Ravindra Marutrao Shelar vs Kalpana Ravindra Shelar
2002 Latest Caselaw 467 Bom

JUDGMENT

H.L. Gokhale, J.

1. Heard Mr. Joshi for the appellant and Mr. Kshirsagar for the respondent. We would like to record that before proceeding to hear the appeal finally, we tried to see if the matter could be settled amicably; but our efforts failed.

2. This appeal seeks to challenge the judgment and order dated 22nd April, 1996 passed by the First Family Court, Pune dismissing the Petition No. A-772/1993 filed by the appellant.

3. The appellant and the respondent were married on 17th December, 1987. In the year 1990, the appellant filed Petition No. 136 of 1990 in Fourth Family Court, Pune for divorce to which a counter claim for restitution of conjugal rights was filed by the respondent herein. The Family Courts dismissed the said petition filed by the appellant and decreed the one filed by the respondent wife. Thereafter the appellant has proceeded to file Petition No. A-772/1993 seeking divorce under Section 13(lA)(ii) of the Hindu Marriage Act, 1955 which provides that either party of the marriage may present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights.

4. In the petition, it was contended by the appellant that after the decree of restitution of conjugal rights was obtained by the respondent wife, one year had passed and since there was no cohabitation between the appellant and the respondent, the appellant was entitled to decree of divorce under the said section.

5. The respondent contested the proceeding by filing written statement. Issues were framed and evidence was laid by the parties. The appellant in his own evidence stated before the Family Court as under :--

"In spite of decree of restitution it was not my desire to resume cohabitation with her."

This statement in cross-examination belies his statement made in examination-in-chief that he had gone to the house of parents of respondent wife to bring her back for the purpose of cohabitation but she refused to come with him. The appellant had also sought custody of the daughter in that proceeding, but, he had made clear in his examination-in-chief that the custody of the daughter should be given to him permanently without any right of access to the respondent wife. Otherwise, he had no objection for the custody of the daughter to remain with her permanently. Again, it is material that against this decree of restitution of conjugal rights, the appellant had preferred appeal to the High Court being Appeal No. 152 of 1993 and that appeal was dismissed. It is further pertinent to note that in cross-examination, the appellant later on specifically stated as under:--

"I am not ready to cohabit with her even today if she is ready to come with me."

6. On this evidence, the learned Judge of the Family Court came to the conclusion that there was legal bar to grant decree of divorce under Section 23(l)(a) which provides that if the Court is satisfied that any of the grounds granting relief exists but if the petitioner is trying to take advantage of his/her own wrong, the petitioner would not be entitled to decree of divorce. The learned Judge of the Family Court relying upon the judgment of this Court in Sunita Nikalje v. Rajendra Nikalje, 1996 (1) Mh.LJ. 572 dismissed the petition filed by the appellant. Being aggrieved by that judgment and order the appellant filed present appeal.

7. Mr. Joshi appearing for the appellant drew our attention to the judgment of the Apex Court in Dharmendra Kumar v. Usha Kumar, . In that matter all that happened was that the wife had refused to receive or reply the letters written by the husband. The Apex Court held that to constitute wrong within the meaning of Section 23(l)(a) of the Act, the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion. We fail to see as to how this judgment helps the appellant. In fact, this judgment has been specifically referred in the above referred Division Bench Judgment in Sunita Nikalje v. Rajendra Nikalje (supra). In para-22, the Division Bench has clarified trie ratio of the Apex Court judgment by observing as under :--

".....Mere disinclination or reluctance to accept the other spouse is not sufficient. There should be attempt of making it impossible for a spouse to resume cohabitation after the decree for restitution of conjugal rights is passed. Discretion is conferred to strike a balance. The Court should not grant the decree lightly or defeat it when the marriage is broken down completely. All this is necessary to be viewed against the backdrop of facts and circumstances of each case."

8. In the facts of the present case, we have noted that since the decree for restitution of conjugal rights was obtained by the respondent wife, the appellant was not satisfied and, therefore, he had preferred appeal to this Court which was dismissed. Thereafter taking advantage of the very decree he filed the above petition for divorce after one year contending that there is no cohabitation. However, in his own evidence he has admitted that he was not willing to resume cohabitation with his wife. He had shown a positive disinclination to her by stating that if daughter was to made available in his custody the wife should not be given access to the daughter, otherwise, he was prepared to forgo the custody of the daughter. In the cross-examination of the respondent wife, there is no suggestion from the appellant that he had gone to her parents residence to take her back. On the other hand, the respondent in her evidence deposed that she had gone to the residence of her husband at the time of Diwali of 1992. Her husband, his sister and mother were found sitting in the house. In spite of request they refused to take her inside the house. It is clear that there was non-compliance of decree and positive wrong on the part of the appellant. He is trying to take advantage of his own wrong. In this situation, the learned Judge of the Family Court was right in concluding that there was a legal bar in granting the decree.

For the reasons stated above, we do not find any error in the judgment of the Family Court. The appeal is accordingly dismissed with no order as to costs.

C. C. Expedited.