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Satya Pal Sethi Vs. Smt. Sushila Sethi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 129 of 1983
Judge
Reported inAIR1984All81
ActsHindu Marriage Act, 1955 - Sections 13 and 27
AppellantSatya Pal Sethi
RespondentSmt. Sushila Sethi
Appellant AdvocateRavi Kiran Jain, Adv.
Respondent AdvocateB.B. Paul, Adv.
DispositionAppeals dismissed
Excerpt:
.....and abandonment against wife - not proved - wife proved husband living in adultery - whether to continue living with husband or not is for wife to decide - claimed no relief against husband - divorce petition cannot be allowed - allegations of husband not proved and no relief sought by wife. (ii) recovery of jewellary - section 27 of hindu marriage act, 1955 - divorce petition filed by husband - rejected - claim filed by wife for possession of her ornaments - cannot be filed under section 27 - separate petition needed to be filed - also cannot be granted on account of divorce petition being dismissed. - - 6 that neither of the parties was entitled to any relief, it dismissed the husband's petition as well as the wife's counter-claim. if she does not want the marriage to be dissolved..........dissolve the marriage by a decree of divorce in her favour. the husband has to suffer the consequences of his own wrong. may be the wife also suffers, and suffers more as the innocent party, but when she does not desire any relief from the court, though she could have asked for it on the facts alleged and proved by her, her sentiments must be respected and no decree for divorce could be passed, although it may seem that the marriage has irretrievably broken down.7. as to the cross-appeal, the trial court is right that the claim for return of the ornaments is beyond the scope of section 27 of the hindu marriage act, 1955. i might add that the dismissal of the petition for divorce is another ground for not passing any orders under section 27, for that provision contemplates a situation.....
Judgment:

Deoki Nandan, J.

1. This is a husband's first appeal from a decree dismissing his petition for divorce. There was a counter-claim for recovery of ornaments valued at Rs. 25,200/- and a sofa set valued at Rs. 1000/- under Section 27 of the Hindu Marriage Act, 1954. The petition and counter-claim were tried together by the Court of Additional Civil Judge, Saharanpur as a District Court under the Hindu Marriage Act and dismissed by judgment dated 30th January, 1980. This appeal was filed in the Court of District Judge. Saharanpur, but by order dated 7th October, 1980, the Court of the 1st Additional District Judge, Saharanpur found that the valuation of the suit was Rs. 20,000/- and consequently the appeal lay to this Court. The memorandum of appeal was thereupon presented in this Court.

2. A cross-appeal has also been filed by the respondent-wife against the dismissal of her counter-claim for the return of the ornaments and sofa set.

3. The parties were married on 5th July, 1964. From the said wedlock a son was born on 12th January, 1973. It is not necessary for me in this case to restate the pleadings of the parties. Suffice it to say that the trial Court framed following issues:

1. Whether the respondent treated the petitioner with cruelty as alleged in the plaint?

2. Whether the respondent deserted the petitioner without reasonable and probable cause?

3. Whether the petitioner treated the respondent cruelly as alleged in the Written Statement?.

4. Whether the petitioner is leading the life of adultery with Giri Symon. If so its effect?.

5. Whether the ornaments of respondent are in the custody of the petitioner? If so what amount is the respondent entitled to?

6. To what relief, if any, is the petitioner entitled?.

4. The trial Court took up issues 1, 3 and 4 together. It held on the 1st issue that the respondent did not treat the petitioner with cruelty. It was of the view that most probably the allegations made by the respondent against the petitioner, in particular her case that the petitioner was leading the life of adultery was true, but it held that no findings need be given on issues 3 and 4, as the respondent did not claim any relief against the petitioner. On issue No. 2, the trial Court found that it cannot possibly be said that the respondent deserted the petitioner and answered the issue in the negative against the latter. On issue No. 5, it found that the claim for recovery of ornaments was not within the scope of Section 27 of the HinduMarriage Act, as the ornaments were the exclusive property of the wife as her Stridhana and the respondent could, bring a separate regular suit for their recovery. The trial Court, therefore, held that no finding need be given on that issue; and finding on issue No. 6 that neither of the parties was entitled to any relief, it dismissed the husband's petition as well as the wife's counter-claim.

5. I have heard Mr. Ravi Kiran Jain for the petitioner appellant and Mr. B. B. Paul for the respondent wife. The findings in this case are based on an appraisal of the oral evidence on record; and the documentary evidence fully corroborates the respondent-wife's case. There is nothing in the documentary evidence or any of the facts and circumstances of the case which might have persuaded an Appellate Court to take a view different from that taken by the learned Judge of the trial Court on an appraisal of the oral evidence on the record. I have perused the judgment of the trial Court and have also perused the documentary evidence. The finding of the trial Court that the respondent could not be said to be guilty of either desertion or cruelty is impeccable. Rather it appears clear the the petitioner was living in adultery.

6. The learned counsel for the appellant pressed before me that I might call for the parties and try to bring about a reconciliation in between them, and if that was not found, possible, they could probably agree to disagree. His point was that the marriage between the parties has irretrievably broken down and the dismissal of the divorce petition in this situation has the effect of only perpetuating the misery of the parties. The learned counsel for the respondent on the other hand stated that notwithstanding her case that the petitioner had been living in adultery, she did not want any relief against the petitoner and had even stated in the trial Court that she was prepared to go and live with the petitioner. Be that as it may, a Hindu wife has a right to her notions of right and wrong. If she does not want the marriage to be dissolved at her instance in spite of there being good ground for the same, the Court cannot dissolve the marriage by a decree of divorce in her favour. The husband has to suffer the consequences of his own wrong. May be the wife also suffers, and suffers more as the innocent party, but when she does not desire any relief from the Court, though she could have asked for it on the facts alleged and proved by her, her sentiments must be respected and no decree for divorce could be passed, although it may seem that the marriage has irretrievably broken down.

7. As to the cross-appeal, the trial Court is right that the claim for return of the ornaments is beyond the scope of Section 27 of the Hindu Marriage Act, 1955. I might add that the dismissal of the petition for divorce is another ground for not passing any orders under Section 27, for that provision contemplates a situation where a decree of divorce or nullity or judicial separation, or may be restitution of conjugal rights also, has been passed. It does not contemplate a situation where the petition for any of these four kinds of reliefs is dismissed.

8. In the result, the appeal fails and is dismissed with costs. The cross-appeal is also dismissed, but without any order as to costs.


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