201.
(P&H HC) 19-10-2015
A. Hindu Marriage Act, 1955 (25 of 1955), Section 13, 23(1)(a) – Divorce – Desertion – Own wrong -- Ex parte decree of restitution of conjugal rights against wife but husband neither filed an application for its execution nor otherwise initiated any steps in this regard -- Said ex parte decree was set aside and wife filed an application u/s 24 of the HMA -- Application for restitution of conjugal rights was later withdrawn -- Claim of the respondent to seek restoration of conjugal rights lacked bonafide -- Husband cannot be allowed to take advantage of his own wrong and seek a decree of divorce by accusing his wife being guilty of desertion or cruelty for depriving him of conjugal rights.
(Para 23)
B. Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Divorce – Desertion – Wife was denied maintenance under Section 125 Cr.P.C. on the premise that she has withdrawn from society of the respondent -- Proceedings u/s 125 Cr.P.C. have not attained finality -- In addition, those proceedings are not exactly civil in nature -- Husband has failed to prove one of the essential ingredients of desertion, he cannot prove the said ground on the basis of findings recorded in proceedings under Section 125 Cr.P.C.
(Para 24)
C. Hindu Marriage Act, 1955 (25 of 1955), Section 13, 23(1)(d) – Divorce – Desertion – Delay in proceedings -- Clause (d) of Section 23(1) of the HMA provides that there should not be any unnecessary or improper delay in instituting the proceedings -- Parties are residing separately since August 1993 -- Husband has admitted during his cross examination that there was no impediment in filing the petition for divorce from 1993 to March 2009 -- No explanation for delay of 16 years in filing the petition for divorce either on the ground of desertion or cruelty -- Ld. trial court has not adverted to the provisions of Section 23(1)(d) of the HMA while holding in favour of the husband – Judgment and decree passed by the Trial court set aside.
(Para 25, 27)
D. Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Irretrievable break down of marriage – Divorce -- Though irretrievable break down of marriage is not a ground for divorce but if marriage is beyond repairs on account of bitterness created by the Acts of the husband or the wife or both, the courts take irretrievable break down of marriage as a weighty circumstance amongst others necessitating severance of marital ties.
(Para 26)
E. Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Irretrievable break down of marriage – Divorce -- Mere fact that the parties are staying away from each other for the past more than 20 years alone is not sufficient to conclude that the marriage is beyond repairs -- Two children born out of the wedlock and both of them have received good education up to graduation or post graduation -- Children stayed with the mother and were being maintained by parental family of the wife -- Children of the parties are of marriageable age -- Judgment and decree passed by the trial court is set aside, petition for divorce dismissed.
(Para 26,27)