Gujarat High Court
Rajesh Chandrakant Majmudar vs Rekhaben Rajeshbhai Majmudar D/O on 11 June, 2013
Bench: Jayant Patel, Z.K.Saiyed
RAJESH CHANDRAKANT MAJMUDAR....Appellant(s)V/SREKHABEN RAJESHBHAI MAJMUDAR D/O. SHANTILAL VANI....Defendant(s) C/FA/721/2006 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 721 of 2006 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE Z.K.SAIYED ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== RAJESH CHANDRAKANT MAJMUDAR....Appellant(s) Versus REKHABEN RAJESHBHAI MAJMUDAR D/O. SHANTILAL VANI....Defendant(s) ============================================================== Appearance: MR JF MEHTA, ADVOCATE for the Appellant(s) No. 1 MR SA BAQUI, ADVOCATE for the Defendant(s) No. 1 MS FARHANA Y MANSURI, ADVOCATE for the Defendant(s) No. 1 ============================================================== CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 11/06/2013 ORAL JUDGMENT
(PER :
HONOURABLE MR.JUSTICE JAYANT PATEL) The present appeal arises out of the judgment & order passed by the Family Court dated 29.11.2005, whereby the petition for decree of divorce has been dismissed with the cost of Rs.25000/-.
The short facts appear to be that the marriage of the appellant with the respondent had taken place on 10.05.1973. Thereafter, the respondent filed application under section 125 of Cr.P.C. for maintenance. Such maintenance was ordered by the learned Magistrate in the year 2003. Roughly after 30 years, the petition has been filed by the appellant before the Family Court for decree of divorce on the ground that the respondent wife deserted the appellant after 3-4 months of the marriage. The respondent appeared in the said proceeding and filed written statement. She contended that the appellant did not like her and therefore, she was thrown out of the house. Thereafter, her parents had made attempt for reconciliation, but it did not materialise. She stated that the appellant was having illicit relation with some other lady and he did not accept her as wife and he was not properly treating her and he used to tell her that he had married with the respondent only because of the force of the relatives. It was also stated that the appellant is having affair with other lady and the respondent was not given proper treatment. The respondent also stated that she was prepared to go to her matrimonial house and ready to enjoy the matrimonial rights. The learned Judge of the Family Court at the conclusion of the proceedings, dismissed the petition. Under these circumstances, the present appeal before this Court.
We have heard Mr. J.F. Mehta for the appellant. We have considered the evidence of the parties. We have considered the reasons recorded by the learned Judge in the impugned judgment.
The perusal of the reasons recorded by the learned Judge of the Family Court shows that after appreciation of the evidence, since it was found that the appellant was residing with one Meenaben since long time, the evidence of the appellant was found to be unbelievable or not trustworthy in comparison to the evidence of the respondent. It was also found that as the appellant was having extramarital relation with Meenaben, that shows wrong on his side and he cannot take advantage of wrong done by him. The Court found that considering the facts and circumstances, as it was not proved that any desertion was made and as it was also found that the appellant cannot take advantage of his own wrong, the appellant is not entitled to the decree of divorce and ultimately, the petition for divorce was dismissed.
The evidence of the appellant is produced and in the cross-examination, he has admitted that he is staying with Meenaben since last 20-22 years. He has also admitted that two sons are born out of the relationship with Meenaben and one son is aged 20 years studying in engineering. This confession or admission on the part of the appellant in our view was sufficient proof for showing illicit relation with Meenaben, another lady than the respondent. Further, the said illicit relation is proved to the extent that two sons were born out of the said relation. When the appellant was already having illicit relation since last 20-25 years as admitted before the Court in the deposition on 04.04.2005, it would mean that since 1983-1985, the appellant had illicit relation with Meenaben and the sons were also born out of the relation and all such position did exist at the time when the petition was filed before the Family Court for divorce in the year 2003. Such a conduct on the part of the appellant-husband in our view, would be one of valid ground to dis-entitle the decree for divorce when the court is to exercise the power and the discretion for passing the decree of divorce keeping in view the provisions of section 23 of the Hindu Marriage Act.
At this stage, we may refer to the decision of the Rajasthan High Court in the case of Dr. Rajneesh v. Savita reported at AIR 2003 Rajasthan 280 and more particularly, the observations made at para 10, which reads as under:
10.
Learned counsel for the petitioner next contended that when there is a ground available for grant of the decree, then it is not necessary to find out who is guilty of committing the cruelty and desertion and the Court can grant the decree for divorce without finding who is the person actually guilty. Learned counsel for the petitioner relied upon the Division Bench judgment of this Court delivered in the case of Shimla Devi v. Kuldeep Sharma reported in 1999 DNJ (Raj) 249 : (AIR 1999 Raj 181) (supra). This submission of learned counsel for the petitioner is also devoid of any force. First of all, if the submission of learned counsel for the petitioner is accepted, then it will result into holding that a person committing cruelty and deserting spouse may also take benefit of his or her own wrong to get rid of his or her spouse and may also take benefit in the divorce petition, which has been filed due to fact that the non-applicant himself to get rid of his or her spouse compelled other to file divorce petition and thereby that wrong doer will get what he should not have got this will be absolutely against the public policy. The public policy provides that the Courts are not meant for giving relief to the wrong doers. Secondly, the legislature specifically took care of this situation particularly in the divorce petition by framing Sub-clause
(a) of Sub-section (1) of Section 23 of the Act of 1955, which specifically provides that before passing the decree for divorce, the Court shall record its satisfaction regarding existence of the ground of divorce and further shall see that the wrong doer is not taking benefit by getting the decree of divorce, therefore, in any count such submission cannot be accepted.
It is true that the facts of the case before the Rajasthan High Court were different, but in our view, the question of application of the public policy would remain the same. It is rightly said that the public policy provides that the Courts are not meant for giving relief to the wrongdoers and further that when specific mode is provided for exercise of the discretion and the exercise of the power for issuing the decree of divorce, the Court must also be satisfied that the wrongdoer is not taking benefit by getting the decree of divorce. In our view, the learned Judge of the Family Court is guided by the substance of the aforesaid inasmuch as the learned Judge has observed that the appellant cannot take advantage of his wrong and further that there was no sufficient proof for desertion and the another that the appellant himself was having illicit relation since 1983-1985 with one Meenaben much prior to the filing of the decree of divorce. In our view, if the discretion has been exercised and the decree of divorce is declined, on that ground, such an exercise of the power cannot be said to be erroneous on the part of the lower court.
Apart from the above, we find that even on the aspect of the evidence for desertion, the same was not sufficient to prove the desertion made by the respondent as alleged in the petition for divorce. The Court could not and has rightly not ignored the important aspect that after the so-called desertion, alleged upon the wife, the appellant-husband was living with one lady Meenaben by keeping illicit relation and not only that but children were also born out of the said relation. Such an aspect was admitted in the cross-examination by the appellant. Under these circumstances, it cannot be said that the finding recorded by the learned Judge in not believing the say of the appellant for the alleged ground of desertion can be said as erroneous.
In view of the aforesaid observations and discussions, we do not find that the judgment & order passed by the Family Court which is impugned in the present appeal deserves to be interfered with. Hence, the appeal is meritless. Therefore, dismissed. Considering the facts and circumstances, no order as to costs.
(JAYANT PATEL, J.) (Z.K.SAIYED, J.) bjoy Page 7 of 7