Mange Ram vs Ramati

Adarsh Kumar Goel, J.—This appeal has been preferred by the Appellant-husband against the judgment and decree dated 13.10.1992 whereby his petition u/s 13 of the Hindu Marriage Act (for short the Act) for divorce was dismissed.

Marriage between the parties took place on 15.6.1984. No child was born out of the wedlock. Petition giving rise to this appeal was filed on 10.11.1990, inter alia, alleging that after the Muklawa ceremony in the year 1985, the Appellant came to know that the Respondent was a patient of schizophrenia and that a fraud was played upon him. The Appellant was shown Respondent's sister as the prospective wife, but instead of her, the Respondent was married to him. The Appellant came to know that the Respondent was of unsound mind, after the marriage. The Respondent obtained a decree dated 17.10.1989 for restitution of conjugal rights u/s 9 of the Act, but there was no cohabitation between the parties for a period of more than one year. The Respondent-wife contested the petition and denied that she was a patient of schizophrenia or that any fraud was played on the Appellant as alleged by him.

After considering the evidence, the trial court dismissed the petition holding that the Appellant had failed to prove that the Respondent was suffering from schizophrenia. As regards the decree u/s 9 of the Act granted in favour of the Respondent-wife, the Appellant was debarred from seeking divorce in view of the bar contained in Section 23(1)(a) of the Act. which provided that no person could take advantage of his own wrong. Aggrieved by the said judgment and decree of the trial court, this appeal has been preferred.

The matter was referred to the Lok Adalat u/s 20 of the Legal Services Authorities Act, 1987. The Lok Adalat observed, "it is clear that the parties are not interested in compromise." The matter was, therefore, sent back to this Court for decision on merits.

I have heard Learned Counsel for the parties and have perused the record.

Learned Counsel for the Appellant relied upon Smt. Bimla Devi Vs. Singh Raj, and Gurmeet Kaur Vs. Harbans Singh, , in support of his contention that a spouse failing to comply with the decree for restitution of conjugal rights, would be entitled to seek divorce. Counsel for the Appellant further relied upon Pawan Kumar Vs. Smt. Chanchal Kumari, and Gurcharan Singh alias Chhotta Singh v. Sukhdev Kaur, 1979 M.L.J. 232 for submitting that the marriage was totally broken and, therefore, should be dissolved. On the other hand, Learned Counsel for the Respondent has relied upon a decision of the Supreme Court in T. Srinivasan v. T. Varalakshmi judgment Today 1998(4) S.C. 312 and a judgment of Delhi High Court in Meera Bai Vs. Rajinder Kumar Sobti, , for contending that in view of the bar contained u/s 23(1)(a) of the Hindu Marriage Act, the Appellant-husband was disentitled to seek divorce, as rightly held by the trial court.

I am in agreement with the view taken by the trial court and I hold that the Appellant is debarred from seeking divorce in view of his own conduct. In view of the decision of three-judge Bench of the Supreme Court, the contention of the counsel for the Appellant that the Appellant could seek divorce, cannot be accepted.

As regards the contention that divorce should be granted on account of irretrievable break down, I am unable to agree with the counsel for the Appellant.

In view of the above, this appeal fails and is dismissed. There will be no order as to costs.