C.K. Prasad, J.@mdashHusband filed petition u/s 13 of the Hindu Marriage Act for dissolution of the marriage by decree of divorce. The Illrd Addl. District Judge, Bhopal by her judgment and decree dated 19th June, 1992 passed in Civil Suit No. 105-A/90 dismissed the petition. Aggrieved by the same, husband has preferred this appeal u/s 28 of the Hindu Marriage Act.
2. Admitted facts of the case are that appellant-husband married respondent- wife (hereinafter referred to as husband and wife respectively) on 23.5.1982 according to Hindu rites. The couple was blessed with a daughter on 6.8.1984 who is residing with the wife at Hoshangabad. Wife is staying with her father at Hoshangabad since February, 1984.
3. According to the husband after the marriage, their relationship was cordial and between 23.5.1982 to August, 1983 when he was posted at Sahgaon in the District of Khargone, he made efforts to keep his wife alongwith him but she declined to go. According to the husband, he used to visit Bhopal during holidays where his wife was staying and got himself transferred near Bhopal for the purpose of keeping her, with him. According to the husband between August, 1983 to March, 1984 he was posted at Udaipura but she was not ready to go there also. According to the husband between 23.5.1982 to 5.2.1984 his wife remained with his parents and they always looked after her needs and took care of her wishes.
4. According to the husband on 5.2.1984, on account of illness of her father, her brother came and took her to Hoshangabad. According to the husband, while going to Hoshangabad, she took all her jewellery and clothes and concealed the facts that she is pregnant, from his parents. According to the husband he and his parents wrote several letters and made attempts to bring her to the matrimonial home, but she did not come. Case of the husband further is that he took assistance of the wife''s uncle for bringing her to the matrimonial home but it did not succeed as the younger brother of the wife Mahesh and her younger sister Sukda did not permit her to go without written agreement. It is alleged that in this attempt husband''s father was ill-treated. According to the husband he sent his younger brother-in-law R.K. Pandey to bring his wife to the matrimonial home but he was also ill-treated and wife did not come to the matrimonial home. It is the assertion of the husband that many of his colleagues working in his office was sent to bring his wife to the matrimonial home, but she always insisted for execution of agreement. It is the specific stand of the husband that because of erratic behaviour of his wife, he did not go to bring her to the matrimonial home, but other persons were sent. According to the husband his wife has continuously deserted her from 5.2.1984 and caused mental cruelty and down graded their position in the society. It has been further stated that against their wishes, the wife delivered the child at Hoshangabad and because of official work he could not go to Hoshangabad and his parents being outside Bhopal, also did not go. This was taken ill of by the wife. She is a lady of cruel and suspicious nature. Her behaviour with his parents as also younger brothers was not good. According to the husband, it was his wife''s complaint that right from the date of marriage, she used to be ill, but was not provided medical attention. She also abused his parents. According to the husband the wife was not satisfied with the marriage and used to say that offers from good families have come. It is further stated that the wife wanted to do job as also wanted to practise legal profession, but neither he nor his family members liked the same. It is the assertion of the husband that custom and the practices of the family were not followed by her and she never used to do house-hold work stating that she has obtained the degree not for the purpose of doing house-hold work. According to the husband even after the notice, when the wife did not come, he filed Civil Suit No. 38-A/85whichhe withdrew on 29.6.1987 and thereafter presented the present petition. According to the plaintiff the aforesaid omissions and commissions of the wife amount to cruelty as also desertion which are grounds for dissolution of marriage by decree of divorce u/s 13(l)(i-a) and (i-b) of the Hindu Marriage Act (hereinafter referred to as the Act).
5. Wife, in her reply, denied the allegations made in the petition and she has stated that her husband never made any attempt to keep her at the place of his postings either at Sahgaon or Udaipura nor he ever kept her with him. Wife has denied the allegation of the husband that she refused to stay at Sahgaon or Udaipura. It has been further stated that in the earlier petition i.e. Civil Suit No. 33- A/85, no such allegation was made by the husband. According to the wife she came to Hoshangabad alongwith her brother knowing about the sickness of her father but did not take any jewellery or clothes alongwith her as alleged by the husband. She has further stated that her parents-in-law were aware of her pregnancy. 11 is the stand of the wife that neither her husband nor his parents have made any attempt to bring her to the matrimonial home. It is the assertion of the wife that her husband as also his parents were informed about the birth of the daughter, but none of them came to Hoshangabad, to enquire about the welfare of the daughter. Wife has further denied the assertion of the husband that his father had ever gone to her uncle''s place nor any of the colleague of the husband ever came to Hoshangabad to take her to her husband''s place. She has further denied the allegation of the husband that her behaviour is erratic or she is ill- mannered. According to the wife she had gone to her father''s place at Hoshan gabad, where she fell sick and the husband has assured her that he will come to Hoshangabad to take her, but he was misled by his parents and he did not come to Hoshangabad to take her to the matrimonial home. According to the wife, she is still waiting for her husband. She has denied the allegation of desertion made by the husband. It has been further stated that earlier the husband filed an application for dissolution of marriage which was rejected as pre-mature. It is the assertion of the wife that it is the husband who has deserted her. The wife has prayed mat she is entitled for restitution of conjugal right. By the impugned judgment and decree the Trial Court declined the relief for divorce but relief for restitution of conjugal right was granted.
6. Aggrieved by the aforesaid decree, husband has preferred this appeal u/s 28 of the Hindu Marriage Act. Mr. Ruprah appearing on behalf of the appellant submits that the finding recorded by the Trial Court that the wife did not desert the husband is erroneous on the basis of the evidence led in the case. In this connection, he has drawn my attention to the statement of the wife before the Magistrate in MCC No. 56/1988 pertaining to proceeding u/s 125 of the Cr. P.C. (Ex.P-15) wherein she has stated that she is prepared to live with her husband but does not wish to stay with her in-laws. This itself according to the learned Counsel establishes desertion. In support of the aforesaid submission Mr. Ruprah has relied on a Division Bench decision of this Court in the" case of Krishnabai v. Punamchand 1967 M.P.L.J. 446 :
"8. It is quite clear from the evidence on record that the appellant has not been able to prove that the father of the respondent had in any way mis-behaved with the appellant. This fact that the father-in-law used to drink and collect Goondas is also not substantiated. It is also equally clear that the appellant left the house on 2.3.1962 with the intention not to return. Now her offer that she would only live with her husband if he lives separately from his parents is an offer which is not conciliatory but hedged in with an unreasonable qualification or condition. It is to be borne in mind that the respondent is the only son of his parents. There is no ground shown whatsoever as to why he should live separately from his parents and this condition being an unreasonable one which is sought to be imposed not in good faith, and leaving the house on 2.3.1962 thus amounts to desertion within the meaning of Section 10 of the Hindu Marriage Act, and it was without a reasonable cause or consent of her husband."
7. P.W.I Arun Kumar Tiwari, the husband in his deposition has stated that when he sent his brother-in-law to Hoshangabad to bring his wife to the matrimonial home she has stated that she is prepared to go in case the husband executes an agreement that the parents of the husband shall not stay with them. P.W. 2 Shailendra Bhusan Shrivastava is the Clerk in the Block Office where the husband was posted as Panchayat Inspector. He has stated in his deposition that he went to the Sasural (in-laws place) of the husband and conveyed the message of the husband that he was sent with the Zeep, to take her to her husband''s place. At this the wife stated that she is prepared to go on the condition that she will not go to Bhopal and her husband snape his relationship with his parents. It may be stated here that husband''s parents are residing at Bhopal. This witness has further stated that in case the husband himself comes personally and agrees to record the aforesaid terms on the stamp papers, she will go. After this, the wife did not go alongwith this witness. P.W. 3 B.K. Pandey has stated in his evidence that he went to bring her to the matrimonial home, but she stated that she is prepared to stay with her husband in case he accepts her conditions. Conditions as narrated to this witness were that she will always stay with her husband wherever she is posted, she will not go to her in-laws place and because she is educated, she will not do house-hold work, but do job. According to this witness she has stated that she will get all these conditions recorded in stamp paper and only thereafter, she will go. However, P.W. 2 S afalta Tiwari, the wife in her evidence has denied that any of her husband''s relation or colleagues ever came to Hoshangabad to take her to the matrimonial home. In her evidence she has stated that her husband has taken leave to come to Hoshangabad and in fact came up toObedullaganj, where he stated to her brother Mahesh, that first permission for his visit to Hoshangabad may be taken from his father. This witness has further stated that alongwith Mahesh her elder brother Girja Shankar was also there and both the brothers alongwith husband, went to Bhopal and met her father-in-law to seek permission, but he became angry and stated that how did they dare to go to his son''s place of posting at Udaipura directly. The father-in-law of the wife is alleged to have stated that neither he nor his son will go to Hoshangabad, therefore, the husband did not go to Hoshangabad, and both the brothers came back. Nothing has been elicited from these witnesses or the cross-examination to discredit mis part of the evidence.
8. In the background of the fact that the husband''s visit to her wife''s place a t Hoshangabad after the birth of the child was stalled by his father, the wife putting the condition that he will not stay with her parents-in-law, in the circumstance, may not be totally justified, but can''t be said to be wholly justified. In the case of Krishna Bai (supra) relied on by Mr. Ruprah, there was nothing on the record to show that the father-in-law in any way mis-behaved with the wife. In the present case as stated earlier, the wife getting sore on account of aforesaid conduct of the father-in-law as also what has been narrated in paragraph 13 cannot be said to be totally unjustified. Accordingly the authority relied on by the learned Counsel is clearly distinguishable. On the facts of the present case it cannot be said mat the wife deserted the husband.
9. Mr. Ruprah, then contends that the wife having concealed the factum of pregnancy, while leaving Hoshangabad to her husband and his parents, clearly show an act of mental cruelty. However, the wife in her statement has denied this allegation. Further allegation of cruelty according to the husband is indisciplined behaviour of his wife with his parents, her statement that she always got better offers for marriage and she is not happy with the marriage. Act of the wife expressing her desire for doing job or to practise law and not conforming with the practice expected of married women i.e. use of Sindoor etc. and not doing any house-hold work, according to the husband, amounted to cruelty. Further ground to establish cruelty on the part of the wife, as alleged by the husband is refusal on the part of the wife to go alongwith him at the place of his work.
10. As regards the allegation of refusal of wife to go at the place of work of the husband, the same does not find support, even from the husband''s own statement. Although in paragraph 4 of his evidence, this witness has stated that his father went to the uncle''s place of the wife and requested for sending her but he was abused by his wife''s sister and younger brother and did not agree to send the wife. However, in paragraph 15 of the statement, he has admitted that he never went to Hoshangabad to pick up his wife. It has never been the case of the husband that he or his family members excepting his brother-in-law ever went to bring the wife to the matrimonial home from Hoshangabad. It is relevant here to state that the wife had gone to Hoshangabad on hearing the sickness of her father and according to the husband''s own admission he never went to Hoshangabad. It is the specific statement of the husband that as his wife used to remain sick, her treatment was not possible at Sahgaon or Udaipura. This witness has further admitted that he never took his wife to his place of posting and he desired that his wife should stay with his family to enable her to mix with them as also on the ground that he was busy with the Panchayat election and he was not getting leave. He has further stated that it was in July, 194 he got Govt. accommodation at Udaipura and before that he used to stay with his friend and as his monthly salary was Rs. 600/- only, he did not had the sufficient fund to rent an accommodation. In the background of this, stand of the husband that the wife refused to go at the place of his posting cannot be accepted.
11. Another ground urged to substantiate cruelty by the wife is non- disclosure to the husband and his family members the factum of pregnancy. It is relevant here to state that the wife came to her father''s place on 5.2.1984 and on 11.2.1984, (Ex.P-4) she wrote a letter to her husband stating therein that she got herself examined by the Doctor on 6th February, 1984 and the Doctor opined that she is not suffering from leucaria, but has 2 months'' pregnancy. The content of this letter shows that the wife was under the impression that she was suffering from leucaria and only after she was examined by the Doctor and she was told that she is pregnant, she wrote the letter to her husband. In the background aforesaid it cannot be said that the wife concealed the factum of pregnancy. In my opinion, this does not substantiate the case of cruelty as alleged by the husband.
12. Now, I advert to the allegation of the husband about the indisciplined behaviour of his wife. It is worth mentioning here that the husband in his deposition has stated that he did not had any quarrel with his wife excepting once and that is, while returning to his duty, he was taking certain articles, the same was objected by the family members and at this the wife stated as to why he is inviting humiliation ? In relationship of husband and wife, this stray incident does not come within the expression of cruelty. As regards the allegation of the wife being cruel to the family members of the husband, P.W. 4 the younger brother of the husband, has stated that whenever she used to stay at Bhopal, her behaviour was not good and she used to say that she was married in a wrong family. This witness has further stated that she used to say that she will not cook food and used to do house-hold work without any interest. Ex. P-2 is a letter written by the husband to the wife and a close reading of the same shows that the wife was feeling suffocated at her in-laws place because of the behaviour of the family members and in the context aforesaid the statement that she was married to a wrong place does not lead to cruelty. It is the admission of the husband that the wife remained sick and the standard of work which is expected from a normal person cannot be expected from a sick lady. Accordingly, I am of the opinion mat the assertion made by the husband that the wife used to misbehave with the family members does not seem to be correct.
13. P.W. 6, K.L. Tiwari, the father of the husband has stated in his evidence that after the marriage a news was published in the newspaper Nav Bharat about commission of suicide by a youth and the wife went on fast. However, this irresponsible statement made by the father of the husband has not been substan- tiated by any material. The newspaper in which the news was published has not been produced nor this part of the story has been supported by any of the witness examined by the husband. This statement was made by the husband''s father to link the dead youth with the wife which being palpably false shows the state of mind of the husband''s father. In the background of the aforesaid conduct of the husband''s father the behaviour of the wife about which reference has been made in the preceding paragraph cannot be said to be cruel.
14. It is relevant here to state that before this Court the wife has filed an application, what she terms to be subsequent facts pertaining to the conduct of the appellant". In the said application it has been stated that the husband married a second lady namely Priti Saxena who died on 15.3.1997, in the stampede at Mahakal temple at Ujjain. In support of the aforesaid assertion the wife has placed on record certain documents. This assertion of the wife has been denied by the husband in reply. It is relevan there to state that in the present case the husband has sought for dissolution of marriage by a decree of divorce on the ground of desertion and cruelty whereas, the wife has sought for restitution of conjugal right. In fact, the decree for restitution of conjugal right has been granted by the Trial Court. In the background aforesaid, I am of the opinion that there is no necessity of adjudication on the aforesaid allegation of the wife, which has been denied by the respondent.
15. Additional ground urged by the husband in the present appeal for dissolution of marriage is non-restitution of conjugal right fora period of one year after the decree. It is stated that a decree for restitution of conjugal rights was granted on 19.6.1992 and till date, no restitution of conjugal rights having taken place, the husband is entitled for a decree of divorce u/s 13(l-A)(ii) of the Hindu Marriage Act. It is further con tended that the marriage having irretrievably broken down for long span of about 15 years, this is a fit case in which marriage be dissolved by a decree of divorce.
16. Mr. Ruprah in support of his submission has placed reliance on a decision of a Division Bench of the Andhra Pradesh High Court in the case of
"To take such a view of Section 13(1-A) is to introduce into that section a number of mischiefs which the Parliament did not contemplate. Therefore, though the husband, who obtained the decree for judicial separation might be morally wrong in not resuming cohabitation still the law entitled him to resist the attempt of his wife to resume cohabitation. Therefore, in any view of the matter the husband was entitled to decree for divorce inasmuch as there was no resumption of cohabitation by volition of both the parties within two years after the decree for judicial separation was passed. The learned Judge, was therefore, justified in passing the decree for divorce and we uphold it."
It is to be borne in mind that in the case referred to above in an earlier proceeding the decree for judicial separation was passed and after a lapse of two years, a separate proceeding was brought for the dissolution of marriage. In the present case, this is not the situation. The decree of restitution of conjugal right passed by the Trial Court is a subject matter of this appeal and in that view of the ma tter, the authority relied on by the learned Counsel is clearly distinguishable. On facts also I find that after the decree for restitution of conjugal rights was passed, the wife initiated proceeding for its execution and when the appeal was presented before this Court, the same was not pursued. In the facts of the present case, therefore, I am of the opinion that the husband is not entitled for decree for dissolution of marriage on the ground that there had been no restitution of conjugal rights after the marriage for a period of one year.
17. To put the record straight Mr. Ruprah has contended that although decree for restitution of conjugal right has been obtained by the wife and notwithstanding the fact that the husband did not comply with the decree, still he can urge for dissolution of marriage on the ground of non-restitution of conjugal rights and the principle underlying Section 23(1-A) of the Hindu Marriage Act, that is to say, that the party in any way should not take advantage of his own wrong or disability for the purpose of such relief, does not come into play. In support of the aforesaid submission, learned Counsel has placed reliance on a large number of authorities. However, in the background of the facts of the present case that the decree of restitution of conjugal rights is a subject matter of the present appeal as also the wife taking steps for execution of decree of restitution of conjugal rights, the husband is not entitled for dissolution of marriage on the ground as enumerated u/s 13(l-A)(ii) of the Act. It cannot be lost sight of the fact that a period of more than one year has elapsed on account of systemic delay because of pendency of the appeal. Accordingly, I negative this submission of the learned Counsel for the husband.
18. Another ground, strenuously pressed by Mr. Ruprah, for dissolution of the marriage is its irretrievable breakdown. He submits that marriage is union of two souls and the husband and wife being away from each other for the last 15 years, inspite of the decree for restitution of conjugal rights, denying the decree for dissolution of marriage will lead to bringing only fleshes together, which should be avoided. In support of his submission learned Counsel has placed reliance on a judgment of the Supreme Court in the case of Romesh Chander v. Savitri AIR 1995 SC 851, and my attention has been drawn to the following paragraph of the said judgment, which reads as follows :
"3. In V. Bhagat v. D. Bhagat (Mrs.) AIR 1994 SCW 45, this Court has explained the concept of cruelty both mental and physical which could entitle an applicant to claim divorce u/s 13(l)(i-a) of the Hindu Marriage Act, 1955. In
"4. Considering the facts and circumstances of this case, we in exercise of power under Article 142 of the Constitution of India, direct that the marriage between appellant and the respondent shall stand dissolved subject to the appellant transferring the house in the name of his wife. The house shall be transferred within four months from today. The dissolu- tion shall come into effect from the date the house is transferred and possession is handed over to the respondent."
19 Yet another decision on which learned Counsel has placed reliance is a judgment of the Supreme Court in the case of
"20. It is abundantly clear that the marriage between the parties has broken down irretrievably and there is no chance of their coming together, or living together again. Having regard to the peculiar features of this case, we are of the opinion that the marriage between the parties should be dissolved u/s 13(l)(i-a) of Hindu Marriage Act and we do so accordingly. Having regard to the peculiar facts and circumstances of this case and its progress over the last eight years - detailed hereinbefore - we are of the opinion that it is a fit case for cutting across the procedural objections to give a quietus to the matter."
It is relevant there to state that in the case of Romesh Chandra (supra), the Supreme Court placed reliance on its earlier judgment in the case of D. Bhagat(supra). In the case of D. Bhagat, the Supreme Court came to the conclusion, "that she (wife) wants to live with the petitioner (husband.) The obvious conclusion is that she has resolved to live in agony only to make life a miserable hell for the petitioner as well. This type of callous attitude in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the petitioner with mental cruelty". After holding so, the Supreme Court found that the marriage between the parties has broken down irretrievably and conse- quently dissolved the marriage. However, before doing so, the Apex Court made it clear that irretrievable breakdown of marriage is not a ground for dissolution of marriage itself. In the said case, it has been held as follows :
"21. Before parting with this case, we think it necessary to append a clarification. Merely because there are allegations and counter-allegations a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself aground. There must be really some extra- ordinary features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretrievable breakdown of the marriage is not a ground by itself. But while scrutinising the evidence on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the Court finds it in the interest of both the parties."
20. In Romesh Chandra (supra), the Apex Court exercised its power under Article 142 of the Constitution of India. Without going into the question as to whether the High Court possesses power akin to Article 142 of the Constitution, 1 am of the opinion that in the present case, the peculiar factors existing in the cases of Romesh Chandra and D. Bhagat do not exist. Here in the present case, the husband seeks to take advantage of delay in disposal of the divorce proceeding which unfortunately occurs on account of systemic delay. Therefore, I am of the considered opinion that the authorities relied on by the learned Counsel for the appellant are clearly distinguishable on fact and it is not a fit case on which the marriage deserves to be dissolved on the ground of purported irretrievable breakdown.
21. Before I part, I would like to observe that it is widely believed that marriages are settled in heaven. The facts of the present case clearly show that it has been broken on earth. A little understanding on part of the husband and wife could have saved this marriage. Wife is Sore that her husband or her in-laws did not come even after the birth of the child. The father of the husband also exhibited lack of responsibility and in fact went to the extent to maligning his own daughter- in-law. I am of the opinion that had he acted with some decree of responsibility, the marriage would not have come to rocks. The wife could and should have taken more positive approach, which is expected in an Indian society for continuance of the marriage, which she also did not do. This observation is made with a view to enlighten the husband and the wife to ponder over the matter and make effort to settle the things right. It is not too late.
22. Having negatived all the submissions made on behalf of Mr. Ruprah, appearing on behalf of the husband, I do not find any merit in the appeal and it is dismissed accordingly with cost. Counsel fee assessed at Rs. 2,000/-. While working out the cost, the amount already paid under the heading litigation expenses shall be deducted.
