@JUDGMENTTAG-ORDER
Dipak Misra, C.J.@mdashIn this appeal preferred u/s 19 of the Family Courts Act, 1984, the wife-appellant has called in question the justifiability of the order dated 18.2.2009 passed by the learned Principal Judge, Family Court, Darbhanga in Matrimonial Case No. 158 of 2008.
2. The husband filed an application for restitution of conjugal rights before the Family Court contending, inter alia, that the marriage between the petitioner and the opposite party therein was solemnized according to Hindu rites and customs on 29.4.2007. After Dwiragaman on 3.5.2007, the wife came to the matrimonial home. She stayed in the marital home for few days. The husband proceeded to Delhi where he was doing a job and the wife went to her parental home. On 14.11.2007, as set forth, the wife, on being requested, came to Delhi and lived with the husband but after few days pressurised him to go back to Danapur, home of her parents. The husband, as alleged, endeavoured to have the company of his wife at Delhi but she did not accede to the said request. Eventually, on 5.1.2008 she left the matrimonial home and came to live with her parents. All efforts to bring her back went in vain. Whenever the respondent-husband tried to bring her back to his home she misbehaved with him. It was further alleged that she was in the habit of demanding money for her maintenance and, on query being made in that regard, she used to abuse the entire family of the petitioner and threatened for divorce. In the aforesaid backdrop the prayer was made for restitution of conjugal rights or, in the alternative, for a decree of divorce.
3. After the application was filed, notices were issued by registered post and despite service of the same she chose not to appear. Thereafter the learned Family Judge directed for publication of notice in daily newspaper which was carried out but she chose not to contest. Ultimately, the Family Court proceeded for ex-parte hearing.
4. The respondent-husband, to prove his case, examined three witnesses including himself. It was deposed before the court below that the wife, opposite party therein, never cooperated in leading a happy conjugal life; that did not perform her duties towards the ailing old parents of the husband; there was no compatibility in the marriage, that she had threatened for divorce and the efforts made by the husband to sustain the marriage has become futile and that she had been living with her parents without any justifiable reason.
5. The learned Family Judge considering the material on record was satisfied that the husband deserved a decree for dissolution of marriage and accordingly so directed.
6. Being dissatisfied with the aforesaid order of the learned Family Judge the present appeal has been filed by the wife.
7. We have heard Mr. Devendra Prasad Singh, learned Counsel for the appellant and Mr. Durga Nand Jha, learned Counsel for the respondent.
8. Mr. Singh, learned Counsel appearing for the appellant has submitted that when the application was filed only for restitution of conjugal rights, therefore, the learned Family Judge could not have passed a decree for dissolution of marriage. It is urged by him that there is no evidence on record to pass a decree for divorce and, in fact, it has been passed on flimsy grounds which really do not justify the dissolution of marriage. It is his further submission that no proper finding has been recorded while passing the decree for divorce.
9. Mr. Jha, learned Counsel for the respondent supporting the order of the learned Family Judge has submitted that there is no bar to make an alternative prayer for divorce while submitting an application for restitution of conjugal rights and, therefore, the order passed by the court below is invulnerable. It is his contention that the wife chose not to appear in the proceeding despite service of notice and that eloquently speaks about her conduct. It is canvassed by learned Counsel that an opportunity should be given her to adduce evidence so that the controversy can be thrashed out from the proper perspective.
10. First we shall deal/with the issue whether a petition for restitution of conjugal right with an alternative prayer for divorce is maintainable. Learned Counsel for the respondent has commended us to the decision rendered in the case of Smt. Bhavna Adwani v. Manohar Adwani AIR 1992 Madhya Pradesh 105, wherein D.M. Dharmadhikari, J. (as his Lordship then was) has expressed the view as under:
14. The last submission made by the learned Counsel for the respondent now needs to be considered that there could be no joint petition, both for restitution and divorce. I do not find any legal prohibition under the provisions of the Act for filing a petition by a spouse for restitution or in the alternative, for a decree of divorce on the ground of desertion....
11. We respectfully concur with the said view and hence the first submission raised by the learned Counsel for the appellant deserves to be repelled and accordingly we do so.
12. The second limb of argument basically relates to lack of evidence for grant of divorce. Learned Counsel for the appellant would submit that apart from making bald statements that there was incompatibility and the wife had refused to come to the matrimonial home nothing has been stated by the witnesses.
13. On a perusal of the order passed by the learned Family Judge it is noticeable that he has granted the decree for divorce on the ground that the wife chose not to appear in the suit and, hence, that she is not desirous to resume the conjugal life. In our considered opinion, the learned Family Judge was under the legal obligation to record appropriate finding in law regard being had to grounds that find mention u/s 13(1) of the Hindu Marriage Act, 1955. True it is, the appellant-wife remained ex-parte but that would not absolve the husband to discharge the onus for making out a case for divorce which was the alternative prayer. That having not been done, we are inclined to set aside the order and direct the learned Family Judge to proceed afresh. To cut short delay, it is directed that the appellant and the respondent shall appear before the learned Family Judge on 8th March, 2010. Thereafter the learned Family Judge shall proceed afresh in accordance with law and shall be well advised to dispose of the application by the end of June, 2010.
14. The miscellaneous appeal is allowed to the extent indicated above. There shall be no order as to costs.
