Rajasthan High Court - Jodhpur
Anil vs Smt.Ekta on 16 May, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1957 / 2011
Anil S/o Om Prakash Kothari, age about 46 years, R/o Bassi, Distt.
Chittorgarh.
----Appellant
Versus
Smt.Ekta W/o Anil Kothari D/o Madhu Lal Ji Nyati, R/o Bassi,
presently residing at Sawa, Distt. Chittorgarh.
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Manish Pitaliya
_____________________________________________________
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
Judgment 16/05/2017 The instant civil misc. appeal has been filed by the appellant under Section 28 of the Hindu Marriage Act, 1955 against the judgment and decree dated 02.08.2010 whereby the application filed by the respondent/wife under Section 13 of the Hindu Marriage Act allowed and decree of divorce has been granted.
Briefly stated facts of the case are that on 17.07.2009, an application under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred as Act) was filed by the respondent/wife, before the learned trial court for getting the decree of divorce, on the ground that earlier a decree for judicial separation was passed by the court on 16.07.2008 and thereafter no resumption of cohabitation between the parties for one year, hence it was prayed by the respondent wife that decree of divorce may be passed in favour of the wife.
In pursuance of above application notices were issued to the (2 of 5) [CMA-1957/2011] appellant and thereafter a reply to the application was filed on behalf of him. Thereafter issues were framed on 01.02.2010 and case was fixed for the evidences of the applicant/wife and applicants evidences were completed on 29.03.2010 and case was fixed for the evidences of the appellant on 12.05.2010 and 13.05.2010. On 12.05.2010 and 13.05.2010, evidences of the appellant were not present, hence evidence of the appellant were closed by the court vide order dated 13.05.2010 and case was fixed for final arguments on 05.07.2010. On 17.07.2010, arguments were heard and matter was fixed for judgment on 02.08.2010 and vide judgment and decree dated 02.08.2010, the application of the respondent/wife was allowed and decree of divorce has been granted.
Learned counsel for the appellant argued due to non- communication between the appellant and his counsel, appellant was not having knowledge about the fact that the court has fixed the case for his evidence on 12.05.2010 and 13.05.2010, hence the appellant was not present on the date fixed by the court and evidences of the appellant were closed by the court below on 13.05.2010 and case was fixed for final arguments on 05.07.2010. However, on the next date i.e. 05.07.2010, appellant changed his counsel and an application was filed on behalf of the appellant that earlier evidences could not have been produced by the appellant and now appellant is ready to produce his evidences and it was further averred that looking to the principles of the natural justice, appellant may be given opportunity to lead evidences. It is submitted that reply to above application was not filed by the (3 of 5) [CMA-1957/2011] applicant/wife. However above application was dismissed by the court below on very same day and case was fixed for final arguments on 17.07.2010. It is argued that it is settled position of the laws that parties should not suffer because of his counsels mistake. In the instant case, appellant's evidences were closed only because appellant was not communicated about the fact that case has been fixed for his evidences on 12.05.2010 and 13.05.2010. However, on next date appellant has changed his counsel and filed an application for giving opportunity to lead his evidences but the application was dismissed by the learned trial court. Thus, it is clear that there was no fault of appellant, hence, in view of above, on opportunity should be granted to the appellant to lead his evidences.
It is further argued that it is clear from the reply to application, filed by the appellant that the respondent/wife has played fraud with the appellant. It has been specifically pleaded by the appellant in the written statement that during earlier proceedings, compromised was arrived between the appellant and his wife and they started to live together and appellant was assured by the respondent/wife that the case will be withdrawn by her, hence after settlement, appellant did not appear before the court in that case and ex-parte decree was passed in that case, thus decree was obtain by fraud, which is void in the eye of law and on the basis of above decree, present application has been field and decree has been granted on the basis of earlier decree, which was obtained by the respondent/wife by playing fraud with the appellant. It is further argued that the respondent/wife has (4 of 5) [CMA-1957/2011] married with other person i.e. Nand Lal on 05.01.2009, which is clear from the Ex.A-1 and further A.W.-2 Krishna, who is sister of respondent/wife, has admitted that respondent/wife Ekta also known as Santosh, thus in view of above, it is clear that the respondent/wife has concealed this material fact to escape from criminal liability and therefore, she is not entitled to get any relief from the court. It is also pleaded that respondent/wife has left the house only before six months, hence it cannot be said that there is no resumption of cohabitation after passing earlier decree of judicial separation for one year or more, hence, decree of divorce cannot be passed on such ground.
I have perused the judgment and decree dated 02.08.2010 and against the order dated 13.05.2010 passed by the learned District Judge, Chittorgarh as also material available on record.
In civil misc. case no.69/2007 'Smt. Ekta Vs. Anil, the Additional District Judge No.1, Chittorgarh passed a decree on 16.07.2008. The applicant Smt. Ekta appeared as AW-1 and stated that after passing of decree, no cohabitation took place with the appellant nor there is any possibility in future. AW-2 Smt. Krishna stated that after passing of decree of judicial separation on 16.07.2008, the respondent wife did not go to her inlaws house. On the basis of oral evidence which is a primary evidence it is established that the marriage between the parties has emotionally and practically dead. What is contemplated under S. 13(1-A)(i) of the Hindu Marriage Act, 1955 is that after the passing of the decree of judicial separation, they (i. e. the parties to the marriage) have not cohabited together. Merely because on (5 of 5) [CMA-1957/2011] few occasions, the parties met each other will not amount to cohabitation. Co-habitation, as defined by the Chambers 12th Century Dictionary is as under : Cohabit-- means to dwell together as husband and wife or as if husband and wife and word "cohabitant" means one dwelling with other. Since the non- resumption of cohabitation for a period of one year or upwards after passing of a decree for judicial separation is a ground under Section 13(1-A)(i) of the Act of 1955, the learned trial court has not committed an error in relying upon the aforesaid statements and passing the decree for divorce under Section 13(1-A)(i) of the Act. There is no evidence whatsoever to show that the appellant and the respondent cohabited together and therefore, I do not find any ground to interfere in the judgment and decree dated 02.08.2010 and against the order dated 13.05.2010 passed by the learned District Judge, Chittorgarh. The civil misc. appeal is without force.
Hence, the civil misc. appeal is dismissed.
(GOVERDHAN BARDHAR) J.
bjsh