Mishribai Vs. Parasmal - Court Judgment

SooperKanoon Citationsooperkanoon.com/503620
SubjectFamily
CourtMadhya Pradesh High Court
Decided OnApr-16-1990
Case NumberF.A. No. 65 of 1988
JudgeR.K. Verma, J.
Reported inII(1991)DMC183
ActsHindu Marriage Act, 1935 - Sections 9 and 13
AppellantMishribai
RespondentParasmal
Appellant AdvocateR.S. Garg, Adv.
Respondent AdvocateB.L. Pavecha, Adv.
DispositionPetition allowed
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - p/2) clearly shows that the allegations of cruelty and desertion made in that application are very much the same as made in the counter-claim for divorce filed by the husband in reply to the instant application of the wife for restitution of conjugal rights. p/2) as well as a perusal of the instant application for restitution of conjugal rights and its reply make it abundantly clear that the allegations of cruelty and desertion made by the husband against the wife are substantially the same.r.k. verma, j. 1. this is an appeal filed by the wife mishribai against the judgment and decree dated 15.10 88 passed in civil suit no. 23-a/86 by the iind addl. judge to the court of district judge, ratlam whereby allowing the appellant's application under section 9 of the hindu marriage act (hereinafter referred to as 'the act) for restitution of conjugal rights against the respondent-husband has been dismissed and the husband's cross-claim for divorce under section 13 of the act has been decreed.2. the facts giving rise to this appeal, briefly stated, are as follows :'the appellant, who is a teacher at jaora, was married there on 26.4.1982 to the respondent who is a teacher, resident of manasa, district mandsaur. after the marriage, the couple lived together at kukadeshwar in tehsil manasa and they also lived together at several places including jaora, khargone, jharda, indore'.3. it is the case of the appellant that on 29.2.84 the respondent left her at jaora and has since then deserted her. the appellant-therefore, filed the present application under section 9 of the act (c.s. no. 23-a/86) in the district court at ratlam against the husband parasmal for restitution of conjugal rights.4. but prior to filing of the present application by the appellant wife under section 9 of the act, the husband parasmal had already filed at mandsaur an application for divorce under section 13 of the act (ex. p/1) on 23.8.84 alleging cruelty and desertion for more than two years by the wife, the present appellant. that application was registered as civil suit no. 17-a/84 in the court of 1st addl. judge to the court of district judge, mandsaur. on notice being served on the appellant of the said divorce application, she filed a reply on 16.1.1985 (ex. p/2) in the court at mandsaur.5. thereafter the appellant filed the present application for restitution of conjugal rights (civil suit no. 23-a/86) in the ratlam court on 28.1.1985 as aforesaid, after the notice of the application for restitution of conjugal rights to the respondent-husband, he filed reply and a counter-claim for divorce on 22.4.87. the respondent-husband alleged the grounds of cruelty and desertion against the appellant-wife in his counter-claim much in the same manner as was alleged in his application for divorce (civil suit no. 17-a/14) filed in mandsaur court.6. the application for divorce which had been filed by the respondent-husband in the district court at mandsaur as c.s. no. 17-a/84, was decided by the court by judgment deliverd on 31.10.85 (ex. p/3) whereby the husband's divorce application was dismissed on a finding that neither the ground of cruelty nor the ground of desertion was proved against the wife.7. in answer to the counter-claim of divorce filed by the husband on 22.4.87, as aforesaid, the appellant filed reply dated 16.12.87 wherein, while denying the allegations made by the husband in his counter-claim, she raised the objection of res-judicate alleging that the district court mandsaur having dismissed the divorce application of the husband-respondent, his counter-claim in the instant case is barred by resjudicata.8. the learned trial court, after hearing the case, has, however, dismissed the appellant's application for restitution of conjugal rights and has decreed the respondent's counter-claim for divorce.9. being aggrieved by the judgment and decree passed by the learned lower court, the appellant-wife has filed the present appeal.10. the learned counsel for the appellant has submitted that the learned lower court has patently erred in holding that the judgment of the district court mandsaur dated 31.10.85 (ex. p/3) docs not affect the counter-claim for divorce made by the respondent in the present case. the reasoning given by the learned lower court is that when the respondent filed the application for divorce in the district court mandsaur, the period of desertion was less than two years. but as per the allegation made by the appellant in the prasent case that she has been deserted by the husband since 29.2.84 the period of two years was exceeded on 22.4.87 when the respondent-husband filed his counter-claim for divorce in answer to the appellant's application for restitution of conjugal rights.11. it has been submitted by the learned counsel for the appellant that the aforesaid reasoning given by the learned lower court is prima facie erroneous and unjust. the appellant filed the instant application for restitution of conjugal rights in the district court at ratlam on 28.1.85 and the respondent after notice appeared in court on 20.3.85. the respondent has apparently not welcomed the appellant's intention of living together with the husband and has contested the appellant's application for restitution of conjugal rights. he has also not made any gesture for reconciliation during the pendency of the said application of the wife. he has on the contrary, made a counter-claim for divorce as late as 22.4.87.12. the elapse of time from 28.1.85 when the appellant filed the present application for restitution of conjugal rights upto 22.4.87 when the respondent made a counter-claim for divorce cannot be reckoned as period of desertion at the instance of the wife and in favour of the husband during the pendency of the application, for restitution of conjugal rights made by the wife against the husband.13. a perusal of the application for divorce (ex. p/l) filed by the husband in mandsaur court on 23.4.84 and the reply filed by the wife (ex. p/2) clearly shows that the allegations of cruelty and desertion made in that application are very much the same as made in the counter-claim for divorce filed by the husband in reply to the instant application of the wife for restitution of conjugal rights.14. having heard learned counsel for the parties, i have come to the conclusion that the submission of the learned counsel for the appellant has force and must be accepted. the appellant has alleged desertion on the part of the husband in the instant case and has sought restitution of conjugal rights in her application filed on 28.1.85. the husband has opposed the application filed for restitution of conjugal rights and has filed his reply belatedly on 22.4 87. the conduct of the husband does not justify reckoning of the period from 22.1.85 to 22.4.87 as a period of desertion by the wife so as to entitle him to a decree for divorce. on a perusal of the application for divorce (ex. p/l) filed by the husband in district court at mandsaur and its reply (ex. p/2) as well as a perusal of the instant application for restitution of conjugal rights and its reply make it abundantly clear that the allegations of cruelty and desertion made by the husband against the wife are substantially the same. as such. the dismissal of the application for divorce on the finding that the allegations of cruelty and desertion have not been proved by the husband operates as res-judicata on the issues of cruelty and desertion. as such, the judgment and decree of divorce passed by the learned lower court in violation of the principles of resjudicata, cannot be sustained in law, and are liable to be aside.15. in the result, this appeal succeeds and is hereby allowed. the judgment and decree passed by the learned lower court are set aside and the appellant's claim for restitution of conjugal rights is decreed. there shall, however, be no order as to costs.
Judgment:

R.K. Verma, J.

1. This is an appeal filed by the wife Mishribai against the judgment and decree dated 15.10 88 passed in Civil Suit No. 23-A/86 by the Iind Addl. Judge to the Court of District Judge, Ratlam whereby allowing the appellant's application under Section 9 of the Hindu Marriage Act (hereinafter referred to as 'the Act) for restitution of conjugal rights against the respondent-husband has been dismissed and the husband's cross-claim for divorce under Section 13 of the Act has been decreed.

2. The facts giving rise to this appeal, briefly stated, are as follows :

'The appellant, who is a teacher at Jaora, was married there on 26.4.1982 to the respondent who is a teacher, resident of Manasa, District Mandsaur. After the marriage, the couple lived together at Kukadeshwar in Tehsil Manasa and they also lived together at several places including Jaora, Khargone, Jharda, Indore'.

3. It is the case of the appellant that on 29.2.84 the respondent left her at Jaora and has since then deserted her. The appellant-therefore, filed the present application under Section 9 of the Act (C.S. No. 23-A/86) in the District Court at Ratlam against the husband Parasmal for restitution of conjugal rights.

4. But prior to filing of the present application by the appellant wife under Section 9 of the Act, the husband Parasmal had already filed at Mandsaur an application for divorce under Section 13 of the Act (Ex. P/1) on 23.8.84 alleging cruelty and desertion for more than two years by the wife, the present appellant. That application was registered as Civil Suit No. 17-A/84 in the Court of 1st Addl. Judge to the Court of District Judge, Mandsaur. On notice being served on the appellant of the said divorce application, she filed a reply on 16.1.1985 (Ex. P/2) in the Court at Mandsaur.

5. Thereafter the appellant filed the present application for restitution of conjugal rights (Civil Suit No. 23-A/86) in the Ratlam Court on 28.1.1985 as aforesaid, After the notice of the application for restitution of conjugal rights to the respondent-husband, he filed reply and a counter-claim for divorce on 22.4.87. The respondent-husband alleged the grounds of cruelty and desertion against the appellant-wife in his counter-claim much in the same manner as was alleged in his application for divorce (Civil Suit No. 17-A/14) filed in Mandsaur Court.

6. The application for divorce which had been filed by the respondent-husband in the District Court at Mandsaur as C.S. No. 17-A/84, was decided by the Court by judgment deliverd on 31.10.85 (Ex. P/3) whereby the husband's divorce application was dismissed on a finding that neither the ground of cruelty nor the ground of desertion was proved against the wife.

7. In answer to the counter-claim of divorce filed by the husband on 22.4.87, as aforesaid, the appellant filed reply dated 16.12.87 wherein, while denying the allegations made by the husband in his counter-claim, she raised the objection of res-judicate alleging that the District Court Mandsaur having dismissed the divorce application of the husband-respondent, his counter-claim in the instant case is barred by resjudicata.

8. The learned Trial Court, after hearing the case, has, however, dismissed the appellant's application for restitution of conjugal rights and has decreed the respondent's counter-claim for divorce.

9. Being aggrieved by the judgment and decree passed by the learned Lower Court, the appellant-wife has filed the present appeal.

10. The learned counsel for the appellant has submitted that the learned Lower Court has patently erred in holding that the judgment of the District Court Mandsaur dated 31.10.85 (Ex. P/3) docs not affect the counter-claim for divorce made by the respondent in the present case. The reasoning given by the learned Lower Court is that when the respondent filed the application for divorce in the District Court Mandsaur, the period of desertion was less than two years. But as per the allegation made by the appellant in the prasent case that she has been deserted by the husband since 29.2.84 the period of two years was exceeded on 22.4.87 when the respondent-husband filed his counter-claim for divorce in answer to the appellant's application for restitution of conjugal rights.

11. It has been submitted by the learned counsel for the appellant that the aforesaid reasoning given by the learned Lower Court is prima facie erroneous and unjust. The appellant filed the instant application for restitution of conjugal rights in the District Court at Ratlam on 28.1.85 and the respondent after notice appeared in Court on 20.3.85. The respondent has apparently not welcomed the appellant's intention of living together with the husband and has contested the appellant's application for restitution of Conjugal rights. He has also not made any gesture for reconciliation during the pendency of the said application of the wife. He has on the contrary, made a counter-claim for divorce as late as 22.4.87.

12. The elapse of time from 28.1.85 when the appellant filed the present application for restitution of conjugal rights upto 22.4.87 when the respondent made a counter-claim for divorce cannot be reckoned as period of desertion at the instance of the wife and in favour of the husband during the pendency of the application, for restitution of conjugal rights made by the wife against the husband.

13. A perusal of the application for divorce (Ex. P/l) filed by the husband in Mandsaur Court on 23.4.84 and the reply filed by the wife (Ex. P/2) clearly shows that the allegations of cruelty and desertion made in that application are very much the same as made in the counter-claim for divorce filed by the husband in reply to the instant application of the wife for restitution of conjugal rights.

14. Having heard learned counsel for the parties, I have come to the conclusion that the submission of the learned counsel for the appellant has force and must be accepted. The appellant has alleged desertion on the part of the husband in the instant case and has sought restitution of conjugal rights in her application filed on 28.1.85. The husband has opposed the application filed for restitution of conjugal rights and has filed his reply belatedly on 22.4 87. The conduct of the husband does not justify reckoning of the period from 22.1.85 to 22.4.87 as a period of desertion by the wife so as to entitle him to a decree for divorce. On a perusal of the application for divorce (Ex. P/l) filed by the husband in District Court at Mandsaur and its reply (Ex. P/2) as well as a perusal of the instant application for restitution of conjugal rights and its reply make it abundantly clear that the allegations of cruelty and desertion made by the husband against the wife are substantially the same. As such. the dismissal of the application for divorce on the finding that the allegations of cruelty and desertion have not been proved by the husband operates as res-judicata on the issues of cruelty and desertion. As such, the judgment and decree of divorce passed by the learned Lower Court in violation of the principles of resjudicata, cannot be sustained in law, and are liable to be aside.

15. In the result, this appeal succeeds and is hereby allowed. The judgment and decree passed by the learned Lower Court are set aside and the appellant's claim for restitution of conjugal rights is decreed. There shall, however, be no order as to costs.