D.R. Khanna, J.
(1) Maintenance, husband takes the wife to his home but no cohabitation occurs the taking her to defeat maintenance right), then husband's right to seek divorce on the plea of no cohabitation may be refused on the ground of lack of bona fides. Provision of S. 9 may be abused and wife should guard herself against ill-conceived and reckless legal advice. Conjugal right explained id park 6. Before considering the merits of this appeal moved by Santosh Kumari against the grant of a decree of divorce against her, reference may be made to C.M. No. 5135 which she has moved u/s 5 of the Limitation Act for condensation of delay in filing the certified copy of the impugned judgment. The appeal itself was filed on 31.5.1984 on the basis of an uncertified copy, and the Court allowed her to do so subject to her filing the certified copy within time. This certified copy was filed on 30.11.1984, and there has been a delay of over 100 days, Along with this application, two affidavits have been filed; one of Santosh Kumari and the other of a clerk of Mrs. Usha Kumar, Advocate, who had filed this appeal. They show that the certified copy was, in fact, applied for within time, and when it was obtained it was given over to the counsel's' clerk for being filed in Court. He however, failed to do so, and the certified copy got mixed up in the other papers of the office. Later when the counsel noticed this, a search was effected, and as soon as the certified copy 1985. Rajdhani Law Reporter was located it was filed in Court with application For condensation of delay. After considering these affidavits, I am inclined to condone the delay. The appellant acted diligently in applying for certified copy and obtaining the same. The default occurred with the counsel's clerk who misplaced it in other papers of the office. For this she was not to blame and her bona fides cannot be disputed. The divorce decree materially affected her life, and she had taken prompt steps to file the appeal to assail the same. Her conduct shows that she did everything that was required of her to file the appeal, and, thereforee, she should not suffer for the negligence of the counsel's clerk. I am inclined to condone the delay.
(2) Kewal Krishan and Santosh Kumari were married on 6.9.1977 according to Hindu rites and lived together for about two years. Ever since then Santosh Kumari has been residing with her parents. She has no income of her own, her educational qualifications being up to 10th class. Kewal Krishan holds diploma in Ayurveda. There has been no child from the weldlock.
(3) On 29.5.1980, a petition for divorce was moved by Kewal Krishan against Santosh Kumari with allegations of cruelty, adultery and desertion. In the meanwhile Santosh Kumari also moved a petition for restitution of conjugal rights u/s 9 of the Hindu Marriage Act on 2.7.1980 in which she alleged that she had been turned out by Kewal Krishan when she and her parents were unable to meet further demands of dowry in the form scooter, fridge, cash etc. Both these petitions were consolidated. During the course of proceedings an order for interim maintenance u/s 24 of the Hindu Marriage Act was made which Kewal Krishan did not comply. Subsequently Kewal Krishan withdrew his petition for divorce on 11.8.1981. His defense to the petition of wife u/s 9 of the Hindu Marriage Act was struck off on his failure to pay the pendente lite maintenance, and that petition was allowed on 11.8.1981. It was observed that no reasonable excuse had been proved on record for Kewal Krishan to withdrew from the society of Santosh Kumari.
(4) A petition for grant of maintenance u/s 125 Cr. P.C. was as well moved by Santosh Kumari against Kewal Krishan in a criminal court on 21.8.1981. After the close of the wife's evidence in this petition Kewal Krishan agreed to pay Rs. 300.00 p.m. as maintenance to her. This was on 5.6.1984.
(5) The present petition for divorce was moved by Kewal Krishan on 23.8.1982 on the ground that more than a year had passed since the grant of decree for restitution of conjugal rights, and the parties have not resumed co-habitation thereafter. Santosh Kumari on her part took the stand that at the intervention of the relations and well- wishers Kaswal Krishan admitted her back in the matrimonial home on 14.3.1932 and she stayed with him up to 5.6.1982 when she was again turned out after ill-treatment.
(6) The learned trial court considering the entire evidence rejected the version of Santosh Kumari of her joining the matrimonial home in 1982, and as such granted the decree of divorce in favor of Kewal Krishan on the simple ground that a period of one year had lapsed since the decree made u/s 9 of the Hindu Marriage Act. Recourse in this regard was taken to the amended provisions introduced in Section 13 of the Hindu Marriage Act in the year 1976 which entitle either party to a marriage to seek dissolution of marriage if there has been no restitution of conjugal rights for a period of one year or upwards after passing of a decree for restitution of conjugal rights. Earlier the law as then existed, entitled that spouse alone to seek dissolution in whose favor the decree for restitution of conjugal rights had been passed. Kewal Krishan could not have then sought divorce. He only seeks to take benefit of the amended provisions, and this is in spite of the fact that his petition for divorce on the grounds of cruelty, adultery and desertion had been dismissed as withdrawn, and he has also been burdened with payment of monthly maintenance u/s 125 Cr. P.C. It must be said that the remedy by way of restitution of conjugal rights u/s 9 of the Hindu Marriage Act has been rendered extremely precarious for a spouse who has nothing to do with the break up of the matrimonial home and who has no desire to obtain divorce. Rather this provision is now turning out to be to the entire advantage of her husband, and she has been almost rendered in a helpless state by ill conceived legal advice and reckless moving of the petition u/s 9 of the Hindu Marriage Act. Santosh Kumari vs. Kewal Krishan She is a woman with limited education having no source of her own income, and has to constantly remain dependent on others. She knows the limitations and prejudices which a divorced woman finds herself in our society and the bleak prospects that she has of remarriage. It must be said that after the amendment introduced in 1976, a petition for restitution of conjugal rights should sparingly be moved and only when the spouse seeking it, intends to or ready to face the consequence of divorce. Indiscriminate recourse to its provisions can rather render victim of highhandedness of other spouse into helpless state and entitle the other to take the entire benefits thereof, notwithstanding the defaults committed in matrimonial obligations.
(7) Another unfortunate circumstances which has come on record has been the statement of Santosh Kumari which was recorded by the trial court on 1.10.1982 before the framing of issues. In this she has stated that from 14.3.1982, she had lived with Kewal Krishan at his residence B-42, Hari Nagar, but they had no sexual act during that period. Mr. Bhatia appearing on behalf of Kewal Krishan has in the circumstances vehemently contended that there can be no escape from the grant of decree of divorce in the present ease in his favor. It is pointed out that S. 13(A) of the Hindu Marriage Act as introduced in 1976 envisages resumption of cohabitation within a period of one year when a decree for judicial separation has been passed to avoid a decree of divorce. However, in the case were a decree for restitution of conjugal rights has been passed what is required is that it should result in restitution of conjugal rights within a period of one year. Such conjugal rights, it is pleaded must necessarily involve sexual rights or privileges implied by and involved in marriage relationship and those rights include the right of a coitus between husband and wife. Reference has been next made to Webster's 3rd New Int. Dictionary, vol. 1 .1976 Ed. 441 to show that coitus means physical union of male and female genitalia accompanied by rhythmic movements leading to the ejaculation of semen from the penis into the female reproductive tract, intercourse. In the circumstances, it has been asserted from the side of Kewal Krishan that irrespective of whether Santosh Kumari had come to reside with him from 14.3.1982 to 5.6.1982 (which fact was not admitted) her admission that there was no sexual act during this period should be enough to negative the restitution of conjugal rights, and, thereforee, Kewal Krishan is entitled to dissolution of marriage by decree of divorce u/s 13(A)(ii) of the Hindu Marriage Act.
(8) The learned trial court did not accept the version of Santosh Kumari that there was a re-union in the matrimonial home between the period 14.3.1982 to 5-6-1982. Rather it was held that it was not proved that Santosh Kumari had been admitted back by Kewal Krishan in his house.
(9) The witnesses examined from the side of Kewal Krishan have been he himself, his mother Public Witness . 2 Prem Kumari and a neighbour P.W. 3 Alexander Pinto. They have denied that Santosh Kumari lived with him after the decree for restitution of conjugal rights. Alexander Pinto stated that his house is opposite the house of Kewal Krishan, and he is his friend. According to him though he has a touring job he was in Delhi during the months of May and June, 1982. He had, however, not brought any record to show the same though added that the record would be available in bids factory, and if required he could produce a certificate from there.
(10) From the side of Santosh Kumari she appeared in the witness box as R.W. land examined her father R.W. 3 Abnashi Ram, her brother R.W. 4 Kamal Kumar and three other witnesses, namely R.W. 2 Dr. Pravin Kumar Sharma, R.W. 5 Gulshan Lal Sahni and R.W. 6 Surender Katyal. According to Surender Katyal, Kewal Krishan had come to his shop on 13.5.1982, and requested to arrange for his meeting with the father of Santosh Kumari. He then took him to the shop of Dr. Pravin Kumar. This is confirmed by Dr. Pravin Kumar and from there the three went to the shop of Santosh Kumari's fat her. He was apprised that Kewal Krishan was keen to take back Santosh Kumari. A meeting was, thereforee, fixed for 14.5.182 in which all of them and Public Witness . 5 Gulshan Lal Sahni and Santosh Kumari joined. Kewal Krishan agreed to admit Santosh. Kumari into the matrimonial home, and assured of good treatment towards her. It was as such that Santosh Kumari went with him and stayed there up to 5.6.1982. During the course of this meeting, according to Santosh Kumari as well as her father, they considered it proper to lodge a report with the police of the factum of her going to the house of Kewal Krishan lest there be any complications later. Apart from the evidence of these three witnesses who are independent, a number of letters have been produced which Santosh Kumari wrote to her parents and they to her during that period. One of them is Ex. R.W. 1/4 which is written by Santosh Kumari's mother on an inland letter with the address of the house of Kewal Krishan. The postal stamp on this is clearly visible and bears the date 1.6.1982. From these letters it is sought to be shown that Santosh Kumari was in fact in those days residing with Kewal Krishan in his house. Another letter Ex. R.W. 1/2 on an inland letter was purported have been written by Santosh Kumari to her father, but this necessarily does not lead-to any inference that it was written from Kewal Krishan's house, though the address mentioned of the sender is of that house. Similar must be said of other letters. Before proceeding further, it is relevant to mention here that execution of the decree for restitution of conjugal rights applied for by Santosh Kumari was pending during the period when Santosh Kumari is said to have so resided in the house of Kewal Krishan. Similarly her petition u/s 125 Cr. P.C. remained pending in the criminal court. These according to Santosh Kumari's counsel, were allowed to remain pending to await how far the get-to-gather turned out to be a long term proposition, and besides there were vacations. The apprehensions of Santosh Kumari that Kewal Krishan might not be wholly sincere in admitting her back for good in the matrimonial home, it is pointed out turned out to be correct when she was again unceremoniously thrown out on 5.6.1982.
(11) From the side of Kewal Krishan on the other hand, it has been pleaded that it was highly unusual on the part of Santosh Kumari to have lodged a report with police before she went to live with him, and the same not only , reflected lack of bona fide on her part, but also that she was out to create evidence. Similar is stated to be the nature of the so called letters exchanged. It is pointed out that R.W. 6 Surender Katyal in reply to a court question admitted that from 12.40. P.M. to 4.30 P.M. on 14.5.1982, Santosh Kumar or her father remained at the place of meeting, and had not left for any time. It was in between this time that Santosh Kumari and her father claimed that they had gone to lodge the said report with the police. R.W. 5 Gulshan Sahni, however, has stated that he approved of the filing of the report with the police, and they had in fact gone and later come back.
(12) After giving my careful consideration to the entire evidence, I am not inclined to reject the evidence of three independent witnesses, one of whom is a doctor, They are not shown, in any manner, to be specially interested in the appellant or in any manner inimical to the respondent. Santosh Kumari has been quite straightforward In her statement before the issues, and that reflects how she is simple minded and not prone to twist facts. There is corroboration of their testimony in the letter Ex. R.W. 1/4 which was written by Santosh Kumari's mother on an inland letter with the address of the house of Kewal Krishan. The date on the same is clearly visible as 1-6-1982, coinciding with the time when she was staying with the respondent. The filing of the police report before going there, though appears somewhat unusual, cannot be entirely considered improbable from the point of view of Santosh Kumari who had not very pleasant experience of staying with the respondent. It can be treated as indiscrete or ill-advised act. Furthermore, pendency of petition u/s 125 Cr. P.C. and other proceedings has been stated to be in order to wait and see row the reunion lasted. It rather more appears to be a case where the respondent considered it more expedient to take her back for a shortwhile and thereby get the maintenance and other proceedings- defeated. In that long meeting covering some Hours in case Santosh Kumari and her father went out for some time and this finds corroboration from the testimony of R.W. 5 Gulshan Sahni, the evidence of the other three witnesses about her going with Kewal Krishan cannot be altogether rejected. The going for filing a police report could as well have been arranged by them in a manner as be not known to all those present there.
(13) Thus there was a break in the period of me year as envisaged by S. 13(1A) and, there-. Santosh Kumari vs. Kewel Krishan fore, the respondent cannot straightaway claim a decree for divorce on that basis.
(14) As regards the non-observance of conjugal rights during the period about which Santosh Kumari's statement was recorded before issues, Mr. Bhatia is right that the legislature had made a difference in the cases of decrees for judicial separation and those for restitution of conjugal rights, However, it is also apparent that Santosh Kumari on her part had done all to submit her self to her matrimonial home and the obligations. The same reflects her docile and self-abnegator nature. The question to be considered is whether in these circumstances Kewal Krishan should be still allowed to avail the decree of divorce when he by his own conduct did not allow the marital living conjugated during .that period.
(15) It is in this regard that I would like to make reference to the provisions of S. 23 of the Act, which still empowers the Court to decline relief under the provisions of the Act, though the grounds for that exists if it is satisfied that any spouse is taking advantage of his or her wrong or disability for the purpose of such relief. There have been a number of decisions on the implication and effect 0:1 these newly introduced amended provisions of S. 23(a), and it has been held that the Court should not decline to give effect to them though the party invoking it may be taking advantage of his own wrong. (See in this regard Ram Kali V. Gopal Dass, (1971) 1 Del F.B.; Dharmendra Kumar V. Usha Kumar, : 1SCR315 ; Saroj Rani V. Sudarshan Kumar, 1984 S.C. 1562 Smt Gajna Devi V. Purshotam Giri, Air 1977 Del. P8 and Hardarshan Kaur V. Gagan Inder Singh (1982) D.M.C.359 In the case of Dharmendra Kumar, the Supreme Court observed that the mere disinclination to agree to an offer of reunion would not be ''wrong' within the meaning of S. 23(l)(a). The misconduct must be serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled. In Ram Kali's case, the Full Bench of this Court observed that if there has been no resumption of cohabitation or no restitution of conjugal rights as between the parties to the marriage for a period of two years or upwards, after the passing of a decree for judicial separation or for restitution of conjugal rights, the Court should assume that the relations between the parties have reached a stage where there is no possibility of reconciliation and as such it might grant the decree of divorce. The aforesaid object is in consonance with the modern trend not to insist on the maintenance of union which has utterly broken down. It would not be a practical and realistic approach, indeed it would be unreasonable and inhuman to compel the parties to keep up the facade of marriage even though the rift between them is complete and there are no prospects of their ever living together as husband and wife. In the case of Smt. Gajna Devi V. Purshotam girl (supra), B.C. Misra, J. observed that availing of the statutory right u/s 13(1A) is not taking advantage of his own wrong but of the legal right following the passing of the decree and the failure of the parties to comply therewith or resume cohabitation thereafter. However if after the earlier decree any circumstances happen which in view of S. 23(1) disentitle the spouse to divorce u/s 13(1A) they can always be taken into account.
(16) From the side of the appellant, of course, reliance has been placed upon 3 cases viz. Captain B.R. Syal v. Smt. Ram Syal, , Shanti Bai V. Prabhkar, 1978 M. L.R. 73 and Laxmibad V. LaxmiChand, 1968 Bom 332 wherein the right of the Court to still dismiss petition for divorce was recognised u/s 23(1) if there are circumstances that the defaulting spouse has been entirely responsible for the failure of restitution of conjugal rights or co-habitation as the case be.
(17) In cases where the couples are educated, financially and socially independent, or are further well aware of the consequences of break-up of marriages, and are determined to proceed in that direction, it can be said that to still hold them tied by matrimonial bonds would be wholly unjustified. A couple at loggerhead, apart from being a source of mental and physical agony to each other, is as well not a healthy influence on others and the society at large. After all the basic concept of marriage is companionship, love, happiness, peace and procreation. Where these are lost. the marriages are reduced to a farce, and there is no point in still making them to wear the cloak of wedlock, when for all intents and purposes it has been torn off 1985. Raj. L.R 393 & shattered. Individuals are saved from worst tensions & from extra marital excursions. Majority of our females are illiterate and have no source of livlihood. A divorcee woman finds herself as a desolate lone voyager. Mere providing of maintenance is no substitute for happiness from marriage. Divorce to her means veritable widow-hood for the rest of life with all the stigma attached. Appeal allowed.
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