KANAIYALAL AMBALAL THAKKAR Vs. JAISHREEBEN KANAIYALAL THAKKAR
LAWS(GJH)-2014-3-192
HIGH COURT OF GUJARAT
Decided on March 28,2014

Kanaiyalal Ambalal Thakkar Appellant
VERSUS
Jaishreeben Kanaiyalal Thakkar Respondents

JUDGEMENT

- (1.) FEELING aggrieved and dissatisfied with the impugned judgment and decree dated 30.09.2013 passed by the learned Principal Judge, Family Court, Rajkot in Familty Suit No.9/2008 [Old HMP No.94/1995] by which the learned Judge has dismissed the said family suit preferred by the appellant herein original applicant for getting the divorce under Section 13(1A) of the Hindu Marriage Act, 1955 [hereinafter referred to as "Act"], the appellant herein original applicant has preferred the present First Appeal under Section 19 of the Family Courts Act.
(2.) THAT the appellant herein original applicant husband filed the HMP Suit No.99/1995 before the learned Senior Civil Judge, Rajkot for dissolution of the marriage/divorce under Section 13(1A)(ii) of the Act, which came to be transferred to Family Court, Rajkot, which was renumbered as Family Suit No.9/2008. It was the case on behalf of the appellant husband that the respondent wife is without any reasonable cause as deserted him and is residing separately since 1988. It was the case on behalf of the appellant that earlier the respondent wife filed the Hindu Marriage Petition No.42/1992 under Section 9 of the Act for restitution of conjugal rights which came to be decreed on the consent given by the appellant husband, however thereafter and as per the judgment and decree passed in HMP No.42/1992, the appellant husband made number of efforts in person and on telephone to call back the wife and to stay with him, however the respondent wife is not returning and more than one year has been passed after the decree for restitution of conjugal rights and therefore, it was requested to grant the decree for dissolution of the marriage between the parties under Section 13(1A) of the Act. [2.1] The suit was resisted by the respondent wife by filing the written statement at Exh.49. The respondent wife denied the allegations made in the suit. It was the case on behalf of the respondent wife that as such no efforts aer made by the husband to call her back and stay together. It is submitted that only with a view to make a show and to get the benefit of the decree for restitution of conjugal rights, the husband gave consent consent for decree of restitution of conjugal rights. It was submitted that not a single day the appellant has even seen the face of his daughter. It was the case on behalf of the respondent wife that despite the notice dated 11.09.1996, no reply has been given by the husband and he has not shown any inclination for restitution of conjugal rights. It was also the case on behalf of the wife that as such the appellant husband is residing with one another lady and has remarried despite the subsistence of marriage between the appellant and the respondent and out of the aforesaid wedlock he has one another daughter also. Therefore, it was the case on behalf of the respondent that only with a view to legalize the second marriage, the suit has been filed. [2.2] That the learned trial Court framed the issues at Exh.32. That thereafter both the parties led evidence documentary as well as oral. On behalf of the appellant original applicant, he himself came to be examined at Exh.44. One Vishnukumar Chhotalal Giriraj and Sailesh Ambalal Thakkar came to be examined at Exhs.50 and 51 on behalf of the appellant original applicant. The appellant original applicant has also produced the documentary evidences Exhs.50 to 55, Exh.56; Exhs.57 to 72 mostly the letters sent to the respondent through UPC/RPAD acknowledgement. [2.3] That on behalf of the opponent she herself came to be examined at Exh.66. She also produced the documentary evidence. It was the specific case on behalf of the respondent wife that only blank envelopes have been sent and the same has been established and proved. That thereafter on appreciation of evidence the learned Judge has specifically held that appellant husband is not entitled to the decree for dissolution of marriage as, as such not efforts are made by the husband to call back the wife and/or to stay together and only with a view to get the benefit of the decree for restitution of conjugal rights and to see to it that after period of one year of passing of decree of restitution of conjugal rights, he may get the divorce and/or decree for dissolution of marriage, he, with malafide intention agreed for decree of restitution of conjugal rights in the suit filed by the wife HMP No.42/1992 and consequently the learned Family Court has dismissed the suit and has refused to pass the decree for dissolution of marriage between the parties. [2.4] Feeling aggrieved and dissatisfied with the impugned judgment and decree passed by the learned Family Court in dismissing the suit for the decree of dissolution of marriage between the parties under Section 13(1A) of the Act, the appellant herein original applicant has preferred the present First Appeal under Section 19 of the Family Courts Act.
(3.) SHRI Amrish Pandya, learned advocate appearing on behalf of the appellant has vehemently submitted that the learned Judge has materially erred in dismissing the suit and not granting the decree for dissolution of marriage between the parties under Section 13(1A) of the Act. It is submitted that all efforts were /are made by the appellant to bring back the respondent wife, however the respondent wife has refused to return without any reasonable cause. It is submitted that infact in the HMP Suit filed by the respondent wife being HMP Suit No.42/1992, which was filed for restitution of conjugal rights, the appellant husband volunteered and agreed for restitution of conjugal rights and thereafter number of efforts have been made by the appellant husband for restitution of conjugal rights, however has failed and therefore, considering section 13(1A) of the Act, after a period of one year of the decree for restitution of conjugal rights, the appellant husband shall be entitled to the decree for dissolution of marriage. It is submitted that the learned Judge has not properly appreciated the evidence on record and thereby has materially erred in dismissing the suit and refusing to grant the decree for dissolution of marriage under Section 13(1A)(ii) of the Act. [3.1] Shri Pandya, learned advocate appearing on behalf of the appellant has also relied upon Section 23 of the Act. He has heavily relied upon the decisions of the Hon'ble Supreme Court in the case of Dharmendra Kumar v. Usha Kumar, 1977 AIR(SC) 2218 in the case of Smt. Saroj Rani v. Sudarshan Kumar Chadha, 1984 4 SCC 90 in support of his prayer to admit/allow the present First Appeal. [3.2] Shri Pandya, learned advocate has also submitted that as the marriage between the parties have irrevocably broken down, it is requested to admit/allow the present appeal and pass a decree for dissolution of the marriage between the parties. Heard Shri Amrish Pandya, learned advocate appearing on behalf of the appellant and perused the impugned judgment and order passed by the learned Family Court. We have also gone through the entire evidence on record, documentary as well as oral, from the Record and Proceedings received from the learned trial Court and have appreciated/reappreciated the same. [4.1] At the outset it is required to be noted that initially in the year 1992, the respondent wife instituted HMP Suit No.42/1992 for restitution of conjugal rights and the appellant husband appeared before the Court and stated that he has no objection if the decree for restitution of conjugal rights is passed and thereafter the decree for restitution of conjugal rights came to be passed in favour of the respondent wife. From the documentary evidences on record as well as from the evidence on record, it appears that thereafter no efforts were made by the appellant husband for restitution of conjugal rights and on the contrary he used to send the blank envelopes with a view to make a show that he was sending the letters through RPAD/UPC for restitution of conjugal rights. The aforesaid conduct on the part of the appellant would lead to the conclusion that with a malafide intention to get the decree for dissolution of marriage after a period of one year of passing the decree for restitution of conjugal rights, he was sending blank envelopes to make a show that all efforts are made by him for restitution of conjugal rights. Under the circumstances, the learned Judge has rightly observed that the appellant herein original applicant wanted to get the undue advantage and/or the benefit of getting the decree for restitution of conjugal rights. It is required to be noted that in the present case the husband has sought the decree for dissolution of marriage under Section 13(1A)(ii) of the Act solely on the ground that after a period of one year of passing the decree for restitution of conjugal rights, as there is no restitution of conjugal rights, he is entitled to the decree for dissolution of the marriage. However, the appellant husband cannot be permitted to get the benefit of his own wrong. Merely because one year has passed after passing the decree of restitution of conjugal rights, the appellant husband automatically would not get the decree for dissolution of marriage. Only in a case where after the decree for restitution of conjugal rights and after sincere and genuine efforts for restitution of conjugal rights are made and other side is found to be responsible for not staying together without reasonable cause, other party can get the decree for dissolution of marriage after a period of one year of passing the decree for restitution of conjugal rights. If the contention on behalf of the appellant that after the period of one year of passing the decree for restitution of conjugal rights automatically, the appellant will get the divorce is accepted, in that case even if the appellant is responsible for not having restitution of conjugal rights and the respondent wife is not at all at fault, it will be giving a premium to the wrong committed by the husband. Under the circumstances and considering the conduct on the part of the appellant husband and the finding given by the learned Family Court to which we agree, no error has been committed by the learned Family Court in refusing to pass the decree for dissolution of marriage under Section 13(1A)(ii) of the Act. In the facts and circumstances of the case, the decisions of Hon'ble Supreme Court in the cases of Dharmendra Kumar and Smt. Saroj Rani would not be applicable to the facts of the case on hand and/or same would not be of any assistance to the appellant. [4.2] Now, so far as the contention on behalf of the appellant that the marriage has irrevocably broken down is concerned, it is required to be noted that it is the husband who is found to be at fault. It is also required to be noted that as such the suit has been filed for dissolution of marriage under Section 13(1A)(ii) of the Act only. [4.3] On appreciation of evidence and/or on reappreciation of entire evidence on record, we see no reason to interfere with the impugned judgment and award passed by the learned Family Court in refusing to pass the decree for dissolution of marriage under Section 13(1A)(ii) of the Act, we agree that the finding and conclusion arrived at by the learned Family Court.;


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