 21.11.2014, a petition for dissolution of marriage was filed by the present appellant under sub-section (1-A) of Section 13 of the Hindu Marriage Act. Sub-section (1-A) of Section 13 of the Act.
8. Sub-Section (1-A) of Section 13 of the Hindu Marriage Act reads as under:-
"13. Divorce.-
(1-A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties."
(Emphasis provided)
9. All the pleadings and evidences which were adduced before the Family Court were in order to prove that there has been no restitution of conjugal rights between the parties even after one year of the passing of the decree for restitution of conjugal rights in favour of the decree holder i.e. the wife, and therefore, now this is a ground for divorce and the marriage of the parties be dissolved on this ground alone.
10. The pleadings of the plaintiff/appellant, however, did not find favour with the Family Court and the Family Court was of the opinion that the benefit of his own wrong cannot be given to the plaintiff/appellant inasmuch as he did not comply with the decree of the restitution of conjugal rights. Having himself failed to obey the decree of the Family Court, he cannot be given the benefit of his own wrong. This view was apparently taken in terms of Section 23(1) (a) of Act.
11. Sub-Section (1) (a) of Section 23 of Act reads as under:-
"23. Decree in proceedings.- (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that-
(a) any of the grounds for granting relief exists and the petitioner except in cas
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