KOTHARI, J. - (1.) THE present appeal is directed against the judgment of Family Court No. 1, Jaipur dated 6. 7. 2002 whereby the divorce petition filed by the husband Shri Bal Kishan Sharma has been rejected by the Family Court.
(2.) THE case appears to have a chequered history and indicates the persistence of the husband to somehow wriggle out of the matrimonial bonds with the respondent-Smt. Urmila Sharma. Both the parties got married on 23rd February, 1985 and according to the appellant they lived as husband and wife together only for a period of four months and ever since 19. 6. 1985 they are living separately. Earlier the appellant-husband filed a petition for declaration of the marriage to be a nullity u/s. 12 of the Act, which was rejected by the Family Court on 12th December, 1986 and the appeal against that was also rejected by High Court on 13. 12. 1988. On the other hand respondent-wife filed an application u/s. 9 of the Act for restitution of conjugal rights, which was decreed by the Family Court on 12th December, 1986. However, according to the appellant husband since the parties could not live together even thereafter, he again filed a petition u/s. 13 of the Act seeking a decree of divorce on 2nd March, 1990 on the ground of cruelty, desertion and non resumption of co-habitation for a period of more than one year after passing of the decree of restitution of conjugal rights in favour of the wife. THE said petition was also again rejected by the Family Court on 25. 3. 1994, against which the appellant- husband again preferred an appeal before this Court, which came to be disposed of by Division Bench on 30th August, 2001. While holding that the allegations of cruelty and desertion were rightly found as not proved by the appellant-husband, the Division Bench remitted the case back to the Family Court for addressing itself to the question as to whether in the facts and circumstances of the case, the appellant-petitioner was taking advantage of his own wrong in seeking divorce on the ground u/s. 13 (1a) (ii) of the Act. THE Division Bench allowed hearing before the Family Court confined to this point alone and if the Family Court considered it necessary, it could give fresh opportunity to the parties to lead evidence on this point alone. In these circumstances the matter came up before the Family Court and was disposed of on 6. 7. 2002 by the impugned judgment. The Family Court took the additional evidence in the form of statement of father of wife Shri Banwari Lal and also took additional documents on record namely one Certificate of Gyan Vihar English Medium School, Malviya Nagar, Jaipur to the effect that appellant's son was studying in VIth standard in that school and voters' list showing the appellant and his wife Smt. V. K. Sharma and the third document was Telephone Directory showing the appellant's original address. Another Certificate dated 21st August, 1991 issued by Head Master, Bountra Montessori School, Rewadi was also produced by the respondent-wife. The appellant- husband did not produce any evidence in rebuttal of the aforesaid. Therefore, the Family Court came to the conclusion that the appellant was leading an adulterous life with one Smt. Vimlesh Sharma and the couple had a girl named Situ borne on 19. 12. 1987, which was after the date of decree of restitution of conjugal rights passed in favour of the respondent-wife on 12. 12. 1986. Thus the Family Court came to the conclusion that the appellant was leading an adulterous life and could not be allowed to take advantage of his own wrong and therefore, he was not entitled to a decree of divorce on the ground of Section 13 (1a) (ii) of the Act in view of the provisions contained in Section 23 (1) (a) of the Act. The appellant-husband being aggrieved by the said judgment of the Family Court dated 6. 7. 2002 has preferred this appeal before this Court. We have heard the learned counsels at length and perused the record. Learned counsel for the appellant-husband Mr. S. M. Mehta urged before this Court that it was a case of totally broken marriage and the separation of the parties had reached to a point of no return as they were admittedly living separately ever since June, 1985 and after lapse of 22 years now there was no possibility of restoration of that matrimonial home and the decree of divorce deserves to be granted in favour of the appellant-husband. He submitted that allegations of adultery were not proved against the appellant-husband and since the respondent-wife was insisting right from beginning upon him to live with her at Rewadi though he was living in Jaipur and was in service, as the respondent-wife was already working as a Teacher in Rewadi and since she chose to live separately from him, the appellant-husband was entitled to a decree of divorce on the ground of desertion as well as non resumption of conjugal rights despite decree. He relied upon the following judgment in support of his submissions:- (i) Bai Mani vs. Jayantilal Dahyabhai (AIR 1979 Gujarat 209) (ii) Smt. Saroj Rani vs. Sudarshan Kumar Chadha (AIR 1984 SC 1562) (iii) Vinita Saxena vs. Pankaj Pandit (2006) 3 SCC 778) (iv) Durga Prasanna Tripathy vs. Arundhati Tripathy (2005) 7 Supreme Court Cases 353) = (2005 (4) RLW 2558 (SC) The case which we find nearest to the facts of the present case is the last one in Durga Prasanna Tripathy vs. Arundhati Tripathy (supra ). The other cases are distinguishable on facts. The relevant part of which is reproduced hereunder:- " The appellant husband H filed a petition for divorce under Section 13 (1) of the Hindu Marriage Act, 1955 on the ground of cruelty and desertion. It was alleged that the marriage between H and W (wife) was solemnized on 5. 3. 1991. After the marriage, the parties led their conjugal life in the village to which H belonged. Therefore, W persuaded H to stay at Bhubaneswar, the place of her service as well as her parental place. H did not approve of such proposal as a result of which dispute arose between the parties. On 26. 5. 1996 when the mother of H went to bring W on the occasion of the marriage ceremony of younger brother of H, W declined to come, misbehaved and insulted her mother-in-law. Later, when father of H expired, then also W did not come. Even after the death of H's father, W in spite of several requests of H and his family members did not join the company of H. Held: Fourteen years have elapsed since H and W have been separated and there is no possibility of the said parties resuming the normal marital life even though W is willing to join H. There has been an irretrievable breakdown of marriage between H and W. There is clear finding of the Family Court that in spite of good deal of endeavour to effect a recoinciliation the same could not be effected because of the insistence of W to remain separately from her in-laws. It was totally an impracticable solution. The evidence adduced by W before the Family Court belies her stand taken by her before the Family Court. Under the circumstances, H had proved before the Family Court both the factum of separation as well as animus deserendi which are the essential elements of desertion. Enough instances of cruelty meted out by W to H were cited before the Family Court. In the facts and circumstances of the case, the reunion is impossible. H and W are living away for the last 14 years. A good part of the lives of both the parties has been consumed in this litigation. The end is not in sight. The assertion of W through her learned counsel at the time of hearing appears to be impractical. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. Hence, there is no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. "
(3.) AS against this, Mr. N. K. Joshi, learned counsel appearing for the respondent-wife submitted that the case of the respondent-wife was fully covered by Section 23 (1) (a) of the Act and the appellant-husband could not be allowed to take advantage of his own wrong and since he was leading an adulterous life after a decree of restitution of conjugal rights in favour of the respondent-wife, he could not have a decree of divorce in his favour merely to legalize his adulterous life, which he was leading with one Vimlesh and was even had children from her. He submitted that the additional evidence was taken by the Family Court in pursuance of the directions of the Division Bench and since the appellant-husband failed to rebut the additional evidence, which was brought before the Family Court to prove the adulterous life of the appellant-husband, he could not be allowed to take advantage of his own wrong and was not entitled to a decree of divorce. The allegations of cruelty and desertion had already been held as not proved in the earlier round of litigation upto this Court and the appellant-husband had already lost. He relied upon the judgment of Delhi High Court in Santosh Kumari vs. Kewal Krishan Sabharwal (AIR 1985 Delhi 393) & Meera Bai vs. Rajendra Kumar (AIR 1986 Delhi 136 ). The case which we find nearest to the facts of the present case is the case of Smt. Santosh Kumari vs. Kewal Krishan Sabharwal (supra ). The relevant part of which is reproduced hereunder:- " Held, having regard to the circumstances of the case, the divorce petition filed by the husband was liable to be dismissed u/s. 23 (1) (a) on the ground that the husband could not be allowed to take advantage of is own wrong. This was an extreme case where the husband, in order to defeat the maintenance proceedings, admitted his wife back to the matrimonial home for a short duration, but did not consummate the conjugal rights. He had treated his wife with a sort of conjugal rejection in spite of her coming to live with him. No doubt, in cases where the couples were educated, financially, and socially independent, or were further well aware of the consequences of break-up of marriage, and were determined to proceed in that direction, it could be said that to still hold them tied by matrimonial bonds would be wholly unjustified. But the matter was different where a woman was illiterate or semi-literate and had no independent source of livelihood, as in the instant case. While a divorcee man had little difficulty in entering into a fresh wedlock, the divorcee woman found herself as a desolate lone voyager. There were bleak chances of her finding a new suitable partner in life. Mere providing a maintenance was no substitute for happiness and fulfillment which a person otherwise got from marriage. Till the times when the female found her feet, both socially and economically divorce meant leaving her in a veritable widowhood for the rest of life with all the stigma attached in society. Hence, in the instant case, where the fault lay with the husband for non-fulfillment of the decree for restitution of conjugal rights, and the wife was only semi-literate, having no source of her own income, the provisions of Sec. 23 (1) (a) were attracted, did-entitling the husband to the grant of a decree for divorce u/s. 13 (1a ). " We have considered the rival submissions and we are of the opinion that the present appeal of the appellant-husband deserves to be dismissed. The ground of cruelty and desertion having failed, the persistence of the appellant-husband to wriggle out of the matrimonial bondage from the respondent-wife in the light of his adulterous life with another woman namely Vimlesh, who even bore children from the appellant-husband leads us to believe that the appellant-husband is guilty of not maintaining his admitted and valid marriage with the respondent-wife. The mere fact that they started living separately just after four months of their marriage on the pretext of wife insisting upon living at Rewadi to continue her service casts a serious doubt on the bonafides of the appellant-husband. The fact of his living with another woman and having children from her was proved by the respondent-wife by leading additional evidence before the Family Court in the second round of litigation. ;