Smt. Savita vs Naresh Kumar

Adarsh Kumar Goel, J.—This order will dispose of both FAO No. 143-M of 1988 and FAO No. 144-M of 1988, as the question of law involved in these appeals is common.

The respondent-husband tiled petition for dissolution of marriage alleging that the marriage-between the parties took place on 9.5.1983 and a female child was born, aged about 2-1/2 years at the time of filing of the petition in the trial Court (in the year 1987). The child must be now about 17 years of age. It was further alleged that wife had gone to her parental home in the last week of May, 1986 to see her parents, but refused to return, which led the husband to file a petition u/s 9 of the Hindu Marriage Act, which was decreed on 18.11.1986, The wife contested the petition and submitted that she had resumed cohabilitation after the decree dated 18.11.1986 and that she was willing and ready to live with her husband.

The trial Court granted a decree for dissolution of marriage even after holding that the husband was not able to prove the allegation of cruelty. It was held that since the wife had not proved that there had been cohabitation after the decree for restitution of conjugal rights, the husband was entitled to have the marriage dissolved.

Counsel for the appellant argued that the findings of the trial Court holding that the wife did not resume cohabitation after the passing of the decree was erroneous and that the wife was ready and willing to join the husband, but the husband was neglecting the wife, as well as minor child was thus, taking advantage of his own wrong. It was also submitted that though vide order dated 10.10.1988, the respondent-husband restrained from re-marriage, he had married again and was having children.

The matter was referred to the Lok Adalat and vide order dated 18.10.2000, the Lok Adalat noted that the husband did not come to participate in the proceedings and even counsel for the husband had not put in appearance and counsel for the wife had made a statement that the husband had re-married.

After hearing counsel for the parties, 1 am of the view that the trial Court was not justified in dissolving the marriage. Since it was a case where the husband was taking the advantage of his own wrong and though the wife was willing to live with the husband, the husband had failed to look after the wife or the child. The child is now about 17 years female and nothing is shown on the record as to what efforts have been made by the husband to look after the child during all these years. No statement was forthcoming from the husbsnd that he was willing to keep the wife, while it was stated on behalf of the wife that she was willing to live with the husband. The wife and child cannot be left in lurch by the husband particularly when the allegation of cruelty levelled by the husband had not been proved. The petition for dissolution of marriage filed by the husband was liable to be dismissed. The trial Court has also not awarded any permanent alimony, but in view of dismissal of petition for dissolution of marriage filed by the husband, the application of the wife for permanent alimony is infructous.

For the above reasons, FAO No.143-M of 1988 is allowed and order of the trial Court grating decree for dissolution of marriage is set aside with costs quantified at Rs. 25,000/- and FAO No. 144-M of 1988 against refusal of permanent alimony is dismissed.