Pratibha Rani JUDGMENT
Pradeep Nandrajog, J.
1. The appellant/husband is aggrieved by the judgment dated September 03, 2015 whereby his petition filed under Section 13(1) (ib) of Hindu Marriage Act, 1955 for dissolution of marriage on ground of desertion has been dismissed by learned Judge, Family Court, Delhi.
2. Admitted facts are that the appellant/husband got married to the respondent/wife on May 05, 1992 according to Hindu rites. The parties stayed together for a short duration which as per the appellant/husband is 42 days and as per the respondent/wife is 25 days. During this short stay, the respondent conceived and gave birth to a son on February 19, 1993. The parties continued living separately even after birth of the son and thereafter on August 26, 1994 the respondent/wife lodged FIR No. 500/1994 under Sections 498-A/406/34 IPC at PS Sriniwas Puri against the appellant. However, the matter was compromised and the parties started living together in terms of the settlement entered into on October 13, 2003 and resumed cohabitation.
3. On April 06, 2004 the respondent/wife gave birth to a female child. The respondent/wife again left her matrimonial home in the year 2005 and had not returned thereafter. In the year 2012 the appellant/husband filed a petition under Section 9 of Hindu Marriage Act, 1955 seeking restitution of the conjugal rights which has been dismissed by learned Judge, Family Court, Meerut. Thereafter he filed the petition seeking dissolution of marriage on account of desertion by the respondent which has been dismissed by the learned Judge, Family Court, Delhi and assailed before this Court by way of this appeal.
4. Mr. Karunesh Tandon, Advocate for the appellant/husband has submitted that it was a case where the respondent/wife was to be blamed for breakdown of the marriage. All efforts by the appellant/husband to bring her back failed initially, but after the compromise the appellant/husband had resided at the paternal house of the respondent/wife for about 10 months so that their matrimonial life could be saved. But even that attempt failed. Learned counsel for the appellant has submitted that he had been taking care of both the children despite that the respondent/wife had deserted him and also abandoned both the children. Even the son of the parties who was earlier residing with the appellant/husband had now gone back to the respondent/wife but the daughter is still with the appellant/husband.
5. The appellant who was present in person submitted that all his efforts to save the marriage had failed. He had taken an extra step by living at his in-laws' house for about 10 months despite that on the festival of Rakshabandhan he was asked to move out and thereafter till date the respondent/wife had failed to return. The appellant has submitted that more than ten years have passed and respondent/wife has no intention to resume cohabitation and this relationship is just for name sake, hence the impugned order may be set aside and decree of divorce may be passed.
6. Mr. Ghanshyam Mishra, Advocate for the respondent/wife has submitted that the respondent/wife was harassed by her husband and in-laws on two counts: (i) for not bringing sufficient dowry; and (ii) her complexion was dark for which she was taunted. Learned counsel for the respondent/wife has contended that the appellant/husband had remarried as was deposed by RW-2 Janmesh @ Aman Sharma - son of the parties though this fact was not believed by learned Judge, Family Court. Attention of this Court was drawn to the fact that after twelve years of marriage when the matter was compromised, the respondent/wife without any hesitation joined the appellant/husband and performed her matrimonial obligation which is established from the fact that a daughter was born to the parties on April 06, 2004. The criminal proceedings were also put to an end. Thereafter compelled by the harassment and misbehaviour of the appellant/husband she had to leave the matrimonial home. Thus, it cannot be said that she had no intention to live with the appellant/husband and discharge her matrimonial obligation hence the appeal may be dismissed.
7. We have perused the LCR record.
8. The learned Judge, Family Court considered the pre separation conduct as well the post separation conduct of the parties and dismissed the divorce petition inter alia on the following grounds:
(i) It is admitted case of the parties that second time they separated on August 17-19, 2005.
(ii) The appellant/husband had made no real effort to bring back the respondent/wife.
(iii) The factum of dismissal of his petition under Section 9 of Hindu Marriage Act, 1955 was not disclosed by the appellant/husband.
(iv) Effect of dismissal of the petition for restitution of conjugal rights is that he failed to prove that the respondent/wife left the matrimonial house without any reasonable cause or excuse.
(v) The fact that the respondent/wife helped in quashing of FIR and gave birth to two children during her brief stay with the appellant/husband shows that she had no intention to severe the relationship permanently.
(vi) The respondent/wife was compelled to leave the matrimonial home because of his bad conduct as the appellant/husband somewhere in his mind had disliking for her which came out in the form of abandoning her.
(vii) The appellant/husband did not make even a single attempt to persuade the respondent/wife to return to the matrimonial home or crease the differences that might have compelled the respondent/wife to leave the matrimonial home as well her children with the appellant/husband.
9. The Trial Court Record contains the certified copies of the proceedings under Section 9 of Hindu Marriage Act, 1955 which was the petition filed by the appellant/husband for restitution of conjugal rights, may be with an intention to seek divorce claiming this to be a ground on failure of the respondent/wife to resume cohabitation. However, contrary to the expectations of appellant/husband the respondent/wife agreed to return to the matrimonial home unconditionally. The learned Judge, Family Court, Meerut has specifically recorded in his proceedings dated December 01, 2006 that to explore the possibility of settlement matter was referred to Lok Adalat but the appellant/husband failed to appear whereas the respondent/wife was present before the Lok Adalat. It has also been recorded by the learned Judge, Family Court, Meerut that for restitution of conjugal rights the respondent/wife was ready and willing to live with the appellant/husband without any condition but appellant/husband was not ready for that and was making allegations against her. Resultantly, the petition under Section 9 of Hindu Marriage Act, 1955 for restitution of conjugal rights filed by the appellant/husband was dismissed.
10. On re-appreciation of the evidence adduced before the learned Judge, Family Court in HMA Petition No. 119/2013 as well the proceedings before the learned Judge, Family Court, Meerut in a petition under Section 9 of Hindu Marriage Act, 1955 the intention of the appellant/husband not to give a chance to the respondent/wife to resume cohabitation is well established. The petition under Section 9 of Hindu Marriage Act, 1955 for restitution of conjugal rights was just to create a ground for seeking divorce. The stand taken by the respondent/wife expressing her intention to resume matrimonial obligations had the effect of conceding to the prayer made in the petition under Section 9 of Hindu Marriage Act, 1955 by the wife. But this was not acceptable to the appellant/husband.
11. In the decision reported as MANU/SC/0262/2001 : (2001) 2 SCR 20 Chetan Dass vs. Kamla Devi the question as to whether the offer made by husband to keep his wife was sincere so as to be seriously considered, was examined by the Supreme Court and it was held as under:
'During the course of the arguments, learned counsel for the appellant, so as to show the allegations made against the appellant about having illegitimate relationship with Sosamma Thomas (sic.), submitted that the appellant is still prepared to keep the respondent Kamla Devi with him. According 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 in quite apparent. It is on record that it was on the some (sic. Same) 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 the 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 led the respondent to live separate from the appellant. None 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 have they been seriously assailed before us.'
12. As the appellant/husband was not willing to take the respondent/wife to the matrimonial home, he cannot blame the respondent/wife for deserting him without any reasonable cause or excuse. The party seeking divorce under the matrimonial offence theory must be innocent. The appellant/husband who was at fault when he declined the offer of his wife to join him unconditionally though he himself filed a petition for restitution of the conjugal rights, proved that the respondent/wife was not to be blamed. Being a wrongdoer he cannot take advantage of his own wrong.
13. We concur with the findings of learned Judge, Family Court that respondent/wife had no intention to destroy the matrimonial life and she giving birth to the two children though the second time she reunited after 12 years of separation shows that she never abandoned the relationship. This was sufficient to dismiss the petition for dissolution of marriage on account of desertion by the respondent.
14. The instant appeal is dismissed.
15. No costs.
16. TCR be sent back alongwith copy of this order.
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