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Judgment
Heard learned counsel for the parties.Â
Present appeal is preferred by the aggrieved wife (respondent in Original Suit (M.T.S.) No. 34 of 2009) against the judgment and decree dated
5.4.2016 passed by the learned Court of Principal Judge, Family Court, Ranchi in Original Suit (MTS) No. 34 of 2009 U/s. 13 (1-A) (ii) of the Hindu
Marriage Act, 1955, by which marriage between the parties was dissolved. The Suit was instituted by the petitioner-husband/respondent herein
invoking the provisions of Section 13(1-A)(ii) of the Hindu Marriage Act, 1955, on the sole ground that despite a decree for restitution of conjugal
rights in his favour passed in Matrimonial Case No. 501 of 1999, the respondent-wife did not join the society of the husband and resume cohabitation.
The relevant necessary facts as pleaded by the parties in the said suit are being referred to hereinafter in brief. Â
As per case of the petitioner-husband, after solemnization of their marriage on 28.6.1986 as per Hindu rites and customs at Jaipur, they lived
together as husband and wife at Indore. Twin sons were born out of the wedlock on 10.1.1988 who are living with the petitioner- husband all along.
Since 1991, the respondent-wife left the matrimonial house to live with her parents without any proper reason. She has got maintenance u/s 125 of the
Code of Criminal Procedure at the rate of Rs. 500/- per month (now enhanced to Rs. 5000/- per month). She had filed a criminal case u/s 498-A and
section 307 of the Indian Penal Code against the husband in the year 1991 at Sadar Bazar Police Station, Indore. The petitioner-husband had been
acquitted by the learned Court of Additional Sessions Judge-Indore in a hotly contested trial and the Hon’ble Madhya Pradesh High Court had
also affirmed the judgment of acquittal on the appeal filed by the aggrieved wife. Petitioner had filed M.T.S. No. 501 of 1999 seeking restitution of
conjugal rights which was decreed ex-parte on 14.5.2001 in his favour by the learned Family Court at Indore. When steps for restitution of conjugal
rights failed, he instituted Execution Case No. 501/1999/2006 on 02.2.2006 against the respondent. She avoided appearance. The learned Executing
Court therefore disposed of the Execution Case vide order dated 28.3.2007 presuming that she is not interested in joining the society of the petitioner.
Thereafter, the present Suit was filed, since despite lapse of one year period from the date of passing of the decree in the Suit for restitution of
conjugal rights, the respondent avoided to join the society of the petitioner. The Suit was initially filed before the Principal Judge, Family Court, Indore
but after the order of the Hon’ble Apex Court passed on the transfer application of the respondent-wife bearing Transfer Petition No. 473 of
2007, the same was transferred to the learned Family Court, Ranchi.
Respondent through her written statement asserted that she is a handicapped lady and was unable to prosecute her case at Indore. She has been
subjected to cruelty in marriage due to non-fulfilment of dowry demand. After birth of twin sons, atrocities committed upon her increased. Her
husband forced her father to spend a lot of money during marriage of her sister-in-law. On 26.2.1991, petitioner misbehaved with her and directed her
to bring Rs. 1 lakh from her father. On her refusal, her husband and in-laws threw her from a double storied building which completely parlayzed her
as her spinal cord was broken. She got treated for one and half month in a reputed hospital and, thereafter, came to Ranchi. The petitioner kept all her
Stridhan and other belongings including her two sons also. She had instituted criminal case against her husband and in-laws but, on the strength of
money, the petitioner and his family members restrained the respondent from bringing evidence in the trial court and they got acquitted. She admitted
getting maintenance from her husband. She denied receipt of any notice in M.T.S. No. 501 of 1999. She denied knowledge of the ex-parte decree
passed in the said case. Only after notice in Execution Case No. 501 of 1999, she came to know on 14.5.2001 about the order of restitution of
conjugal rights. She had sent a reply in Execution Case No. 501 of 1999 also. The respondent-wife further stated that her husband had instituted a
Divorce Suit No. 700 of 2002 before the Family Court, Indore, seeking divorce on the ground of cruelty, which was transferred to the Court of
Principal
Judge, Family Court, Ranchi by order of the Hon’ble Apex Court in Transfer Petition No. 515 of 2003. Petitioner however, did not appear in the
said Suit which led to its dismissal for default. Concealing these facts, the Execution Case was filed in the year 2006, as such, the husband should not
be allowed to take advantage of his own fault.
Based on the rival pleadings of the parties, the following issues were framed for consideration by the learned Family Court:
“I. Whether the suit is maintainable?
II. Whether the petitioner has got cause of action?
III. Whether co-habitation took place after passing of the decree for restitution of conjugal right?
IV. Whether the petitioner is entitled to relief as claimed?Â
During the course of trial petitioner-husband examined himself as PW-1 and one Mukesh Nagar as PW-2. Respondent also examined herself as
RW-1 and Prabhudayal Vijay, her father as RW-2.
Petitioner exhibited the certified copy of the judgment passed in M.T.S. No. 501 of 1999 and certified copy of deposition of the respondent-wife in
Misc. Case No. 51 of 1999 as Exhibits 1 and 2 respectively.
Respondent exhibited following documents on her behalf:
“I. Exhibit-A is the Certified copy of entire order-sheet of M.T.S. No. 09 of 2004 (H.M.a. 700 of 2002)
II. Exhibit-B is the Certified Copy of Decree of MTS 501 of 1999
III.Exhibit-C is the Certified Copy of order passed in Transfer Petition (Civil) No. 515 /2003
IV.Exhibit-D and D/1 are the Certified Copies of prescriptions of Dr. N.P.Sinha dated 14.12.1998, 14.12.1998 and 23.5.1998.
I. Exhibit â€"E is the Certified Copy of prescription of Dr. P.R.Prasad.
VI. Exhibit-F is the Certified Copy of prescription dated 23.11.2006.
VII. Exhibit-G is the Certified Copy of prescription dated 18.12.2006. VIII.Exhibit-H is the Certified Copy of prescription of Dr. Sureshwar Pandey
dated 14.2.2007.
IX. Exhibit-I is the Certified Copy of prescription of Dr. P.R.Prasad dated 10.1.2007
X. Exhibit-J is the Certified Copy of the prescription of Nagarmal Modi Sewa Sadan Ranchi dated 17.10.2006.
XI. Exhibit-K is the Certified Copy of Cash Memo of Sudhir Surgical dated 20.12.2006.
XII. Exhibit-L is the Certified Copy of Patient Details of Mrs. Usha Devi. Â
XIII. Exhibit-M to M/s are the Certified copies of Cash Memo receipt of Jai Hind Pharma dated 04.04.2002. Bharat Medical Hall dated 04.04.2002,
Jai Hind Pharma dated 01.12.2006, Payless Drugs and Cosmetics dated 18.12.2006, 23.12.2006, 09.01.2007 and 27.1.2007.
XIV. Exhibit-N to N/1 are the Certified Copies of Money Receipt of Lalpur X-Ray Clinic dated 27.12.2006 and C.C. of X-Ray Report of Lalpur X-
Ray Clinic.
XV. Exhibit-O is the certified Copy of Money Receipt of Ram Janam Sulakshna Institute dated 14.2.2007
XVI. Exhibit-P and P/1 are the Certified Copies of Cash Memo of Topical Pharma dated 16.2.2007 and 15.1.2007.
XVII. Exhibit-Q and Q/1 are the Certified Copy of Two Registration Form of Ortheco,Ranchi.
XVIII. Exhhibit-R is the Certified Copy of Cash Memo of Shanti Medical Hall dated 17.10.2006.
XIX. Exhibit â€"S is the Certified Copy of District Medical Board Report of Usha Vijayvargia, and
XX. Exhibit-T is the Certified Copy of plaint of M.T.S. 09 of 2004.â€
The learned trial court proceeded to appreciate the evidence on record and answer the issues framed. Issue No.1 relating to maintainability of the
Suit was answered in favour of the petitioner-husband on the ground that the respondent-wife had failed to join the society of the husband even after
passing of the decree of restitution of conjugal rights and prosecution of the Execution case. The learned family court dealt with the contention of the
wife that the present Suit was hit by provision of Order IX Rule 9 of the C.P.C. as it relates to the same cause of action for which Matrimonial Suit
No. 700 of 2002 was earlier filed by the petitioner and got dismissed for default. The learned Family Court, found that the earlier Suit was filed on the
ground of cruelty and desertion in marriage though in the said case the petitioner had made an averment that even after passing of decree of
restitution of conjugal rights, the respondent-wife had not been willing to rejoin the matrimonial home. As such, the plea that the present Suit was in
relation to the same cause of action was not correct. Therefore, the Suit was not hit by the provisions of Order IX Rule 9 of the CPC. The learned
trial court also found that a criminal case instituted by the respondent in the year 1991 U/s. 498-A and 307 IPC ended in acquittal of the petitioner-
husband vide judgment rendered by Additional Sessions Judge, Indore in Sessions Case No. 16 of 1997 dated 8.5.2000. The respondent-wife preferred
a Criminal Appeal No.900 of 2000 before the Hon’ble High Court of Madhya Pradesh which was dismissed vide judgment dated 9.10.2010. As
such, the contention of respondent-wife that the petitioner was taking advantage of his own wrong as was contemplated u/s 23 of the Hindu Marriage
Act is not worth acceptance. When the plea of cruelty in marriage alleged by way of a criminal case has ended in acquittal of the husband, the
respondent-wife could not be allowed to take a ground that she had reasonable cause to stay away from the matrimonial home. As such this issue was
answered in favour of the petitioner.
The learned family court then proceeded to deal with the Issue no. 3 as to whether cohabitation took place after passing of the decree for restitution
of conjugal right. The testimony of the respondent recorded in Misc. case no. 51 of 1999 filed by her for maintenance (Ext.2) showed that she was not
at all ready to join the company and society of the husband. She in her cross-examination stated that she does not accept the petitioner as her
husband. She further stated that if the petitioner takes step to get her back to her matrimonial house from the Court, she is not ready for that. From the
case of the respondentwife itself it was evident that the spouses had been living separately since March, 1991 and despite order of the competent
court for restitution of conjugal rights, cohabitation had not taken place and she was not at all ready to return to her matrimonial home. As such, the
ingredient u/s 13(1-A) (ii) of the Hindu marriage Act, 1955 stood satisfied.
Issue No.2 relating to cause of action was also answered in favour of the petitioner.
Having dealt with the main issues on contest between the parties, the learned family court proceeded to dissolve the marriage between the parties
and decree the Suit in favour of the husband. The learned family court took note of the handicap of the lady due to accident that had taken place in the
year 1991. However, it was of the view that she has shown stubborness in her behavior in depriving the petitioner from his right of cohabitation who
has been compelled to live life of a loner for last several years. Both the sons have also been in the custody of the petitioner and were getting
education under his guardianship. The wife had not taken care of her sons as per her statement given in Misc. case no. 51 of 1999. She did not
contact her sons also. In the background of the pleadings and these material evidence on record, learned counsel for the appellant has raised a
question on the finding of the learned family court primarily on the ground that the plea raised by the respondent relating to cruelty in marriage inflicted
by the husband has not been adequately answered or dealt with. A number of documentary evidence relating to her treatment for injuries sustained
due to acts of the husband of throwing her down from the double storied house in the year 1991 have been completely overlooked while deciding the
case by the learned family court. The husband has been allowed to take advantage of his own wrong contrary to the ingredient of Section 23 of the
Act of 1955. Therefore, the impugned judgment deserves interference. Â
Learned counsel for the respondent-husband has however supported the impugned finding. He submits that entire sequence of facts have been
properly taken note of in the light of the material evidence on record by the learned family court. Since 1991 the appellant has been living separately
without any reasonable cause. The efforts of the respondent-husband to bring her back to the matrimonial house has been repeatedly resisted. Even
the decree of restitution for conjugal rights was not complied on her part. As such, the respondent/husband herein had good ground to seek decree for
dissolution of marriage u/s 13(1-A) (ii) of the Act of 1955. The children have also grown under his guardianship and their marriage has also been
performed by the husband. The appellant has been getting maintenance of Rs. 5,000/- as per the orders of the learned court. The impugned findings
therefore, deserve no interference.
We have considered the submissions of learned counsel in detail and gone through the material evidence on record and also perused the impugned
judgment. From the narrative described above, we find no difficulty in arriving at an opinion that the findings rendered by the learned Family Court do
not suffer from such errors of law or facts which deserve interference in appeal. The wife-appellant as per her own admission is living separately
since 1991. Though, she lodged a criminal case u/s 498-A and Section 307 of the IPC alleging cruelty in marriage and attempt to cause murder against
the husband, the same ended up in acquittal of the husband. This was also affirmed in appeal by the High Court of Madhya Pradesh. As such, no
reasonable cause can be made out on the part of the appellant to leave the matrimonial home and stay away since 1991. On the contrary, the efforts
for restitution of conjugal rights on the part of the respondent-husband have failed despite a decree of restitution of conjugal rights in his favour. The
instant suit has been instituted only on the ground available u/s 13(1-A) (ii) of the Hindu Marriage Act, 1955. No grounds of fault are alleged or
required to be established in such a matter on the part of the aggrieved spouse. Once the ingredient of Section 13(1-A) (ii) of the Act of 1955 has
been established by evidence on record showing failure of the appellant wife to join the society of the husband and cohabit with him, the respondent
husband had all the reasons to seek dissolution of marriage under the aforesaid provisions. The learned court has appreciated the evidence on record
in a proper manner which does not suffer from any perversity. Therefore, we do not find any good ground to interfere in the present appeal.
Accordingly, instant appeal stands dismissed. Decree accordingly.             Â