Punjab-Haryana High Court
Sukhvinder Kaur vs Dilbagh Singh on 1 March, 1995
Equivalent citations: I(1997)DMC118
Author: Sarojnei Saksena
Bench: Sarojnei Saksena
JUDGMENT Sarojnei Saksena, J.
1. The appellant wife has come up in appeal assailing the judgment and decree dated 25.1.1991 passed by the Additional District Judge, Hoshiarpur, in HM Case No. 20 of 1990 filed Under Section 13(1-A)(ii) of the Hindu Marriage Act, (for short 'the Act').
2. The brief facts of the case are that the appellant was married to the respondent according to Sikh rites in September, 1984. Thereafter, they resided together and cohabited. But she could not give birth to any child in this wedlock. They lived together for two years only. Since then they are living separately.
3. Dilbagh Singh respondent filed HM Case No. 2 against the appellant Under Section 9 of the Act for restitution of conjugal rights on 19.9.1986. Appellant Sukhvinder Kaur filed HM Case No. 4 of 1987 against the respondent Under Section 13 of the Act for dissolution of marriage by a decree of divorce on 7.2.1987. Born these cases were decided by a single judgment dated 4.3.1989 delivered by Mr. J.C. Aggarwal, Additional District Judge, Hoshiarpur.
4. On 27.3.1989 the appellant filed appeal (F.A.O. No. 58-M of 1989) against the aforesaid judgment and decree allowing the respondent's petition filed Under Section 9 of the Act. On the same day, she also filed another appeal (F.A.O. No. 57-M of 1989) against the judgment and decree whereby her petition Under Section 13 of the Act was dismissed. On 17.4.1990 the appellant filed another HM Case No. 20 of 1990 Under Section 13(l-A)(ii) of the Act seeking dissolution of marriage by a decree of divorce on the ground that though a decree of restitution of conjugal rights has been passed on 4.1.1989, but there has not been any restitution of conjugal rights between the parties.
5. The respondent filed written statement and inter alia pleading that the appellant petitioner is estopped by her own act and conduct from filing the petition. She has already filed an appeal against the said decree which is pending in the High Court. Hence, on the basis of that very decree, she cannot claim divorce until and unless she withdraws that appeal. It is also alleged that when he filed the aforesaid petition Under Section 9 of the Act, as a counter-blast, she filed another petition Under Section 13 of the Act. Both these petitions were decided by the common judgment. Her petition was dismissed and his petition was decreed. She has challenged both these decisions and her both these appeals are pending in the High Court. He further alleged that after the said decree, the parties resumed cohabitation. He met the appellant in his fields of Delhi Chak where she felt repentant and they cohabited thrice in the Kotha of his tubewell. She also advised him not to withdraw his execution petition (which he had filed earlier to execute the said decree) with a view to compel her parents to send her back to her matrimonial home. She filed a petition against him Under Section 125, Cr.P.C. which was also dismissed. Even the Revision filed against that order was dismissed as withdrawn.
6. Parties adduced evidence in support of their pleadings. The Trial Court came to the conclusion that the respondents has failed to prove that after passing of the said decree they resumed co-habitation thrice in the Kotha of his tube well, but the appellants petition was dismissed on the ground that the appeal filed by her against that very decree is pending in the High Court and, therefore, it cannot be held that the decree passed on 4.3.1989 has become final.
7. The appellant's learned Counsel vehemently argued that during the pendency of that appeal period of one year has elapsed after the passing of the decree dated 4.3.1989. The appellant is entitled to get a decree of divorce on this ground as the respondent has utterly failed to prove that after the said decree they resumed cohabitation. He also made it clear that today (9.2.1995) the appellant has withdrawn her Appeal No. 58-M of 1989. Therefore, the Trial Court's decree has become final and thus there is no legal bar in granting divorce decree in her favour Under Section 13(l-A)(ii) of the Act.
8. The respondent's learned Counsel strongly stressed that the appellant cannot take advantage of her own wrongs. In view of the provisions of Section 23 of the Act, the decree prayed for cannot be granted in her favour. During arguments, he conceded and rightly so that the respondent could not prove that after passing of the said decree, there was any co-habitation between the parties. According to him, after marriage, the appellant behaved cruelly with the respondent. She is guilty of desertion and despite the decree obtained by the respondent Under Section 9 of the Act, she failed to come back to him and resume cohabitation. Now on that count alone, she cannot claim decree of divorce. It is further pointed out that during the pendency of Appeal No. 53-M of 1989 she obtained a stay order on 19.9.1990. The petition O.M. No. 6632-C II of 1990 for granting stay is on the file of Appeal No. 57-M of 1989 instead of placing the same in Appeal No. FAO No. 53-M/89 the stay order is also in the file of FAO No. 57-M/89, while in fact that petition C.M. No. 8632-CII/90 was filed in FAO No. 58-M/89 though by mistake F.A.O. N. is wrongly written asF.A-O.No.57-M of 1989. Therefore, her petition filed Under Section 13(1-A)(ii) of the Act was premature on 17.4.1990 when it was presented in the Court. As now she has withdrawn her appeal against the decree passed in his favour, the Trial Court decree is merged in appellate decree because appeal is a continuation of the suit or proceeding, hence the statutory period of one year as laid down Under Section 13(l-A)(i) of the Act will commence from 9.3.1995. Thus, on all these counts, her petition filed Under Section 13(l-A)(ii) of the Act cannot be allowed.
9. No doubt the appeal is a continuation of suit or proceeding. Decree as defined in Section 2(2) of Civil Procedure Code means an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in the suit. In this case the appellant has withdrawn her Appeal No. 58-M of 1989 by which she has assailed the decree passed Under Section 9 of the Act, thereby this Court was neither called upon nor required to adjudicate any question in controversy between the parties. The resultant effect was that the decrees passed by the Trial Court was neither required to be reversed, modified or confirmed. In fact nothing was required to be done in regard to that decree and no appellate decree was required to be passed and none is passed. The dismissal of the appeal as withdrawn would merely amount to the recognition of the existing decree and the appellant remained in the same position as if she had not appealed at all. In this view of the matter the first contention of the respondent's learned Counsel being devoid of substance is hereby rejected.
10. So far as obtaining stay order dated 19.9.1990 in Appeal No, 57-M of 1989 is concerned, she filed a petition Under Section 154 of the Civil Procedure Code wherein she specifically mentioned that since after passing of the decree dated 4.3.1989 in the petition filed Under Section 9 of the Act, more than one year has elapsed and the parties have not resumed co-habitation, a right to obtain decree of divorce has accrued to her Under Section 13(l-A)(ii) of the Act and she is entitled to obtain it. But as the respondent is adopting coercive methods for demolishing her this valuable right, it is prayed that till the pendency of the appeal, execution proceedings pending before the Additional District Judge, Hoshiarpur, Under Order 21, Rule 32, C.P.C. be stayed. Even this petition was filed after one year of the passing of the decree dated 4.3.1989 for restitution of conjugal rights Under Section 9 of the Act. After passing of the said decree dated 4.3.1989, the statutory period commenced and it ended before the said stay petition was filed. Hence, on this count the appellant cannot be denied the right to claim divorce under these provisions.
11. The period of one year after passing of the decree for restitution of conjugal rights as provided Under Section 13(l-A)(ii) of the Act will not mean that the period of one year even though it has started to run already after the passing of the decree of the Trial Court, will remain stayed on the filing of the appeal and will restart after the date of passing at the appellate decree affirming the decree of the Trial Court. The merging of the Trial Courts decree in the Appellate Courts decree in the case of restitution of conjugal rights can only mean that the Trial Court dismissed the petition for restitution or conjugal rights and on appeal the Appellate Court made a decree for restitution of conjugal rights reversing the Trial Court's decree. The time of one year as mentioned in Section 13(l-A)(ii) of the Act will commence immediately after the passing of the appellate decree. It is only in that case the argument that has been tried to be advanced on behalf of the respondent will apply that the Trial Court's decree merged in the Appellate Court's decree and the time of one year will commence immediately after the passing of the decree for restitution of conjugal rights by the Appellate Court reversing the decree of Trial Court. There cannot be any other meaning of the provisions embodied in the aforesaid section. In this connection reference made by Mulla in his book "Principles of Hindu Law", 1982 Edition page 814 with reference to the words "for a period of one or upwards after the decree in Section 13(1-A) (ii) are worth quoting :
"The period mentioned in the clause would commence from the date of the passing of the decree by the Court of first stance and the same would be the date of commencement of the period when there is an appeal and the decree is confirmed. Where, however, the Court of first instance has dismissed the petition and in an appeal a decree of judicial separation has been passed, the period would commence from the date of decree of the Appellate Court."
12. In S.C. Manchanda's Law and Practice of Divorce' 4th Edition 1973, 566, it has been observed that two years period Under Section 13(l-A)(ii) of the Act which is now substituted by one year by amendment of 1976 is to be counted from the date of original decree. The fact that appeal has been filed (which is ultimately dismissed) does not enlarge the time. Thus I am constrained to hold that the period of one year as referred to in this section will commence to run immediately from the date of passing of the decree for restitution of conjugal rights and not from any other date.
13. So far as the last contention with regard to Section 23(l)(a) of the Act is concerned, in my considered view, even that cannot be upheld. After the amendment in the Act made in 1976 the question is no longer who obtained the decree for restitution of conjugal rights or for judicial separation or who was at fault previously or who is at fault now. The question is not of fault at all. The question is, have the parties been able to come together after the said decree. If they have failed to re-unite, either party, may seek divorce irrespective of whose fault it was that they did not come together. The grounds for divorce Under Section 13(1-A) unlike the grounds of divorce Under Section 13(1) are not based on any present matrimonial wrong or disability. In Bimla Devi v. Singh Raj, A.I.R. 1977 Punjab and Haryana 167, this legal position is clarified. It is held that:
"Before 1984 the whole of the scheme of the Act in relation to decree for restitution of conjugal rights, judicial separation and divorce, was based on die concept of wrong and disability. The Court was not to concern itself with the fact of break down of the marriage, but with who had committed wrong or who was suffering from disability. It was in the context of the concept of wrong disability that Section 23(l)(a) provided that the Court shall decree relief under the Act only if any of the grounds for granting relief existed and the petitioner was not in any way taking advantage of his or her own wronger disability, for the purpose of such relief. The concept of wrong disability which was hitherto the sole heads of the relief under the Act has now, in part, given way to the concept of a broken-down marriage irrespective of wrong or disability."
14. Further it is to be noted that the respondent obtained the decree dated 4.3.1989, in his favour for restitution of conjugal rights. If the appellant has deserted him or committed any other matrimonial wrong against him, the respondent cannot take advantage of that now. If she has failed to comply with the decree, that cannot fell within the ambit of wrong or disability Under Section 23(l)(a) of the Act. She could not be said to be taking advantage of her own wrong merely because she failed to comply with the decree of restitution of conjugal rights. The said wrong was committed much before the passing of the decree for restitution of conjugal rights. If she is living separate from the respondent, it cannot be regarded as Wrong as used in this section of the Act because no injury is caused to the respondent. The respondent has neither pleaded nor proved that after the passing of the decree, the appellant has committed any such wrong. If she has preferred appeal against who said decree dated 4.8.1989, it cannot be said that she has committed a wrong as contemplated Under Section 23(1)(e) of the Act, if a party avails of alleged remedy available to him or her under the Statute, it cannot be said that he or she has committed a wrong. Hence, I find that the appellant has withdrawn her Appeal No. 58-M of 1989, the decree passed by the Trial Court on 4.3.1989 allowing the respondent's petition for restitution of conjugal rights has become final. The statutory period is also over. There is no other legal impediment in the way of the appellant for not obtaining decree of divorce Under Section 13(1-A)(ii) of the Act. And so I find. No other point is pressed before me.
15. Consequently, the appeal is hereby allowed. The Trial Court impugned judgment and decree are set aside, instead a decree of divorce is passed in favour of the appellant Under Section 13(l-A)(ii) of the Act. No order as to costs.