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CASE NO.:

Appeal (civil) 14740 of 1996

PETITIONER:

CHETAN DASS APPELLANT

Vs.

RESPONDENT:

KAMLA DEVI RESPONDENT

DATE OF JUDGMENT: 17/04/2001

BENCH:

D.P. Mohapatra & Brijesh Kumar

JUDGMENT:

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BRIJESH KUMAR, J.

This is an appeal by the husband challenging the

judgment and order passed by the Rajasthan High Court,

upholding the judgment passed by the District Judge,

Sriganganagar, dismissing the petition of the appellant

under Section 13 of the Hindu Marriage Act, 1955 praying for

dissolution of marriage by granting a decree of divorce.

The appellant, Chetan Dass, and the respondent, Smt.

Kamla Devi, were married on November 30, 1976 at Vijaynagar,@@

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District Ganganagar according to the Hindu rites and@@

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rituals. The appellant was serving as Compounder in the

Medical Health Department in the State of Rajasthan. After

the marriage, the respondent was taken to Kirawad, the

original village of the appellant, where she stayed for

about 8-9 months. The appellant was posted in Government

Hospital in Hanumangarh. He had been visiting his village

home off and on. According to the appellant, since his

village house was a kucha structure with insufficient

residential accommodation, the respondent was not happy as

she came from better background and standard of living.

Therefore, she had always been interested in living with her

parents in Vijaynagar. It is also the case of the appellant

that the parents of the respondent always desired that he

may get himself transferred to Vijaynagar and, for that

purpose, many items of presentations in dowry at the time of

marriage, for example, bed and bedding, sofa set, almirah

and golden jewellery etc. were retained at Vijaynagar. It

was, however, not possible for the appellant to live at

Vijaynagar. The marriage of DW-3, Ravi Kumar, the brother

of Kamla Devi, was to take place in November, 1977 and, in

that connection, she left for her parents house at

Vijaynagar in October, 1977. She did not return after the

marriage of her brother despite requests made by the

appellant and his parents for her return. On the other

hand, it is stated that she started making allegations

against the appellant for leading an adulterous life. The

appellant felt mentally tortured on such false allegations.

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He, therefore, filed an application under Section 13 of the

Hindu Marriage Act after about 2 years of the marriage but

later the relations between the two improved. The

appellant, therefore, got his petition for divorce

dismissed. Kamla Devi started living at the residence of

Chetan Dass in Kirawad and they had also consummated their

marriage. The case of the appellant further is that as

desired by Smt. Kamla Devi, Chetan Dass brought her to

Ganganagar and both started residing in Ganganagar. But

this could not pull on for long and the respondent is said

to have always been pressurising the appellant to

permanently reside in Vijaynagar. After some time, Lokuram,

father of the respondent, took her back to Vijaynagar. All

efforts made by the appellant, his relatives and members of

their community failed to persuade Kamla Devi to return to

live with Chetan Dass any more. According to the appellant,

the brief period during which Kamla Devi had changed her

attitude and had started living with him was not a genuine

gesture on her part or an effort to live together rather it

was for the purpose that the appellant got his divorce

petition dismissed. The relations between the two further

deteriorated and a complaint is also said to have been filed

by the respondent under Section 494 read with Section 120-B

IPC. According to the appellant, the respondent had been

keeping away from the company of the appellant and had not

been discharging her matrimonial obligations. Such attitude

on her part ultimately resulted in the filing of a petition

by the appellant for restitution of conjugal rights in the

year 1982. The respondent filed her written statement

denying the allegations made against her and further stated

in the reply that the appellant had been carrying on

illegitimate relationship with one Ms. Sosamma Thomas, a

nurse in the hospital. According to the appellant, the

allegations made by the respondent mentally tortured him and

looking to her conduct and behaviour in deserting him

without any reasonable cause, he got the petition amended by

moving an application under Order 6 Rule 17 CPC which was

allowed, making a prayer for dissolution of marriage

converting the petition from one under Section 9 to Section

13 of the Hindu Marriage Act on 23.7.1986.

The respondent contested the petition and refuted the

allegations made against her. According to her, she never

objected to or expressed any dissatisfaction on account of

alleged uncomfortable stay at Kirawad. On the other hand,

she stayed there with the parents of the appellant without

any objection. Her main grievance was with regard to the

relationship which, according to her, exists between the

appellant and Ms. Sosamma Thomas who is a nurse in the

hospital. The trial court, on the basis of pleadings,

framed two issues :-

(1) Whether Kamla Devi has deserted the plaintiff

Chetandas for two years prior to the filing of the

application and thus applicant is entitled for a decree of

dissolution of marriage?

(2) Whether the respondent Kamla Devi treated the

plaintiff Chetandas with cruelty if so, the plaintiff is

entitled to dissolve his marriage with respondent by decree

of divorce?

The third issue was about the relief to which the

plaintiff may be found entitled to.

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The petitioner-appellant examined only himself in

support of his case. The respondent besides herself

examined her father Lokuram -D.W.1, D.W.-3 Ravi Kumar, her

brother and D.W.- 4 Banwari Lal.

The trial court considered the matter in great details

in the background of the evidence available on record. The

respondent Smt. Kamla Devi stated in her statement that the

allegations made against her that she was unwilling to live

with the petitioner and his parents at Kirawad was

incorrect. As a matter of fact, according to her, she had

no complaint whatsoever against the parents of her husband

and had been staying there with them in Kirawad without any

difficulty. She also denied the allegations that she wanted

Chetan Dass to live permanently in Vijaynagar. In the year

1980, when the appellant had taken her to Ganganagar to live

with him on the persuasion of his father and others, the

nurse Sosamma Thomas was living in the upper storey of the

same building. The sister of Chetan Dass was also sent to

accompany the respondent, perhaps with an idea that it may

bring some normalcy in the conduct and behaviour of Chetan

Dass. But despite that, the case of the respondent has been

that Chetan Dass normally lived in the upper storey with

Sosamma Thomas and has been taking his food and sleeping

with her. It was against all norms and an open defiance to

the matrimonial relationship. Yet another fact which finds

place on the record is that on the efforts made at the

instance of the father of the respondent, Sosamma Thomas was

transferred outside but she did not go there to join. The

appellant again got her transferred to Ganganagar from

Nachana hospital in District Jaisalmer. During this period

Sosamma remained on leave. All efforts made by Lokuram, the

father of the respondent, and the respondent herself went in

vain and the appellant is said to have refused to leave

Sosamma Thomas though, he had made such a promise before the

other people of the community namely, Narendra Nath Gauri,

his uncle and others on the basis of which she had gone to

Ganganagar to live with him. The father of the respondent

namely, D.W.1- Lokuram, stated in his statement that so long

as his daughter stayed in Kirawad, she never made any

complaint against the behaviour of her in-laws.

The appellant only admitted that Sosamma Thomas was a

nurse posted in Ganganagar hospital and he knew her only as

one of the member of the staff. He had not denied that he

resided at 160, Mukherjee Nagar in Sriganganagar. But he

feigned his ignorance about the fact that Sosamma Thomas was

also living in the same building in the upper storey in

Ganganagar. The trial court has also observed that he could

not deny that his sister Rajrani, who was sent to live with

them in Ganganagar, had complained to his parents about his

relationship with the nurse Sosamma Thomas. The trial court

also observed that the petitioner did not examine any

witness in support of his case nor even his brother, sister

or parents. The respondent had come out with a definite

assertions that in Ganganagar, she was living with Rajrani,

the sister of Chetan Dass who had accompanied her to

Ganganagar whereas Chetan Dass was practically living in the

upper storey in the room of Sosamma Thomas and had been

taking his food and sleeping there only. The court below

had also observed that Rajrani could very well throw some

light on the state of affairs on this point.

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The respondent, Smt. Kamla Devi, also denied the

allegation that she wanted Chetan Dass to live in@@

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Ganaganagar or she expressed any dissatisfaction on her part@@

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about the standard of living of Chetan Dass in his village

Kirawad. None of the relations of the appellant namely, the

parents or brothers or sisters made any complaint against

the behaviour of Kamla Devi, besides her brother, D.W.-4

Banwari Lal had also supported her case.

The trial court thus considering all the evidence and

the facts and circumstances of the case, came to the@@

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conclusion that there existed illegitimate relationship@@

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between Chetan Dass and Sosamma Thomas. The affair was

since prior to the marriage which continued even thereafter.

It is further held that in such circumstances, it is not

possible for any self- respecting woman to live with her

husband. Besides the findings as indicated above, it has

also been found that the main allegation made by the

appellant about desertion by Smt. Kamla Devi, on the ground

that his house at Kirawad was in bad condition and their

standard of living was unsatisfactory and that she wanted

him to permanently shift to Vijaynagar, was incorrect and

baseless. Considering certain decisions, the learned Judge

held that where a wife refuses to live with the husband

having relationship with another woman, in such a situation,

the conduct of the wife cannot be termed as wilful desertion

of her husband. The reasons thus given by the respondent

for keeping away from the company of her husband has been

found to be valid whereas the reasons assigned by the

appellant for his wife being not ready to live with him,

have been found to be false. The trial court thus refused

to grant decree of divorce by dissolving the marriage.

In the appeal preferred by the appellant in the High

Court, the findings recorded by the trial court have been

upheld. The Appellate Court also made an observation that

in the facts and circumstances of the case, the best

evidence would have been of the persons living in the

neighbourhood of the couple in Sriganganagar and the

evidence of petitioners father and his sister Rajrani as

they are said to be aware of the adulterous behaviour of the

petitioner-appellant. In our view, the said observation is

quite correct. Rajrani, the sister of the appellant,

accompanied the respondent to live with the couple namely,

Chetan Dass and Kamla Devi, her brother and his wife

respectively. There is no dispute that she lived with them.

According to the respondent, the appellant had practically

been living, having his meals and staying by night, in the

upper storey of the house in occupation of Sosamma Thomas.

The Appellate Court was perfectly justified in observing

that the evidence of the appellants sister would have been

quite crucial. But she was not produced by the brother in

support of his case. The father of the appellant also did

not come to his rescue by entering into the witness box for

his son who could very well support the case of the

appellant at least to the extent, if it was true, that the

respondent was unhappy due to the alleged unsatisfactory

living condition in Kirawad. From the side of the

respondent, her father and brother had entered into the

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witness box and nothing seems to have been elicited to

disbelieve their statements or establish that they were

taking shelter under falsehood. No presumption can be

raised that they have given false evidence in favour of the

respondent being her close relations or her own kith and

kin. Apart from those persons, D.W.-4 also supported her

case. The learned Appellate Court, in our view, rightly

came to the conclusion that the relief could not be granted

to the appellant by passing a decree of divorce by

dissolving the marriage on the ground that the marriage had

broken down irretrievably.

Learned counsel for the appellant has vehemently urged

that the facts and circumstances of the case clearly show

that the relationship between the respondent and the

appellant has totally broken and there seems to be no chance

of retrieval at all. He has also emphasised on the fact

that a long period has lapsed since the marriage was

performed in the year 1976. They lived together only for a

short stint. Initially the respondent stayed in Kirawad

immediately after the marriage and remained there for 8 or 9

months and later in the year 1981 when she went to live with

the appellant in Sriganaganagar. It was also for a period

of about three months. The rest of the period they lived

apart. In such circumstances, it is submitted that it will

serve no purpose to prolong the agony and it may only be

appropriate that the bond of marriage be snapped by granting

a decree of divorce and the parties may feel relieved and

pass rest of the period of their life peacefully.

During the course of the arguments, learned counsel for

the appellant, so as to show that the allegations made

against the appellant about having illegitimate relationship

with Sosamma Thomas, submitted that the appellant is still

prepared to keep the respondent Kamla Devi with him.

According to him, the appellant never refused to live with

her. In reply, learned counsel for the respondent submitted

that the respondent was also prepared to live with the

appellant provided that he discontinued his relationship

with Sosamma Thomas. The hollowness of the submission that

the appellant was still prepared to keep the respondent with

him is quite apparent. It is on the record that it was on

some undertaking that the respondent was taken to Ganganagar

by the appellant to live with him but there she was

subjected to humiliating treatment meted out to her by the

appellant himself having his food only in the room of

Sosamma Thomas and staying there during night leaving his

wife and sister alone on the ground floor. With this kind

of attitude, the offer as made on behalf of the appellant is

too shallow to deserve any serious thought. At the same

time, the condition on which the respondent is prepared to

live with him seems to be quite justified, that is to say,

she is still prepared to live with him provided he behaves

and snaps his relationship with the other woman. It is

apparent that it is the own conduct of the appellant which

lead the respondent to live separate from the appellant.

None else, but the appellant alone, is to be blamed for such

an unhappy and unfortunate situation. The findings of

facts, as recorded by the two courts below, do not deserve

to be disturbed in any manner nor they have been seriously

assailed before us.

As observed earlier, the learned counsel for the

appellant has merely stressed for grant of relief on the

ground that the marriage has completely failed and has

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irretrievably broken. In connection with this submission,

it may be observed that it all depends on the facts and

circumstances of the case as to in which case it would be

appropriate to grant the relief as prayed.

Matrimonial matters are matters of delicate human and

emotional relationship. It demands mutual trust, regard,

respect, love and affection with sufficient play for

reasonable adjustments with the spouse. The relationship

has to conform to the social norms as well. The matrimonial

conduct has now come to be governed by Statute framed,

keeping in view such norms and changed social order. It is

sought to be controlled in the interest of the individuals

as well as in broader perspective, for regulating

matrimonial norms for making of a well knit, healthy and not

a disturbed and porous society. Institution of marriage

occupies an important place and role to play in the society,

in general. Therefore, it would not be appropriate to apply

any submission of irretrievably broken marriage as a

straight jacket formula for grant of relief of divorce.

This aspect has to be considered in the background of the

other facts and circumstances of the case.

Learned counsel for the appellant has placed reliance on

certain decisions in support of his request to grant the

relief on the ground that the marriage has irretrievably

broken down. The decision of this Court reported in (1993)

4 SCC 232 [Chanderkala Trivedi (Smt). vs. Dr. S.P.

Trivedi] has been cited. The facts of this case are

peculiar in nature. The husband filed a petition for

divorce on the ground of cruelty at the hands of the wife.

The wife, in reply, made allegations of adultery against the

husband whereas the husband had made allegations against

undesirable association of the petitioner-wife with young

boys. The trial court though dismissed the petition but

found that the behaviour of the wife was not that of a Hindu

married woman. This has been the finding of all the courts

below. There were thus counter allegations of adulterous

life of the husband with another lady doctor whereas

undesirable association of the wife with other young boys.

As observed earlier, the findings were recorded by all the

three courts and the High Court in appeal granted the relief

of divorce on the ground of cruelty. This Court, however,

ordered for deletion of the findings recorded in the

judgments of all courts against the wife but maintained the

decree of divorce and dismissed the appeal. Such facts and

circumstances of the case relied upon by the appellant are

not applicable to the present case. The factual position is

entirely different. Both the parties, according to their

respective allegations, have been sailing in the same boat.

Looking to the facts and circumstances of the case, this

Court ordered for deletion of the findings against the wife

while maintaining the decree. This case, in our view, has

no application to the present case.

The other case cited by the learned counsel for the

appellant is reported in (1995) 2 SCC 7 [Romesh Chander vs.

Savitri (Smt.)]. In that case, at the very outset, it may

be observed that the Order was passed considering the facts

and circumstances of the case in exercise of power under

Article 142 of the Constitution. Allegations were made by

the wife against the husband about his mixing with

undesirable girls but no evidence was given to support those

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allegations nor the same were found proved. The husband

however had expressed his remorse on his conduct and neglect

of his wife. It was considered that where the marriage had

broken down emotionally and practically, looking to such

facts and circumstances, the marriage was dissolved

exercising powers under Article 142 of the Constitution.

Yet another case relied upon by the learned counsel for

the appellant is reported in (1984) 4 SCC 90 [Smt. Saroj

Rani vs. Sudarshan Kumar Chadha]. In our view this case is

also not applicable to the present case. The husband did

not obey the decree of restitution of conjugal rights

obtained by his wife to which he had not objected but later

on, he filed a petition for divorce under Section 13

(1-A)(ii) on the ground that one year had passed from the

date of decree of restitution of conjugal rights but no

actual co-habitation had taken place between the parties. A

plea was raised that the husband was taking advantage of his

own wrong as he had not resumed his matrimonial relationship

even after the decree of restitution of conjugal rights

instead filed a petition for divorce, that the parties had

not cohabited even after one year of passing of the decree.

This Court observed that a decree of restitution of conjugal

rights was executable and further observed that the

expression in order to be a wrong within the meaning of

Section 23(1)(a) the conduct alleged has to be something

more than mere disinclination to agree to an offer of

reunion, it must be misconduct serious enough to justify

denial of the relief to which the husband or the wife is

otherwise entitled to. On facts also, it was found that

such a plea was not entertainable since no new facts were

brought on record even by means of an amendment that the

husband had, by way of a scheme, agreed for passing of a

decree of restitution of conjugal rights with a view to

ultimately claim divorce by not resuming the matrimonial

relationship. In the present case, the allegations of

misconduct of adulterous behaviour have definitely been made

by the wife which have been found to be correct. Hence,

this case would also be of no help to the appellant.

Learned counsel for the respondent submits that in

certain situations, relief would be denied to the petitioner

where it is found that he is taking advantage of his own

wrong for the purposes of making out a case to obtain the

decree. He has drawn our attention to Section 23(1) Clauses

(a), (b) and (e) of the Hindu Marriage Act which are quoted

below:-

23. Decree in proceedings.- (1) In any proceeding

under this Act, whether defended or not, if the Court is

satisfied that

(a) any of the grounds for granting relief exists and

the petitioner except in cases where the relief is sought by

him on the ground specified in sub-clause (a), sub-clause

(b) or sub-clause (c) of clause (ii) of section 5 any

way taking advantage of his or her own wrong or disability

for purpose of such relief, and

(b) where the ground of the petition is the ground

specified in clause (i) of sub-section (1) of Section 13,

the petitioner has not in any manner been accessory to or

connived at or condoned the act or acts complained of or

where the ground of the petition is cruelty the petitioner

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has not in any manner condoned the cruelty, and

(c)

(d)

(e) there is no other legal ground why relief should not

be granted, then, and in such a case, but not otherwise, the

Court shall decree such relief accordingly.

In the present case, the allegations of adulterous

conduct of the appellant have been found to be correct and

the courts below have recorded a finding to the same effect.

In such circumstances, in our view, the provisions contained

under Section 23 of the Hindu Marriage Act would be

attracted and the appellant would not be allowed to take

advantage of his own wrong. Let the things be not

misunderstood nor any permissiveness under the law be

inferred, allowing an erring party who has been found to be

so by recording of a finding of fact in judicial

proceedings, that it would be quite easy to push and drive

the spouse to corner and then brazenly take a plea of

desertion on the part of the party suffering so long at the

hands of the wrong-doer and walk away out of the matrimonial

alliance on the ground that marriage has broken down. Lest

the institution of marriage and the matrimonial bonds get

fragile easily to be broken which may serve the purpose most

welcome to the wrong-doer who, by heart, wished such an

outcome by passing on the burden of his wrong-doing to the

other party alleging her to be the deserter leading to the

breaking point.

In this case, we also find that the respondent is still

prepared to live even at this stage of her life with the

appellant but rightly on the condition that the appellant

disassociates himself from Sosamma Thomas. There has been

no cause of grievance or any allegation of objectionable

behaviour by any one except the meek plea put forward by the

husband that she was dissatisfied with the living conditions

at Kirawad and she wanted him to live in Vijaynangar. Such

allegations have been found to be incorrect. She also lived

in Ganganagar. Had only living in Kirawad been the problem,

there was no occasion for her to be dissatisfied in living

in Sriganganagar, at least none has been indicated by the

appellant.

In this case, the averments made in the petition for

obtaining a decree for divorce, namely, desertion on the

part of the wife without any reasonable cause have not been

found to be correct. The petition was liable to be

dismissed on that ground alone. The defence of the

respondent for having a justified reason to live away from

the husband has been found to be correct. Behaviour of the

appellant certainly falls in the category of misconduct on

his part. In such circumstances, it is too much on his part

to claim that he be given the advantage of his own wrong and

be granted a decree of divorce on the ground of desertion on

the part of his wife who is still prepared to live with him

provided he snaps his relationship with the other woman.

Similar offer had also been made on behalf of the appellant,

which, we have already dealt in the earlier part of the

Judgment. He perhaps prefers to snap relationship with the

respondent rather than with Sosamma Thomas. A decree of

divorce on the ground of marriage having been irretrievably

broken cannot be granted in the facts and circumstances of

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the case as indicated above.

In the result, the appeal has no merit and it is

dismissed with costs which is assessed as Rs.10,000/-.