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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3861 OF 2013
(arising out of SLP(C)No.20277 of 2007)
ASHOK KUMAR JAIN …. APPELLANT
VERSUS
SUMATI JAIN ….RESPONDENT
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted.
2. The appellant has preferred this appeal against
the judgment dated 9th March, 2007 passed by the
Rajasthan High Court at Jaipur in DB Civil
Miscellaneous Appeal No. 332 of 1998 whereby the
Division Bench upheld the judgment dated 13th February,
1998 passed by the Judge, Family Court, Jaipur
dismissing the appellant’s petition under Section 13 of
the Hindu Marriage Act, 1955 (hereinafter referred to
as “the Act” for short).
3. The facts of the case are as follows:
The appellant and respondent are married to each
other. The appellant preferred a petition for
dissolution of marriage under Section 13 of the Act
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before the Judge, Family Court, Jaipur and brought on
record the following facts:
The appellant and the respondent were married
according to Hindu rites on 30th October, 1990 at
Jaipur. For the first few days the respondent stayed
at her matrimonial home and behaved well with family
members of the appellant. However, upon her return
from her parental house, after a few days of the
marriage, her behaviour suddenly changed. Appellant
claimed to be the only son of the family having two
small sisters and old father to look after. The
aforesaid fact was known to the respondent even prior
to her marriage when appellant informed the
respondent’s family that since there is no one to look
after his aged father, his wife would have to look
after him. But, upon her return from her parental
place, the respondent started abusing her fatherinlaw
by calling his name and by neglecting his welfare. She
also pressurized the appellant to abandon his father
and shift to another house. Since the appellant
refused to succumb to her pressure, her behaviour
became more and more cruel towards the appellant and
his family members. Thereafter, without any rhyme or
reason on 30th March, 1991 in the absence of appellant
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and his father, the respondent packed up her bags,
collected her jewellery and left the matrimonial home.
Since that date, she has refused to come back to the
matrimonial home. On 5th December, 1991 she gave birth
to a son, but the appellant was never informed either
by the respondent or by his inlaws. When the
appellant came to know about the birth of son, he went
to see his wife at the Hospital, but he found her
missing. Thereafter, the appellant went to his in
laws’ place but they refused to let him enter inside
the house. Hence, the appellant could neither see his
newly born child nor meet his wife. Furthermore,
according to the appellant despite sending many persons
to reconcile with his wife, the respondent consistently
refused to come back to him. In this background, the
appellant filed a petition under Section 13 of the Act
before the Judge, Family Court, Jaipur for the divorce
on the grounds of cruelty and desertion.
4. The respondent, on the other hand, filed written
statement in the Family Court and narrated a totally
different set of facts. She alleged that since from
first night, the appellant came deadly drunk into the
room and abused her for bringing insufficient dowry.
Subsequently, she was shocked to learn that the
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appellant was earlier married to a woman known as
‘Shanta’ and had a son from the said marriage.
According to the respondent, the aforesaid fact
relating to first marriage was not revealed by the
appellant in the matrimonial advertisement given by him
on 8th April, 1990 in the daily newspaper “Rajasthan
Patrika”. When she inquired about his first marriage
she realized that the appellant had sought divorce on
the exact same grounds as are pleaded by him in the
present case. The respondent further claimed that once
when the appellant had lost Rs.3,000/ in gambling, he
forced her to go to her parental place and to bring
Rs.3,000/ for him. Moreover, when her father retired
from the service and had received retiral benefits of
Rs.1,20,934/, the appellant pressurized her to
convince her father to part with Rs.50,000/ for him.
Whenever, she refused to talk to her father on this
topic, the appellant assaulted her. She further
alleged that despite the fact that she was a woman from
a Jain community, the appellant would force her to cook
meat or to drink with him. Since the respondent
believed in nonviolence according to her religious
tenance, she could never convince herself to eat non
vegetarian food and to drink. The respondent further
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alleged that finally on 30th March, 1991, the appellant
mercilessly bashed her up and threw her out of the
matrimonial home. She had no option but to return to
her parental place. According to the respondent, when
she was hospitalized and required blood and even after
the birth of her son, the appellant never visited the
hospital to see her and the son and enquired about her
welfare. Therefore, according to the respondent, in
fact the cruelty and desertion have been committed by
the appellant and not by her.
5. In the Family Court the appellant examined four
witnesses including himself and submitted a number of
documentary evidence. The respondent also examined
four witnesses including herself and submitted the
large number of documentary evidence. The learned
Judge after going through the oral and documentary
evidence and on hearing the parties, by the judgment
dated 13th February, 1998 dismissed the petition for
divorce with cost.
6. The Appellate Court, as noticed above, dismissed
the appeal. The Appellate Court held that the
appellant has not only been cruel to the respondent,
but has also brought the situation to the point where
the respondent had no option but to leave her
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matrimonial home. Hence the appellant has committed
constructive desertion of the respondent.
7. Learned counsel appearing on behalf of the
appellant submitted that the cruelty and desertion were
committed by the respondent. He has taken us to the
factual matrix narrated above and submitted that these
facts as alleged by the appellant and supported by
evidence clearly shows that the respondent has
neglected her matrimonial duties both towards the
appellant and his family. The respondent’s persistent
demand to separate from her fatherinlaw, depriving
the husband of the matrimonial relationship, refusal to
resume cohabitation with the appellant, all these acts
and omissions amount to cruelty and desertion. The
cruelty was constituted to the extent that it was
impossible for the husband to live with such a wife.
It was also submitted by the learned counsel for the
appellant that the approach of the High Court was
incorrect as it failed to notice that when the
appellant and the respondent have been living
separately for about sixteen years, there is no purpose
in compelling both the parties to live together. The
High Court ought to have granted decree of divorce. It
was further contended that where the marriage is
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irretrievably broken down with no possibility of the
appellant and the respondent to live together again,
the best recourse for the High Court to adopt was to
dissolve their marriage and thereby allow the appellant
and the respondent to live remaining part of their life
peacefully both having already lost valuable part
thereof.
8. On the other hand, learned counsel for the
respondent highlighted the facts not disputed by the
appellant that the appellant is in the habit of
marrying and remarrying. Even prior to the present
marriage, the appellant had married one ‘Shanta’ from
whom he has a son. This fact was never revealed by the
appellant to the respondent or to her parents prior to
the solemnisation of the present marriage. Therefore,
while playing fraud with woman, the appellant wishes to
continue solemnising number of marriages.
9. We have heard learned counsel for the parties and
perused the record.
10. It is not in dispute that even prior to the
present marriage the appellant had married one ‘Shanta’
from whom he has a son. The aforesaid fact was never
revealed by the appellant to the respondent or to her
parents prior to the solemnisation of the present
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marriage or thereafter. Even in the matrimonial
advertisement (Ex. A11), the appellant had not
revealed the fact that he is already a divorcee.
Moreover, the appellant had written a letter to his
fatherinlaw (Ex. A10) but therein also not mentioned
that he is a divorcee and a father of a son. Moreover,
even during the pendency of the appeal, the Court
noticed that the appellant has placed a matrimonial
advertisement in the paper as he wishes to enter into a
third marriage.
11. The High Court perused the divorce petition as was
filed by the appellant against his first wife as well
as the divorce petition filed by the appellant against
the present respondent and noticed that they are almost
identical in their content. The same sets of
allegations were levelled against the first wife as
levelled against the present respondent. This clearly
shows the modus operandi of the appellant.
Taking into consideration the aforesaid fact and
the fact that even during the pendency of the appeal
the appellant came out with a fresh matrimonial
advertisement, the High Court rightly held that the
appellant played fraud with the respondent. The High
Court noticed that surprisingly the subsequent
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matrimonial advertisement published by him clearly
reveals his intention to remarry for the third time
even before getting divorce from his second wife. The
High Court observed that this is against the Section 15
of the Act, whereunder it is stipulated that even after
dissolution of marriage by a decree of divorce, upto
certain period no party to the marriage can marry
again.
12. In the present case admittedly marriage has not
been dissolved by any of the Court of Law. On the
other hand, the petition under Section 13 for
dissolution of marriage was dismissed by the Judge,
Family Court. In such case there was no occasion for
the appellant to come out with another advertisement
for third marriage
In this background, the High Court rightly held
that the aforesaid acts during the pendency of the
appeal clearly reveals appellant’s psychology of
disobeying the law and of entering into a number of
marriages.
13. Under subclause (a) of clause (1) of Section 23,
in any proceeding under the Act, if the Court is
satisfied that any of the grounds for granting relief
exists and the petitioner is not in any way taking
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advantage of his or her own wrong or disability for the
purpose of such relief, the Court shall grant relief
under Section 23 (1) (a) of the Act.
Therefore, it is
always open to the Court to examine whether the person
seeking divorce “is not in any way taking advantage of
his or her own wrong or disability for the purpose of
such relief”. On such examination if it is so found
that the person is taking advantage of his or her wrong
or disability it is open to the Court to refuse to
grant relief.
14. In the present case, both the Courts noticed the
relevant facts and came to a definite conclusion that
the appellant has not only been cruel to the
respondent, but has also brought the situation to the
point where the respondent had no option but to leave
the matrimonial home.
In this situation as the
appellant was trying to take advantage of his own
wrong, the Courts disallowed the relief as was sought
for. We find that the order to that effect of the
High Court does not suffer any infirmity, illegality or
perversity; no interference is called for.
15. In the result and in absence of any merit, the
appeal is dismissed but there shall be no separate
orders as to costs.
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………..………………………………………..J.
(G.S. SINGHVI)
………………………………………………….J.
(SUDHANSU JYOTI
MUKHOPADHAYA)
NEW DELHI,
APRIL 15, 2013.
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