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BOMBAY HIGH COURT
B.P. Dharmadhikari and A.S. Chandurkar, JJ.
Uttara Praveen Thool —Appellant
versus
Praveen s/o Bhanudas Thool —Respondent
First Appeal No. 308 of 1998
Decided on 6.1.2014
Counsel for the Parties:
For the Appellant:Mrs. V. Thakre, Advocate.
For the Responent:Mrs. R.S. Sirpurkar, Advocate.
IMPORTANT POINT
There is no legal bar to make prayer for grant of divorce in proceedings for restitution of conjugal rights.
Headnote:(A) Hindu Marriage Act, 1955—Section 13—Civil Procedure Code, 1908—Section 99—Divorce—Though initially petition was filed under Section 9 of the Act for restitution of conjugal rights, no issue in that regard was framed—No decree can be reversed or substantially varied on account of any defect or irregularity in any proceedings not affecting merits of case of jurisdiction of Court—Though failure to frame a issue that arises on the basis of pleadings of rival parties would amount to an error being committed by Trial Court, that by itself will not be a ground to reverse impugned judgment—During pendency of proceedings, respondent had made another prayer seeking grant of divorce on ground of desertion—Such prayer was permitted to be added—Since parties have contested proceedings with regard to prayer for grant of divorce, mere failure on part of Judge of Family Court in framing issue as regards restitution of conjugal rights would not have result of vitiating impugned judgment. (Para 9)
(B) Hindu Marriage Act, 1955—Sections 9 and 13—Restitution of conjugal rights—There is no legal bar to make prayer for grant of divorce in proceedings for restitution of conjugal rights—Though petitioner in a given case may seek restitution of conjugal rights initially, on account of conduct of other side, such petitioner could urge that other relief of divorce on the ground of desertion could be granted—If in law separate proceedings for such a relief could be filed, there is no reason not to permit a party from seeking such reliefs in same proceedings— Wife cannot object to such prayers as mutually destructive prayers—She cannot be heard to say that she will not cohabit and will not permit husband to pray for dissolution of marriage—Ultimately, even for succeeding in grant of such relief, it would be necessary for such party to prove the claim made therein. (Paras 11 and 13)
(C) Civil Procedure Code, 1908—Order 6 Rule 17—Hindu Marriage Act, 1955—Sections 9 and 13—Amendment of matrimonial application—There is no principle that husband, having failed to secure relief of restitution, can thereafter, never, file proceedings for divorce on available grounds—Non-execution of decree for restitution of conjugal rights may also lead to grant of divorce—Concept like changing nature of suit etc. may be inherently foreign to and not applicable in matrimonial matters. (Para 12)
(D) Hindu Marriage Act, 1955—Section 13—Divorce—Grounds—Irretrievable breakdown of marriage is not a ground envisaged by Section 13 for grant of divorce—Separation of parties for a long period of time without any justifiable cause amounting to desertion could be a ground for passing a decree of divorce under Section 13(1)(ib)—It would not be appropriate to apply any submission of irretrievably broken marriage as a strait jacket formula for grant of divorce—Mere submission that marriage has irretrievably broken down cannot lead Court to pass decree for divorce without examining if any ground for divorce has been made out or not. (Para 15)
(E) Hindu Marriage Act, 1955—Section 23—Cruelty—Condonation—To constitute condonation in terms of Section 23(1)(b), there must be forgiveness and restoration—Bilateral acts of both parties will be required to be taken into account while considering aspect of condonation—Forgiveness and restoration cannot be unilateral and for it to be effective and fruitful, it has to be bilateral. (Para 22)
Result: Appeal dismissed.
A.S. Chandurkar, J.—The appellant wife has preferred the present appeal under Section 19 of the Family Courts Act 1984 being aggrieved by the judgment dated 8.6.1998 passed by the learned Judge, Family Court, Nagpur whereby the petition filed by the respondent husband for grant of divorce has been allowed. Herein after the wife will be referred to as the appellant and the husband will be referred to as the respondent.
2. The marriage between the parties was solemnized on 2.12.1992. Out of said wedlock, the appellant gave birth to a son on 27.8.1993. According to the respondent, after the birth of said child the appellant did not return to her matrimonial home for no justifiable reason. Hence, on 22.12.1994, the respondent preferred Hindu Marriage Petition under Section 9 of the Hindu Marriage Act 1955 (hereinafter refer to as the said Act) bearing No.364 of 1994 for restitution of conjugal rights. During pendency of said proceedings, the respondent amended his pleadings and in the alternate sought a decree for divorce on the ground of mental cruelty on the basis of desertion by the appellant. The parties went to trial and on the basis of the material on record, the Family Court, Nagpur by judgment dated 8.6.1998 was pleased to allow the petition filed by the respondent and thereby passed a decree of divorce on the ground of cruelty.
3. Before considering the challenge to the aforesaid decree, it would be necessary to note the rival pleadings of the parties and also the other material on record on the basis of which the impugned decree has been passed. In the petition filed under Section 9 of the said Act, it was pleaded by the respondent that from the second month of the marriage itself, the appellant was requesting for grant of divorce. It was stated that the appellant disliked the idea of a joint family and hence, the respondent started living separately from his mother and brother. It is further pleaded that after the birth of their son on 27.8.1993, the appellant’s father took her to their native place and since then for no justifiable reason, the appellant had deprived the respondent of her company and had failed to fulfill her obligation as wife. It was further pleaded that on 23.12.1993, the appellant along with her father, her uncle and few other persons came in a Jeep to the respondent’s place. After some talks, the appellant’s father informed the respondent that it was not possible for the appellant to live with the respondent. Despite efforts through mediators, the appellant did not return to the matrimonial home and hence, on 22.12.1994 aforesaid petition seeking restitution of conjugal rights was filed by the respondent.
4. The appellant filed her written statement below Ex.14. She denied the averments made in the petition filed by the respondent. According to the appellant, the respondent used to treat her cruelly and keep her without food for 2 to 3 days. The respondent used to beat her and abuse her. It was further pleaded that in July, 1993, the respondent had called the appellant’s mother and had demanded Rs.4,000 from her and threatened that if said demand was not met, the mother should take back her daughter. It is stated that on 17/18.8.l993, despite intervention of Panchas, the respondent did not listen to them due to which the appellant was forced to return to her father’s home. Despite a message being given about the birth of a child, the respondent did not accept the sweets that were sent in that regard. The respondent did not attend the ceremony that was held for naming the child. Ultimately, on 23.12.1993 though the appellant had returned to the respondent’s house along with their child, the appellant was not permitted to enter the house in the presence of various persons. It was further pleaded that on 2.3.1994, the appellant had filed proceedings for grant of maintenance under Section 125 of the Code of Criminal Procedure and with a view to defeat the appellant’s right, the present proceedi
