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Chaman Lal Chuni Lal Vs. Smt. Mohinder Devi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 31-M of 1966
Judge
Reported inAIR1968P& H287
ActsHindu Marriage Act, 1955 - Sections 13(1A), 23 and 23(1)
AppellantChaman Lal Chuni Lal
RespondentSmt. Mohinder Devi
Appellant Advocate H.L. Sarin and; Bahl Singh Malik, Advs.
Respondent Advocate V.P. Sharda, Adv.
DispositionAppeal dismissed
Excerpt:
..... because under section 13(1a)(ii), the mere existence of an unsatisfied decree for restitution of conjugal rights for the required period was sufficient for the court to grant a decree of divorce. against whom the said decree had been passed, had failed to comply with that decree for a period of two years or upwards after the passing of the same. but under section 23(1)(a) of the act, the court, before granting the relief to the petitioner had to be satisfied that he was not in anyway taking advantage of his own wrong for the purpose of such relief. the moment the court was satisfied that he was taking the said advantage, the petition had to be dismissed. section 23(1)(a) says that in any proceeding under the act, whether defended or not, if the court was satisfied that any of the..........on 10th of february 1962. chaman lal filed a petition under section 9 of the act against his wife for restitution of conjugal rights. on 17th of march 1962, the wife also put in a similar petition against her husband. the proceedings in the husband's petition were staved and an ex parte decree for restitution of conjugal rights was granted in favour of the wife on 16th of january, 1963. chaman lal filed an appeal in this court against the ex parte decree and the same was rejected on 23rd of december, 1964. on 17th of july, 1965, the husband moved the petition under section 13 of the act out of which the present appeal has arisen, for divorce on the ground that there had been no restitution of conjugal rights between the parties for a period of two years after the passing of the.....
Judgment:

P.C. Pandit, J.

1. This is an appeal filed by the husband against the judgment of the learned District Judge, Amritsar, dismissing his petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter called the Act) for a decree of divorce against his wife.

2. Chaman Lal, appellant, was married to Smt. Mohinder Devi on 26th of August, 1959. A daughter was born to them on 21st of October, 1960. It appears that the relations between the parties became strained and according to the appellant, the respondent left his house and started living with her parents in Amritsar. According to him. several efforts were made to bring her back but with no effect. On 10th of February 1962. Chaman Lal filed a petition under Section 9 of the Act against his wife for restitution of conjugal rights. On 17th of March 1962, the wife also put in a similar petition against her husband. The proceedings in the husband's petition were staved and an ex parte decree for restitution of conjugal rights was granted in favour of the wife on 16th of January, 1963. Chaman Lal filed an appeal in this Court against the ex parte decree and the same was rejected on 23rd of December, 1964. On 17th of July, 1965, the husband moved the petition under Section 13 of the Act out of which the present appeal has arisen, for divorce on the ground that there had been no restitution of conjugal rights between the parties for a period of two years after the passing of the decree for restitution of conjugal rights on 16-1-1963. It was alleged by him that after the passing of the said decree, several efforts had been made by him for compliance of the decree, but they did not prove successful.

3. The petition was resisted by the wife who denied the allegations made against her by her husband. Thereafter evidence was led by the parties in support of their respective, contentions The learned District Judge who tried this case, came to the conclusion that the husband had not made any effort whatsoever for complying with the decree of restitution of conjugal rights passed against him, and refused to keep the respondent in his house at any cost. The learned Judge was, therefore of the opinion that Chaman Lal was not entitled to take advantage of his own wrong in not making any effort for satisfying the decree dated 16-1-1963 Under Section 23(1)(a) he, therefore, refused to grant him the relief prayed for and held that Chaman Lal was not entitled to a decree for divorce against his wife. His petition was, consequently dismissed with costs. Against this decision, the present appeal has been filed by Chaman Lal.

4. The first argument raised by the earned counsel for the appellant was a purely legal one. He submitted that a decree for restitution of conjugal rights was passed in favour of the wife on 16-1-1963 Admittedly, there had been no restitution of conjugal rights between the parties for a period of two years after the passing of the said decree. The petition for divorce had been filed by the husband more than two years after the decree. Under Section 13(1A)(ii) of the Act, the husband could file a petition for divorce on that ground The learned District Judge had erred in law in not granting the husband's petition for divorce. because under Section 13(1A)(ii), the mere existence of an unsatisfied decree for restitution of conjugal rights for the required period was sufficient for the court to grant a decree of divorce. The learned District Judge could not in law dismiss the husband's petition on the ground that he had not made any efforts to comply with the said decree during the period preceding the filing of the said petition under Section 13 of the Act. The provisions of Section 23(1)(a) did not apply to the facts of the present case.

5. Undoubtedly, by the insertion of subSection (1A) in Section 13 of the Act on 21st of February, 1964, the husband also could present a petition for the dissolution of the marriage by a decree of divorce on the ground that there had been no restitution of conjugal rights between the parties for a period of two years or upwards after thedecree for restitution of conjugal rights had been passed in favour of the wife against him Previously, it was the party, in whose favour the decree for restitution of conjugal rights had been granted who could alone move a petition under Section 13 on the ground that the other party. against whom the said decree had been passed, had failed to comply with that decree for a period of two years or upwards after the passing of the same. It is also true that the non-compliance with she decree for restitution of conjugal rights for a period of two years is a valid ground for granting the petition under Section 13 of the Act Ordinarily, the husband should have been able to secure a decree of divorce on this ground. But under Section 23(1)(a) of the Act, the Court, before granting the relief to the petitioner had to be satisfied that he was not in anyway taking advantage of his own wrong for the purpose of such relief. The moment the court was satisfied that he was taking the said advantage, the petition had to be dismissed. Section 23(1)(a) says that in any proceeding under the Act, whether defended or not, if the court was satisfied that any of the grounds for granting relief existed and the petitioner was not in any way taking advantage of his wrong for the purpose of such relief, then and in such a case, but not otherwise, the Court shall decree such relief accordingly Thus, the learned counsel for the appellant was not right in contending that the moment the husband proved to the court that a decree for restitution of conjugal rights had not been complied with for a period of two years before his petition under Section 13 had been presented, the court was bound to grant relief to him and the provisions of Section 23(1)(a) could not he looked at by the court In all proceedings under the Act. whether they are defended or not the court has to be satisfied under Section 23 about the various matters detailed therein and if it was not so satisfied, then it had to refuse relief to the petitioner. One of those matters, which is relevant in the instant case, was that the court had to be satisfied before granting relief to the husband that he was not taking advantage of his own wrong for obtaining the said relief A decree for restitution of conjugal rights had been passed against him. It was his duty to make efforts to comply with the said decree. He could not avoid the restitution of conjugal rights for two years after the decree and then make a petition for divorce on that ground, thus taking advantage of his own wrong. It could not possibly be the intention of the legislature that for the wife, who was keen for a decree for restitution of conjugal rights and actually obtained it against the husband, that decree should ultimately result in the dissolution of the marriage for no fault of hers and merely due to the wrong committed by her husband in not even making an effort to comply with the decree. That would ob-viously be the result, if the contention of the learned counsel for the appellant were to be accepted. There is, thus, no force in this submission of the learned counsel.

6. It was then contended that even on the merits, the learned District Judge was wrong in holding that the husband wasguilty of not complying with the decree for restitution of conjugal rights passed against him on 16-1-1963 during the period preceding the filing of the petition under Section 13 by him. According to the learned counsel, efforts had been made by the husband after 16-1-1963 forgetting back his wife and it was she who was the guilty party in that respect, because she had refused to come to his house in spite of those attempts on his part. In this behalf learned counsel placed reliance particularly on the evidence of Iqbal Singh, AW 1, Dr. Gurbax Singh AW. 2 and his own evidence.

7. There is no manner of doubt that the decree for restitution of conjugal rights had been passed against the husband and it was he who had moved the present petition for divorce under Section 13. It was, therefore, for him to show that he had made efforts to comply with the said decree and in spite of his attempts in that behalf, there had been no restitution of conjugal rights between the parties. It would be only then that it could be said that he was not taking advantage of his own wrong and would be entitled to get relief on the ground that the decree had not been complied with for a period of two years or more

8. to 10) In the petition under Section 13, all that the appellant stated was that in spite of his several efforts, there had been no restitution of conjugal rights ever since the passing of the decree on 16-1-1963 No details of the several efforts had been mentioned therein The allegation was quite vague and if he bad really made some genuine efforts they would have been stated in the petition This allegation was denied by the wife by saying that it was absolutely wrong

X X X X X X X

[After discussing the evidence on recordhis Lordship proceeded] --

Under these circumstances, I see no ground whatsoever to disturb the finding of the learned District Judge that the appellant was taking advantage of his own wrong in seeking the relief under Section 13 of the Act.

11. The appeal, consequently, fails and is dismissed with costs.


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