Kerala High Court · 2009

P.R.RAMAN & P.S.GOPINATHAN, JJ.-------------------------------MAT Appeal Nos.100 & 101 of 2004-------------------------------Dated this the 19th February, 2009J U D G M E N TRaman, J.The appellant in Mat.Appeal No.100 of 2004 is thepetitioner in O.P.No.671 of 1997, on the file of Family Court,Thrissur. That is a petition for divorce filed by the husbandunder Sections 13(1)(ib) & 13(1-A)ii of the Hindu Marriage Act,1955, (hereinafter referred to as 'the Act' for short) on theground that there was no restitution of conjugal rights asbetween the parties for a period of one year or more than oneyear after passing of the decree. In this case, admittedly, apetition for restitution of conjugal rights filed by the husband asO.P.No.213 of 1995 was decreed on 31.8.1995. Thereafter, thepresent original petition was filed on 20.10.1997. Therefore,there is no dispute that the statutory period of more than yearrequired to pass a decree under Section 13(1-A)ii of the Act is Mat.Appeal.Nos. 100 & 101 of 20042satisfied, provided, it is proved that there has been no restitutionof conjugal rights as between the parties. It was contended bythe husband, appellant herein, that he is entitled to get a decreefor divorce under Section 13(1-A)ii of the Act, since the wifefailed to comply all the conditions for restitution of conjugalrights. Though in Ext.B5 reply notice given by the wife to thenotice issued by the husband, Ext.B3, the wife asserted that shewas ready to resume cohabitation and further alleged that it wasthe husband who was not willing to resume cohabitation. 2. The court below noticed that the husband hadno case that he has taken any steps for restitution of decree forconjugal rights in terms of Order XXI Rule 33 of the Code of CivilProcedure. But after the decree obtained by the husband forrestitution of conjugal rights, wife had expressed her willingnessfor cohabitation, but the husband never filed execution of thedecree. Therefore, the court below thought that the husbandcannot seek divorce on the plea of failure to resume cohabitation,even though his conduct would unambiguously made clear his Mat.Appeal.Nos. 100 & 101 of 20043intention in not to have resumption of cohabitation. It is theonly ground on which it was held that he was not entitled to geta decree for divorce. The court below also went to hold thathusband obtained a decree for restitution of conjugal rights exparte, there is no ground to deny maintenance to wife andmaintenance was ordered. That part of the order grantingmaintenance was not the subject matter in this appeal, and in theabsence of any such contention, it is not necessary to considerthe relief granted regarding the maintenance. Therefore, thefinding is that though the statutory period required for grantinga divorce decree in terms of Section 13(1-A)ii of the Act issatisfied in this case, it is presumed that in spite of reply noticedby the wife, Ext.B5, to resume cohabitation, the appellant-husband did not favourably responded, nor did he seek toexecute the decree of restitution of conjugal rights by filing anyexecution petition. In other words, in the order obtained by himearlier for restitution of conjugal rights, if as a matter of fact thewife was at default, the appellant could have taken steps to Mat.Appeal.Nos. 100 & 101 of 20044execute the order and the failure to take such steps to executethe order is considered to be an important factor to show thatthe default was on the part of the appellant. 3. It is pointed out by the learned counselappearing for the appellant that Ext.B3 is a notice issued by himearlier to the petition filed for restitution of conjugal rights, andExt.B5 was the reply sent by his wife. Therefore, reference toExts.B3 and B5 in the present proceedings to draw any inferenceagainst the appellant may not be correct. It is true that theappellant did not take any steps for executing the decree ofrestitution of conjugal rights. The court below entered a specificfinding, as to the conduct of the parties, after obtaining thedecree for restitution of conjugal rights, that either of them orboth of them were not prepared to cohabitate. But theallegation of the wife is that she remained to reside away fromthe husband even before filing the earlier proceedings, is due tothe cruelty meted out to her by him. The fact remains that priorto the filing of the petition of restitution of conjugal rights or even Mat.Appeal.Nos. 100 & 101 of 20045after obtaining a decree, the parties were residing separate.Thus, for the past several years, there was no re-union orcohabitation. This long distance of time is a clear indication thatthe matrimonial tie has irretrievably broken and that no purposewill be served by imposing continuance of such relationship, asheld by the Apex Court in Naveen Kohli v. Neelu Kohli (2006(4) SCC 558) . It was held by the Apex Court that when partiesare living separately for a sufficient length of time and one ofthem brings a petition for divorce decree, it can be presumedthat marriage has broken down irretrievably. It will be againstthe interest of both the parties as well as against interest of thesociety to refuse to grant decree for divorce in such cases. 4. Yet another ground on which divorce is refusedis that when the appellant was at fault in not taking steps forcohabitation pursuant to the decree for restitution of conjugalrights, he cannot take advantage of his own fault and seek fordivorce under Section 13(1-A)ii of the Act . But such contentionhas been negatived by the Apex Court in Smt.Saroj Rani. v. Mat.Appeal.Nos. 100 & 101 of 20046Sudarshan Kumar Chadha (AIR 1984 SC 1562) andDharmedra Kumar v. Usha Kumar (1977 (4) SCC 12),wherein it was held that failure on the part of the appellant toexecute the decree for restitution of conjugal rights will not dis-entitle him for a decree of divorce. (Also see this Court'sdecision in Radhakumari v. Dr.K.M.K.Nair (AIR 1988 Kerala 235)At the same time, as held by the Apex Court in HirachandSrinivas Managaonkar v. Sunanda (AIR 2001 SC 1285), it isequally not mandatory or compulsory to grant a decree fordivorce merely on the allegation of fulfillment of the conditionunder Section 23 of the Hindu Marriage Act. 5. On a careful consideration of the abovedecisions , in the light of the facts and circumstances pointedout above, we are however satisfied that the marriage tie isbroken as both sides are not prepared to resume cohabitationand it will be penalising to compel the tie alone to continue andit will be against the interest of the society to do so. Mat.Appeal.Nos. 100 & 101 of 200476. In the result, Mat. Appeal 100 of 2004 is allowedand the order passed by the Family Court, Thrissur, inO.P.No.671 of 1997, is set aside and we decree the suit asprayed for. Divorce granted. 7. Mat.Appeal. 101 of 2004 arises out of an orderpassed by the Family Court in a claim for return of the goldornaments and money by the wife and also for past maintenance.The court below by the impugned order under appeal,O.P.No.459/1998, allowed the claim, directing the appellantherein to pay past maintenance at the rate of Rs.400/= permonth for the last 36 months from the date of filing the petition,and to pay the value of the gold ornaments to a tune ofRs.55,000/= and Rs.10,000/= by the husband. 8. We have gone through the judgment and heardthe arguments of the learned counsel appearing on either side.The court below has meticulously considered the evidence onrecord and it is only thereafter that the findings were made. Mat.Appeal.Nos. 100 & 101 of 20048Though 15 sovereigns was ordered to be returned, onlyRs.55,000/= is calculated as its value. Even otherwise, whilegranting a divorce decree, under Section 35 of the HinduMarriage Act, the court is entitled to pass a decree formaintenance. In such circumstances, we do not find, it is a fitcase for interference. Accordingly, Mat.Appeal.No.101 of 2004 isdismissed. In the result, Mat.Appeal No.100 of 2004 is allowedand Mat.Appeal No.101 of 2004 is dismissed. P.R.RAMAN, JUDGEP.S.GOPINATHAN, JUDGE.nj.