Sunny Kumar v. Mamta Rani, 2014 PLRonline 0108
Punjab & Haryana High Court
Ajay Kumar Mittal, Sneh Prashar, JJ.
Sunny Kumar v. Mamta Rani
FAO-M-52 of 2013
22.12.2014
Hindu Marriage Act, 1955 Section 9, 13(1-A)(ii) , 23(1)(a) – Decree for restitution of Conjugal rights passed against wife under section 9 – More than one year has elapsed – Whether by filing the present petition wife , who had suffered the decree and had refused to resume cohabitation, can be a ground to invoke the provision of Section 23 (1) (a) of the Act – It may be true that the husband had initiated proceedings for execution of decree but the fact is that the same remained unexecuted and admittedly there had been no cohabitation for more than one year between the parties – Resultantly, it was open to either of them to apply for dissolution of marriage by a decree of divorce under the provisions of Section 13 (1-A) (ii) of the Act – Refusal to resume cohabitation was not a ground to invoke the provisions of Section 23 (1) (a) of the Act of 1955 so as to plead that he/ she was taking advantage of his/her own wrong – Wife is entitled to a decree of divorce under Section 13 (1-A) (ii) of the Act .
Mr. Liaqat Ali, Advocate Mr. Gurcharan Dass, Advocate
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SNEH PRASHAR, J. – This appeal is directed against the judgment and decree dated 25.10.2012 vide which the petition under Section 13 of the Hindu Marriage Act, 1955 (in short “the Act of 1955”) filed by respondent-wife Mamta Rani for dissolution of her marriage with appellant-husband Sunny Kumar, was allowed.
2. Precisely, the relevant facts which need elaboration are as under:-
The marriage between appellant Sunny Kumar and respondent Mamta Rani was solemnized on 14.09.2006 at Ludhiana according to Hindu rites and ceremonies. Mamta Rani alleged that the marriage was performed without her consent and the consent of her attest to the accuracy and integrity of this document parents. After marriage, she did not live with Sunny Kumar. The marriage was never consummated and no issue was born/conceived out of the wedlock.
Disclosing the backdrop of marriage, Mamta Rani pleaded that she was a student of B.A. Part-II in Khalsa College for Women. She developed friendly relations with Sunny Kumar when she was a minor. After she attained the age of majority in August, 2006, she was allured to marry him. He represented that he was employed as a Coach in Satluj Club, Ludhiana and was having a ‘Kothi’ in Chander Nagar area and was a Brahmin by caste. He deceitfully obtained her matriculation certificate and identity card in which her date of birth was mentioned and from the college took her to a temple at Jagraon Bridge, Ludhiana. Without disclosing the purpose, he with the help of 2-3 persons forced her to sit in the temple. He then asked the priest to perform the rituals for marriage and threatened her that in case she raised shouts, she and her brother would be eliminated. When the priest started reciting ‘Mantras’ she managed to slip away from the temple and did not complete the seven steps round the holy fire. As such, no legal and valid marriage was performed between her and Sunny Kumar. However, at the temple a companion of Sunny Kumar took photographs and prepared a movie and also obtained her signatures on some papers without disclosing the contents thereof.
It was further alleged by Mamta Rani that Sunny Kumar had filed a petition under Section 9 of the Act of 1955 and obtained an exparte decree dated 08.11.2008 from the Court of Civil Judge (Junior Division), Ludhiana. Because of threat from Sunny Kumar and financial constraints she could not contest the proceedings in the said petition. Consequent to the decree she had no alternative than to get the marriage dissolved by a decree of divorce. A period of more than one year had elapsed since the decree dated 08.11.2008 was passed and as there had been no cohabitation between her and Sunny Kumar, a right had accrued to her to get her marriage dissolved under Section 13 (1-A) (ii) of the Act of 1955. Submitting that she apprehends danger to her life at the hands of Sunny Kumar and his companions, Mamta Rani prayed for a decree of divorce.
3. The appellant-husband contested the petition. Besides raising preliminary objections with regard to maintainability of the petition in the present form, estoppel etc., Sunny Kumar submitted that one year prior to marriage he and Mamta Rani were known to each other. Since they wanted to marry, a proposal was put before their respective parents but as the family members of Mamta Rani did not agree, they solemnized their marriage on 14.09.2006 as per Hindu rites and ceremonies and in the presence of relatives and friends at Shree Sankat Mochan Hanuman Darbar temple at Jagraon Bridge near Railway Lines, Ludhiana. The president of the temple issued a certificate of marriage. Mamta Rani did not inform her family members about the marriage out of fear. She stayed with her parents for a few days and then joined his conjugal company w.e.f. 17.09.2006. They cohabited as husband and wife but no child was born out of the wedlock.
Brother of Mamta Rani namely, Amit Bhatt felt annoyed and in connivance with the police he and his other family members started interfering in their married life. They filed a writ petition before the Hon’ble High Court at Chandigarh in which order dated 19.09.2006 was passed directing Senior Superintendent of Police, Ludhiana to protect the life of the parties.
It was further submitted by Sunny Kumar that the matter was compromised thereafter. The parents of Mamta Rani admitted their fault and agreed not to harass them. Due to their changed behaviour, Mamta Rani went to her parental home with the understanding that she will be sent back in a short span. After 4-5 days, Sunny Kumar asked her parents to send her but they kept putting of the matter on one pretext or the other. Thereafter, they started threatening him and Mamta Rani also refused to join his conjugal company under pressure of her parents. He then filed a petition under Section 9 of the Act of 1955 on 08.11.2007 in which Mamta Rani appeared and filed written statement but later did not appear and was proceeded against exparte on 30.08.2008. The petition was allowed exparte by learned Civil Judge (Junior Division), Ludhiana vide order dated 08.11.2008. Despite the decree for restitution of conjugal rights, Mamta Rani did not join his company till date although a period of more than one year had passed since then.
Alleging that Mamta Rani had willfully withdrawn from his society without any reasonable cause and that he still has love and affection for her and is ready and willing to keep and maintain her and further that the petition had been filed with an intention to harass him and his parents, Sunny Kumar prayed for dismissal of the petition.
4. Respondent filed rejoinder controverting the objections raised by the appellant and on the pleadings of the parties, following issues were settled:-
(1) Whether the petitioner is entitled to a decree of divorce on the basis of exparte decree obtained by the respondent under Section 9 of the Hindu Marriage Act on 08.11.2008? OPP.
(2) Whether petition is not maintainable? OPR.
(3) Whether the petitioner is estopped by her own act and conduct to file the present petition? OPR.
(4) Relief.
5. The appellant as well as the respondent adduced evidence to substantiate their respective contentions.
6. Considering the evidence and the submissions made on behalf of the parties, learned trial Court, finding that Mamta Rani is entitled to a decree of divorce under Section 13 (1-A) (ii) of the Act of 1955 as till the date of filing of the present petition there has been no restitution of conjugal rights between her and Sunny Kumar for more than one year from the date of the exparte decree dated 08.11.2008 copy of which was Ex.P1, passed a decree for divorce and dissolved the marriage of the parties.
7. Feeling aggrieved with the judgment dated 25.10.2012, appellant Sunny Kumar preferred the instant appeal.
8. Heard the submissions made by Mr. Liaqat Ali, Advocate, learned counsel representing the appellant and Mr. Gurcharan Dass, Advocate, learned counsel representing the respondent.
9. In her pleadings although Mamta Rani alleged that her marriage with Sunny Kumar was solemnized on 14.09.2006 at Ludhiana according to Hindu rites and ceremonies but she pleaded that the marriage was performed without her and her parents’ consent. She also alleged that after marriage she and Sunny Kumar never cohabited as husband and wife. At the same time it was her own case that prior to marriage when she was a student of B.A. Part-II in Khalsa College for Women she had developed friendly relations with Sunny Kumar and after she attained the age of majority in August, 2006, she was allured by Sunny Kumar to marry him. She may have stated that she was forced to sit in the temple where Sunny Kumar asked the priest to perform the marriage and when the priest started reciting the first ‘mantra’ she managed to slip away from the temple and the ceremony of seven steps before the holy fire were not completed, but she herself admitted that during the marriage ceremony some photographs were clicked and movie was prepared by a companion of Sunny Kumar and that her signatures were obtained on some papers.
10. Having admitted in her pleadings and then in para no.21 of her affidavit Ex.PA that her marriage was solemnized with Sunny Kumar according to Hindu rites and ceremonies, there remained no doubt that the marriage was performed in a legal and valid manner. As far as her free consent to the marriage was concerned, respondent Sunny Kumar proved photographs Ex.R1 to Ex.R22 of the marriage by examining Photographer RW5 Surinder Kumar. Two other photographs Ex.R23 and Ex.R24 showing the couple in good mood were also tendered in evidence. Ex.R25 is the certificate of marriage issued by Shree Sankat Mochan Hanuman Darbar temple which was proved by RW3 Girjesh Shastri, the priest of the said temple who performed the ceremonies.
In addition to the above evidence, Sunny Kumar produced Ex.R26 order of this Court passed in petition under Section 482 of the Code of Criminal Procedure filed by him and Mamta Rani against State of Punjab and others, copy of which is Ex.R27. An affidavit executed by Mamta Rani was proved by RW2 Mandeep Singh wherein she had admitted that she had attained the age of majority and her marriage with Sunny Kumar had been performed with her free will. The affidavit was got attested from Executive Magistrate and RW7 P.K. Sharma, Advocate deposed that the signatures on the affidavit were appended by Mamta Rani in his presence without any pressure from any quarter and he alongwith her had appeared before the Executive Magistrate for attestation of the affidavit. It was also mentioned in the affidavit that she was residing with her husband and his family members at the matrimonial home.
11. Analyzing the above documents and the deposition of RW1 Sunny Kumar and his companion RW4 Ajay Kumar, learned trial Court held as under:-
“The above mentioned evidence proves that all the marriage ceremonies were performed on 14.9.2006 and that after marriage, the parties lived and cohabited together. It is also proved that no force or pressure was exercised upon the petitioner for solemnization of her marriage with the respondent. The petitioner is not entitled to decree of divorce on any of these grounds mentioned in the petition.”
12. There is no adversity or illegality in the above finding since from the ocular and documentary evidence produced by Sunny Kumar, it was established that Mamta Rani was married to Sunny Kumar with her free will and without any pressure from any quarter. It is also worthwhile to mention here that in the petition under Section 9 of the Act of 1955 filed by Sunny Kumar, Mamta Rani had appeared but had walked out of the proceedings intentionally and was proceeded against exparte. Ultimately, an exparte decree Ex.P1 dated 08.11.2008 was passed in that petition in favour of Sunny Kumar. For the reason, that Mamta Rani having knowledge of the petition under Section 9 of the Act of 1955 filed by Sunny Kumar, did not contest the same and left the proceedings to be recorded exparte, is another factor important for drawing the inference that her marriage with Sunny Kumar was a legal and valid marriage and was performed with her consent.
13. Having resolved the marriage status of the parties, the next contentious issue that comes up for determination is whether Mamta Rani is entitled to a decree of divorce on the ground that there has been no restitution of conjugal rights between her and Sunny Kumar for a period of more than one year from the date of decree dated 08.11.2008 Ex.P1 passed in a petition filed by Sunny Kumar.
14. Learned counsel for the appellant argued with vehemence that Sunny Kumar had obtained the decree for restitution of conjugal rights because he still had the affections for Mamta Rani and was ready and willing to keep her as his wife. He had also been making all efforts to comply with the decree himself and also to call upon Mamta Rani to do so. He had filed a petition for execution of the decree before the competent court which was pending. It was Mamta Rani who was avoiding to comply with the decree, therefore, by way of the instant petition she cannot be allowed to take benefit of her own wrong.
15. Admittedly, there had been no cohabitation between the parties (Mamta Rani and Sunny Kumar) for more than one year from the date of passing of the decree Ex.P1 for restitution of conjugal rights. It was so admitted by Sunny Kumar in his pleadings. In other words, till date the decree for restitution of conjugal rights between the parties to the marriage has not been complied with. The answer to the query whether by filing the present petition Mamta Rani, who had suffered the decree Ex.P1 and had refused to resume cohabitation, can be a ground to invoke the provision of Section 23 (1) (a) of the Act of 1955 for Sunny Kumar to plead that she was taking advantage of her own wrong, lies in the decision of Full Bench of this Court in Smt. Bimla Devi v. Singh Raj, AIR 1977 Punjab and Haryana 167 wherein it was held as under:-
“In a case covered under S. 13 (1-A) (ii), either of the parties can apply for dissolution of marriage by a decree of divorce if it is able to show that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in proceedings in which they were parties. The plea that the party against whom such decree was passed failed to comply with the decree or that the party in whose favour the decree was passed took definite steps to comply with the decree and the defaulting party did not comply with the decree and, therefore, such an act be taken to be taking advantage of his or her own wrong would not be available to the party, who is opposing the grant of divorce under cl.(ii) of sub-s (1-A) of S.13.”
16. It may be true that Sunny Kumar had initiated proceedings for execution of decree Ex.P1 dated 08.11.2008 but the fact is that the same remained unexecuted and admittedly there had been no cohabitation for more than one year between the parties. Resultantly, it was open to either of them to apply for dissolution of marriage by a decree of divorce under the provisions of Section 13 (1-A) (ii) of the Act of 1955. Refusal to resume cohabitation was not a ground to invoke the provisions of Section 23 (1) (a) of the Act of 1955 so as to plead that he/ she was taking advantage of his/her own wrong. In Smt. Bimla Devi’s case (supra) it was further held as under:-
“10. We are, therefore, inclined to hold that in a case covered under S.13 (1-A) (ii) of the Act, either of the parties can apply for dissolution of marriage by a decree of divorce if it is able to show that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in proceedings in which they were parties. The plea that the party against whom such decree was passed failed to comply with the decree or that the party in whose favour the decree was passed took definite steps to comply with the decree and the defaulting party did not comply with the decree and, therefore, such an act be taken to be taking advantage of his or her own wrong would not be available to the party, who is opposing the grant of divorce under Cl. (ii) of sub-s. (1-A) of S. 13 of the Act. We are, therefore, inclined to hold that the law laid down in Chaman Lal’s case ( 1971-73 Pun LR 104) (supra) is not the correct position of law and the said authority is, therefore, overruled.”
Same is the proposition of law laid down in Rajesh vs. Sheela 2011(1) Recent Civil Reports 652 (DB).
17. In the above premises, the finding of learned trial Court that Mamta Rani is entitled to a decree of divorce under Section 13 (1-A) (ii) of the Act of 1995 as there has been no restitution of conjugal rights between her and Sunny Kumar for more than one year from the date of the exparte decree dated 08.11.2008 Ex.P1 till the date of filing of the present petition, calls for no intervention and the appeal is hereby dismissed.
No costs.
