Dass Vs. Kamla Devi  Insc 217 (17 April 2001)
Mohapatra & Brijesh Kumar Santosh Hegde, J. Brijesh Kumar, J.
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.
appellant, Chetan Dass, and the respondent, Smt. Kamla Devi, were married on November 30, 1976 at Vijaynagar District Ganganagar
according to the Hindu rites and 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.
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.
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.
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 :-
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?
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.
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.
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.
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.
respondent, Smt. Kamla Devi, also denied the allegation that she wanted Chetan Dass
to live in Ganaganagar or she expressed any dissatisfaction on her part 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.
trial court thus considering all the evidence and the facts and circumstances
of the case, came to the conclusion that there existed illegitimate
relationship between Chetan Dass and Sosamma Thomas. The affair was since prior
to the marriage which continued even thereafter.
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.
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.
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
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
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.
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.
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.
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.
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.
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
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.
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.
aspect has to be considered in the background of the other facts and
circumstances of the case.
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.
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.
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.
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.
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
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.
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
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
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:-
Decree in proceedings.-
any proceeding under this Act, whether defended or not, if the Court is
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
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 has not in any manner
condoned the cruelty, and
(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
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
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.
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
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.
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 the case as indicated above.
result, the appeal has no merit and it is dismissed with costs which is
assessed as Rs.10,000/-.