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2012 Supreme(MP) 552
IN THE HIGH OF MADHYA PRADESH
S.K. Gangele and G.D. Saxena, JJ.
Bharti Mourya (Smt.) v. Sudhir Bahadur Mourya
First Appeals No.309 of 2009 and 311 of 2009 (Gwalior) : against the judgment and decree of Family Court, Gwalior, passed in
Case No.11-A of 2007;
Decided on 19.10.2012.
Ashok Khedkar for appellant;
D.K. Katare with Arun Katare for respondent.
Headnote:(1) Hindu Marriage Act, 1955 -- Ss.5(ii)(b), 9, 10(1), 12(1)(b) and 13 -- husband and wife living separately for a long time -- possibility of union rare -- decree of restitution of conjugal rights not fruitful -- decree of divorce on the ground of desertion can also not be granted -- however, decree for judicial separation on aforesaid ground granted considering the facts of case.
Held : Where a wife is compelled to leave her matrimonial house on imputation that she is unable to procreate a child and husband did not make an effort for return of his wife back to her matrimonial house in that case before passing a decree for restitution of conjugal rights between the parties, the Court must satisfy itself beyond reasonable doubts that the respondent-husband has without reasonable excuse withdrawn from the society of his wife. In that view of the matter, if a decree of conjugal rights is passed in favour of the appellant, where due to differences between the parties on account of non-procreation of children are so grave that the union of the parties does not seem possible, the Court has to consider the matter in its entirety.
In this context, we affirm the judgment of the trial/Family Court. The appeal filed by the appellant for grant of decree for conjugal rights under section 9 of the Act is dismissed. Simultaneously, the appeal filed by respondent-husband for annulment of marriage under section 12(1)(b) read with section 5(ii)(b) of the Act by seeking a decree of divorce on the ground of desertion under section 13(1)(ib) of the Act is also dismissed. However, considering the background facts of the case, a decree for judicial separation on the ground of desertion enumerated in section 10(1) of the Act, as an alternative relief, which provided in section 13A of the Act is granted. 1991 JLJ 607 relied on. AIR 2004 SC 5111, AIR 2001 SC 2110 and AIR 1995 SC 2170 followed.
(2) Divorce Act, 1869 -- Ss.18 and 19 -- impotency not ground for divorce but ground for nullity of marriage. AIR 1970 SC 137 followed. [Paras 22 to 25
¼1½ fganw fookg vf/kfu;e] 1955 && /kkjk 5¼2½¼[k½] 9] 10¼1½] 12¼1½¼[k½ rFkk 13 && ifr rFkk iRuh yacs le; ls i`Fkd~ jg jgs && mudk ,d gksuk dfBu && nkaiR; vf/kdkjksa ds izR;kLFkkiu dh fMdzh ykHkizn ugha && vf/kR;tu ds vk/kkj ij fookg&foPNsn dh fMdzh Hkh iznRr ugha dh tk ldrh && rFkkfi] ekeys ds rF;ksa ij fopkj djrs gq, iwoksZDr vk/kkj ij U;kf;d i`FkDdj.k ds fy;s fMdzh iznRrA
vfHkfu/kkZfjr % tgk¡ iRuh dks ;g yk¡Nu yxkdj mldks llqjky NksM+us ds fy;s foo’k fd;k x;k fd og larku mRiUu djus esa vleFkZ gS rFkk ifr us viuh iRuh dks mlds llqjky okil ykus ds fy;s iz;Ru ugha fd,] ml ekeys esa i{kdkjksa ds e/; nkaiR; vf/kdkjksa ds izR;kLFkkiu ds fy;s fMdzh ikfjr djrs le;] U;k;ky; dks Lo;a dk ;qfDr;qDr lansgksa ds ijs ;g lek/kku djuk pkfg, fd izR;FkhZ𝔦 fcuk ;qfDr;qDr dkj.k ds viuh iRuh ds lkFk ls nwj gqvk gSA ekeys ds bl n`f”Vdks.k ls] ;fn vihykFkhZ ds i{k esa nkaiR; vf/kdkjksa dh fMdzh ikfjr dh tkrh gS] tgk¡ larkuksa dks tUe u nsus ds dkj.k i{kdkjksa ds e/; erHksn brus xaHkhj gSa fd i{kdkjksa ds e/; ,d gksuk laHko izrhr ugha gksrk gS] ogk¡ U;k;ky; dks ekeys dh lexzrk esa fopkj djuk gksxkA
bl lanHkZ esa] ge fopkj.k@dqVqac U;k;ky; dk fu.kZ; vfHkiq”V djrs gSA vihykFkhZ }kjk vf/kfu;e dh /kkjk 9 ds v/khu nkaiR; vf/kdkjksa ds fy;s fMdzh iznku djus gsrq izLrqr vihy [kkfjt dh tkrh gSA lkFk gh] izR;FkhZ𝔦 }kjk vf/kfu;e dh /kkjk 13¼1½¼1[k½ ds v/khu vf/kR;tu ds vk/kkj ij fookg&foPNsn dh fMdzh pkgrs gq, vf/kfu;e dh /kkjk 12¼1½¼[k½ lgifBr /kkjk 5¼2½¼[k½ ds v/khu fookg ds ckfrydj.k dsfy;s izLrqr vihy Hkh [kkfjt dh tkrh gSA rFkkfi] ekeys dh i`”BHkwfe ds rF;ksa ij fopkj djrs gq,] oSdfYid vuqrks”k ds :i esa] vf/kfu;e dh /kkjk 10¼1½ esa izxf.kr vf/kR;tu ds vk/kkj ij U;kf;d i`FkDdj.k ds fy;s fMdzh iznku dh tkrh gS] tks vf/kfu;e dh /kkjk 13d esa micaf/kr gSA 1991 ts ,y ts 607 voyafcrA , vkb vkj 2004 ,l lh 511] , vkb vkj 2001 ,l lh 2110 rFkk , vkb vkj 1995 ,l lh 2170 vuqlfjrA
¼2½ fookg&foPNsn vf/kfu;e] 1869 && /kkjk 18 rFkk 19 && uiqaldrk fookg&foPNsn dk ugha ijarq fookg dh vd`rrk dk vk/kkjA , vkb vkj 1970 ,l lh 137 vuqlfjrA ¼iSjk 22 ls 25½
Saxena, J. -- 1. Since the judgment challenged in these two appeals is one and the same, both the appeals are taken up together for final disposal by this common and one judgment.
2. Both the appeals are filed against vise versa by the parties, having been aggrieved by a judgment and decree dated 29th September, 2009 given in Case No.11-A/07 (HMA), by the Principal Judge of the Family Court, Gwalior, dismissing claimof the wife preferred under section 9 of the Act for restitution of her conjugal rights vis-a-vis counter claim preferred by the husband on other side for dissolution of marriage under section 13 of the Act.
3. The facts leading to the present case may be summarised as under :
The marriage between the appellant Smt. Bharti and respondent-Sudhir was solemnized on 5th May 1992 as per Hindu rites and customs. It is alleged that the respondent-husband Sudhir expelled his wife Smt. Bharti from his house on the part of her failure to bring dowry. Despite repeated efforts from her side, respondent-husband did not permit her to live with him. On the contrary, he decided to file a petition under section 13 of the Act for taking divorce, which was dismissed by the trial Court vide judgment dated 15.10.2001 against which an appeal (F.A. No.234/01) was preferred. Same was dismissed by this Court vide judgment dated 25th November 2005 by this Court, holding that the respondent-husband failed to make out a case with valid and legal reasons for dissertation of his wife. The appellant (wife of respondent), by submitting a petition under section 9 of the Act, now, in turn, prayed for restitution of conjugal rights before the trial Court.
4. By filing written statement, respondent-defendant denied all the allegations contained in the petition. In counter-claim, appellant asserted that in year 1997 after the matrimonial disputes arising between the couple, the respondent-husband filed a petition for divorce and Civil Suit No.31-A/1997 was registered. During pendency of the case on 26th May 1997, the parties entered into compromise and consented to live with each other. Subsequently, thereafter the defendant filed another petition under section 13 of the Act for divorce which was registered as Civil Suit No.191-A/2000, on the ground of cruelty against his wife, but the prayer for divorce was disallowed. Against the said judgment and decree, he preferred an appeal (First Appeal No.234/2001) which too, was dismissed by the judgment and decree dated 25th November 2005 of this Court. After two years of dismissal of the petition of divorce filed by the respondent-husband, the present petition under section 9 of the Act for restitution of conjugal rights was filed by the appellant-wife. The defendant by filing counter-claim submitted that the appellant was unable to procreate a child and was suffering from some bodied disabilities which proved the fact, therefore, it was prayed that under the provisions contained in section 5(ii)(b) and in section 12(1)(b) of the Act, a decree for dissolution/nullification of marriage may be passed in his favour.
5. In reply to the counter-claim filed by the respondent-husband, the appellant-wife denied all allegations, as mentioned. She submitted that the parties to the case (Civil Case No.31-A/1997) entered into compromise and pursuant thereto she went with her husband and started residing with him. She stated that she and her husband made sincere efforts for birth of a child and her husband also caused her treatment but despite all efforts, she could not procreate a child. So, her husband, at the instigation of her mother started maltreating her and ultimately on 8th August 2000 she was expelled of her matrimonial house. She stated that she is ready and willing to reside with her husband and perform her conjugal duties. Therefore, she prayed to dismiss the counter-claim preferred by her husband and to pass a decree of restitution of conjugal rights in her favour.
6. The learned trial Judge on the plead
