Madhya Pradesh High Court
Suresh Prasad Sharma vs Smt. Ram Bai Suresh Prasad Sharma on 19 December, 1997
Equivalent citations: 1998(2)MPLJ106
JUDGMENT V.K. Agrawal, J.
1. This is an appeal by the appellant/petitioner, whose petition Under Section 13 of Hindu Marriage Act, against the respondent wife for seeking dissolution of marriage by a decree for divorce has been dismissed by judgment dated 3-5-1997, in Civil Suit No. 45-A/94 by the District Judge, Shahdol.
2. Undisputedly, the parties to the suit are Hindus and were married on 8-5-1966 according to Hindu custom at Village Panchgaon, Dist. Shahdol. In November, 1968, the Gauna ceremony of respondent took place, and the respondent Ram Bai came to reside with the appellant/petitioner at Village Badari, Distt. Shahdol. It is also not in dispute that the respondent-wife is living separately from the appellant-petitioner since the year 1972. The appellant/petitioner had earlier filed a petition C. S. No. 5-A/76 before the District Judge, Shahdol, for judicial separation, which was dismissed for want of prosecution.
3. Briefly stated the allegations in the present petition by the appellant/petitioner are that his marriage with the respondent- wife was never consummated as she refused to have physical relations with the appellant/petitioner. The respondent-wife had stayed with the appellant/petitioner for 3-4 days after the 'Gauna' ceremony, and thereafter, she went back to her parents' house and did not return back to the appellant/petitioner. The behaviour as above of the respondent- wife amounts to cruelty. Due to the above conduct of the respondent/non-applicant, the marital relations between the parties have ended and there is no possibility of revival of marital relationship between the parties. Hence, the petition for divorce was filed.
4. The respondent/defendant resisted the petition. She had denied that there were no physical relations between her and the appellant/petitioner. She has alleged that the appellant/petitioner had without any justification withdrawn from her company. It has also been alleged that the appellant/petitioner had extra-marital relations with one Dayarani since 1972. The appellant-petitioner has illegitimately kept her as his wife since 1976. The respondent-wife has, therefore, prayed that the petition praying for divorce be dismissed.
5. The learned Trial Court had held that the respondent-wife had never refused to have physical relations with the appellant/petitioner, and that she has not acted with cruelty with the appellant/petitioner. It has also been held that the appellant/petitioner had illegitimately kept Dayarani as his wife, and that the appellant/petitioner had neglected to bring the respondent-wife back with him. Therefore, it has been held that the respondent-wife is not living separately from the appellant/petitioner without any justification and, therefore, there was no 'desertion' by her. The petition of the appellant/petitioner was accordingly dismissed.
6. The learned counsel for the appellant/petitioner has urged that the respondent-wife herself is responsible for living separately from the appellant/petitioner and she has not assigned any reason for living separately. Therefore, it has been urged that it should have been held by the trial Court that the respondent-wife had deserted the appellant/petitioner, and a decree for divorce ought to have been granted. It has also been urged that since the parties arc admittedly living separately for a long period of about 25 years, the marriage has irretrievably broken and that itself should be a good ground for grant of decree for divorce, because there is now no possibility of revival of marital relationship between the parties.
7. None has appeared for the respondent-wife in this appeal.
8. In view of the admitted position of the case and the material and evidence on record, it is apparent that the respondent-wife is living separately from the appellant/petitioner at least from the year 1972, as has been admitted by the respondent Ram Bai in her statement in the Trial Court. Though appellant/petitioner Suresh Sharma (AW/1) in the trial Court has stated that the respondent-wife is living separately from him without any justifiable cause and did not return back to appellant/petitioner despite requests being made by him several time; however, during his cross-examination he has admitted that he himself had never gone to call the respondent-wife, but his uncle had gone there. The appellant/petitioner Suresh Sharma also admitted that he was not willing to call Ram Bai/respondent and did not want that she should live with him. He has also admitted that he had love affairs with Dayarani since 1969 when he was student, and since 1976 he has kept Dayarani as his wife. He has also candidly admitted that he is not willing to keep Ram Bai/respondent with him.
9. In the circumstances, it is clear that the appellant/petitioner had been carrying on love affairs with Dayarani since 1969 according to his own admission. He has also admitted that he is having children from her. If that be so, there is sufficient cause for the respondent-wife to live separately from the appellant/petitioner. Therefore, even if the respondent-wife is living separately from the appellant/petitioner since long, it cannot be said she had no justification for doing so. Therefore, in view of the explanation of Clause 1 of Section 13 of the Hindu Marriage Act, 1955, the act of the respondent-wife in living separately would not amount to 'desertion'. This being so, the appellant/petitioner cannot succeed in securing a decree for divorce Under Section 13(1)(ib) of the Hindu Marriage Act. Therefore, the decree of divorce to the appellant/petitioner was rightly refused by the learned Trial Court.
10. Learned counsel for the appellant/petitioner has urged that since the parties are living separately since long for a period of about 25 years, it is abundantly clear that there is no possibility that they would now reconcile. It has, therefore, been urged that since revival of broken ties of marriage being not reasonably possible, and since the respondent-wife has totally repudiated the obligation of marriage and has deprived the appellant/petitioner from her company, it would by itself be sufficient ground and justification for the grant of decree of divorce, as prayed by the appellant/petitioner.
11. Learned counsel for the appellant/petitioner has relied upon Rajendra Agrawal v. Smt. Sharda Devi Agrawal, 1992 JLJ 289 wherein it has been observed that the parties were living separately for 7 years and in view of long lapse of time, as above, there appears to be hardly any possibility of the husband and wife settling their matter amicably and coming closer to live together. Therefore, relying on the observations made in Smt. Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90 it was observed therein that essence of marriage is sharing of common life, the pleasures so also the sorrows and sufferings. Living apart for a fairly long period, is the negation of such sharing, and it was, therefore held this situation may serve as an additional justification for granting a decree of divorce, as the continuance of marriage tie may not subserve any social good. It was, however, found in the above case that ground Under Section 13(1)(i) of the Hindu Marriage Act stands established. Thus, a ground Under Section 13(1) of Hindu Marriage Act, having been established in the above case the decree for dissolution of marriage was confirmed in the facts and circumstances of that case.
12. It may be noted that the decree of divorce can only be granted in favour of the husband if he successfully establishes any of the grounds enumerated Under Section 13(1) of the Hindu Marriage Act. In other words, if none of the grounds Under Section 13(1) of Hindu Marriage Act are established, the appellant/petitioner cannot succeed in his prayer for getting a decree of divorce.
13. In the instant case, it is abundantly clear that though the respondent-wife has been living separately for a long time, there was a justifiable cause for her to do so as the appellant/petitioner had illicit relations with Dayarani since even before the marriage of the parties. In the circumstances, the appellant/petitioner himself appears to be at fault and appears to be responsible for the respondent living separately from him. In view of above, the appellant/petitioner cannot be permitted to take advantage of his own wrong and cannot succeed in getting a decree for dissolution of marriage.
14. Therefore, the contention of the learned counsel for the appellant/petitioner that decree for divorce should be granted as the respondent-wife is living separately from him for a long period of 25 years, and since there is no reasonably possibility of retrieval of marriage relationship between the parties, cannot be accepted, in view of the fact that the appellant/petitioner has failed to establish any of the grounds Under Section 13(1) of the Hindu Marriage Act. Though the respondent-wife is living separately from the appellant/petitioner, her conduct and action as above being based on justifiable ground could not amount to 'desertion' within the meaning of explanation to Section 13(1) of Hindu Marriage Act. Therefore, the respondent, residing separately by itself would not constitute a ground for 'dissolution' of marriage in the above circumstances of the case. Accordingly, the contention that the decree for divorce deserves to be granted on the ground that there is no possibility of reconciliation between the parties or that the marriage has irretrievably broken down would not constitute a ground for dissolution of marriage.
15. In a similar situation in Reynold Rajamani v. Union of India, AIR 1982 SC 1261 it has been observed by the Supreme Court as below :
"The history of all matrimonial legislation will show that at the outset conservative attitudes influenced the grounds on which separation or divorce could be granted. Over the decades, a more liberal attitude has been adopted, fostered by a recognition of the need for the individual happiness of the adult parties directly involved. But although the grounds for divorce have been liberalised, they nevertheless continue to form an exception to the general principle favouring the continuation of the marital tie. In our opinion, when a legislative provision specifies the grounds on which divorce may be granted they constitute the only conditions on which the Court has jurisdiction to grant divorce. If grounds need to be added to those already specifically set forth in the legislation, that is the business of the Legislature and not of the Courts."
In Smt. Nitu alias Asha v. Krishan Lal, AIR 1990 Delhi 1, Division Bench of the Delhi High Court has observed as under :-
"The plea made at the end by Mr. Sawatantar Kumar that since on all accounts the marriage has broken down, it may as well be dissolved by a decree of divorce also cannot be entertained because, as held by us in the earlier case : Ashok Kumar Bhatnagar, AIR 1989 Delhi 121, that irretrievable break down of marriage is not contemplated to be one of the grounds for dissolution of marriage, in the scheme of the Hindu Marriage Act, and thus by itself it cannot be taken to be a ground for decree of dissolution of marriage."
Similarly in Uma ShankarJoshi v. Smt. Rajeshwari, AIR 1991 Raj. 149, the contention that a decree for divorce should be granted on the ground that the parties to the marriage were living separately for a long period was repelled, and it has been held that no such ground is available under the Hindu Marriage Act and, therefore, the dissolution of Marriage cannot be ordered on a ground which is not specified in the Act.
Similar view has been taken in Mrs. Swaraj Garg v. K.M. Garg, AIR 1978 Delhi 296 and Smt. Smita Dilip Rane v. Dilip Dattaram Rane, AIR 1990 Bom. 84, wherein it has been laid down that simply because the marriage has broken and the parties cannot live together any longer, a decree for divorce should not be granted, if the statute does not specifically provide for it.
16. Clearly therefore the Court has jurisdiction to grant a decree for divorce to the husband only if he successfully established one of the grounds mentioned in Section 13(1) of the Hindu Marriage Act, and not otherwise.
17. In view of the above position of law, it is clear that the contention of the learned counsel for the appellant/petitioner that in view of the marriage having broken down and parties are residing separately for a long time, should be sufficient justification for allowing the petition for divorce of the appellant/petitioner, cannot be accepted. The appellant/petitioner himself being responsible for the breaking down of the marriage, cannot succeed in his petition, and cannot in any way get the benefit of his own wrong. His petition therefore has been rightly dismissed by the Trial Court.
18. Accordingly, the appeal has no merit and is therefore, dismissed. Parties shall bear their own costs.