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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:

L...I...T.......T.......T.......T.......T.......T.......T..J 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,@@             JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ District  Ganganagar  according  to   the  Hindu  rites  and@@ JJJJJJJJJJJJJJJJJJJJ 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@@                         JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Ganaganagar or she expressed any dissatisfaction on her part@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 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@@                  JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ conclusion  that  there  existed  illegitimate  relationship@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 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/-.