BAI MANI ALIAS CHANDRAMANI Vs. PATEL JAYANTILAL DAHYABHAI
HIGH COURT OF GUJARAT
BAI MANI AND CHANDRAMANI D/O.PATEL BECHARBHAI NARSINHBHAI
PATEL JAYANTILAL DAHYABHAI
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(1.) An emotive question whether continuance in adulterous relationship on the part of husband after the decree of judicial separation granted in favour of wife inter alia on the same ground would per se amount to taking advantage of his own wrong so as to disentitle him to a decree for divorce arises in this. The question arises in the following circumstances:
(2.) The parties hereto are Hindu and their marriage was solemnised according to Hindu rites somewhere in 1954 A.D. They stayed as husband and wife for seven years and three Children were born one son and two daughters by this wedlock. They had fallen out completely for reasons the respective version of which is different somewhere in 1961 and they are staying separately since then. It is an admitted position on the part of the respondent husband that he developed intimacy with one Smt. Indumati who happened to be the friend of the appellant wife and they came closer to each other and started living together after the appellant wife started residing separately in the ground floor of one of the ancestral house properties it is claimed by the respondent husband that he made adequate arrangement for the residence and maintenance of the wife and children by purchasing a building in the said locality in the name of the wife so that she can maintain herself and her children from the income of the said property. He also made a grievance that in spite of his looking after her and her children she picked up quarrels with him and his step mother who is residing in the upper portion of the ancestral property in which the appellant wife is staying with her children with the result that their relations have embittered. It appears that the appellantwife had filed a petition in the City Civil Court Ahmedabad in July 1968 being Hindu Marriage Petition No. 55 of 1958 praying for a decree of restitution of conjugal rights or in the able native for judicial separation There was no effective contest in those proceedings with the result that on November 19 1958 the City Civil Court granted a decree for judicial separation and directed the opponent husband to pay Rs. 601/as and by way of alimony for maintenance of the appellant wife and children. Since there was no resumption of cohabitation between the parties hereto for a period of two years after the passing of the decree for judicial separation the respondent husband presented a petition for dissolution of marriage by a decree of divorce as permitted under sec. 13(1A) of the Hindu Marriage Act. This petition was resisted by the appellant wife inter alia on the ground that the husband was not competent to present the petition under sec. 13(1A) and in ally case there were justifying reasons for the Court to reject the petition under sec. 23(1) inasmuch as the husband is trying to take advantage of his own wrong by continuing to stay in adulterous course with Smt. Indumati and not caring for the children. The learned Judge of the City Civil Court raised necessary issues on these pleadings and on hearing the evidence adduced by the parties found that they failed to co-habit for a period of two years or more after the decree for judicial separation was granted on 19th November 1968 A contention was urged on behalf of the appellant wife that the husband was trying to take advantage of his own wrong and therefore decree for divorce should be refused in view of the provisions contained in sec. 23(1)(a) of the Hindu Marriage Act. The learned City Civil Judge without addressing himself to the question whether there were any circumstances brought out in the evidence of the parties which disentitled the husband to a decree for dissolution of marriage by divorce under sec. 23(1)(a) merely followed the decision of this Court in Appeal No. 61 of 1971 rendered by Art. 11. Shah J (as he then was) on 29th August 1972 and answered issue No. 2 in favour of the husband that he was entitled to the decree prayed for. He therefore granted a decree for divorce dissolving the marriage by his judgment and order of 2nd July 1973 which is the subject matter of this first appeal before us.
(3.) At the time of hearing of this appeal Mr. Patel learned Advocate appearing for the appellant wife raised the following tive contentions before us:-
1 The learned City Civil Judge was clearly in error in finding that the respondent husband was entitled to a decree for divorce without addressing himself to the question which was raised before him that there were justifying reasons under sec. 23(1)(a) for refusing the relief of divorce prayed for.
2 In any case the persistent conduct on the part of the husband in continuing the adulterous relationship even after the decree for judicial separation should be treated as so reprehensible that to grant a decree for divorce at his instance would be tantamount to allowing him to take advantage of his own wrong and therefore the learned City Civil Judge ought to have refused to grant the decree for divorce dissolving the marriage.;
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