ASHOK KUMAR JAINversusSUMATI JAIN

                     [2013] 2 S.C.R. 841

                    ASHOK KUMAR JAIN                                ·A
                               v.
                         SUMATI JAIN
               (Civil Appeal No. 3861 of 2013)
                       APRIL 15, 2013
                                                                     B
          [G.S. SINGHVI AND SUDHANSU JYOTI
                  MUKHOPADHAYA, JJ.]

    HINDU MARRIAGE ACT, 1955:
                                                                     c
     ss.13 and 23- Petition for divorce by husband on the
grounds of cruelty and desertion - Dismissed by courts below
- Held: Both the courts below have noticed the relevant facts
and have come to a definite conclusion that appellant has not
only been cruel ..to respondent, but has also brought the            0
situation to the point where respondent had no option but to
leave the matrimonial home - In this situation, as appellant
was trying to take advantage of his own wrong, courts below
rightly disallowed the relief sought for - Order of High Court
does not suffer from any infirmity, illegality or perversity- Non    E
interference is called for.

     The appellant-husband filed a petition for dissolution
of his marriage uls 13 of the Hindu Marriage Act, 1955 on
the ground of cruelty and desertion alleged to have been
caused to him by the respondent-wife. The petition was               F
dismissed. The High Court also dismissed husband's
appeal.

    Dismissing the appeal, the Court

    HELD: 1.1. It is not in dispute that even prior to the          G
present marriage the appellant had married and from that
marriage he has a son. This fact was never revealed by
the appellant to the respondent or to her parents prior to

                              841                                    H
    842     SUPREME COURT REPORTS                 [2013] 2 S.C.R.


A · the solemnisation of the present marriage or thereafter.
    [para 10] [846-H; 847-A]
               0

       1.2. Th e 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
8
  present respondent and noticed that they are almost
  identical in their content. This clearly shows the modus
  operandi of the appellant. Taking into consideration this
  fact and the fact that even during the pendency of the
C appeal the appellant came out with a fresh matrimonial
  advertisement to re-marry for the third time even before
  getting divorce from his second wife, the High Court
  rightly held that the appellant played fraud upon the
  respondent. [para 11] [847-D-F]
D      1.3. In view of s.23(1 )(a) of the Act, if it is 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.
  In the instant case, both the courts below noticed the
  relevant facts and came to a definite conclusion that the
E 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 wc.s trying to take
  advantage of his own wrong, the courts rightly
F disallowed the relief as was sought for. The order of the
  High Court does not suffer from any infirmity, illegality or
  perversity and no interference is called for. [para 13-14]
  [848-C-F]
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
G 3861 of 2013.

          From the Judgment & Order dated 09.03.2007 of the High
    Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in D.B.
    Civil Miscellaneous Appeal No. 332 of 1998.
H
         ASHOK KUMAR JAIN v. SUMATI JAIN                      843


     S.K. Keshote, Shashank P., for the Appellant.                    A
   Sushil Kumar Jain, Puneet Jain, Anurag Gohil for the
Respondent.

     The Judgment of the Co14rt was delivered by
                                                                      B
    SUDHANSU JYOTI MUKHOPADHAYA, J. 1. 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         C
  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).                                                         D

      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        E
under Section 13 of the Act 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              F
  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 fat~er to look after. The aforesaid fact was known to the       G
, 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 father-in-law by calling his name and by neglecting     H ,
         844     SUPREME COlJRT REPORTS                 [2013] 2 S.C.R.


     A 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
     8 in the absence of appellant 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
     C by the respondent or by his in-laws. 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
     D 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.
     E
·,           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
     F insufficient dowry. Subsequently, she was shocked to learn that
       the 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
     G 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
     H lost Rs.3,000/- in gambling, he forced her to go to her parental
         ASHOK KUMAR JAIN v. SUMATI JAIN                     845
       [SUDHANSU JYOTI MUKHOPADHAYA, J.]

place and to bring Rs.3,000/- for him. Moreover, when her father    A
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      B
from a .Jain community, the appellant would force her to cook
meat or to drink with him. Since the respondent believed in non-
violence according to her religious tenance, she could never
convince herself to eat non-vegetarian food and to drink. The
respondent further alleged that finally on 30th March, 1991, the    c
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
                                                                    0
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.
                                                     I   '


      5. In the Family Court the appellant examined four
witnesses including himself and submitted a number of               E
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             F
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    G
to the point where the respondent had no option but to leave
her matrimonial home. Hence the appellant has committed
constructive desertion of the respondent.

   . 7. L~arned counsel appearing on behalf of the appellant
submitted that the cruelty and desertion were committed by the      H
    846     SUPREME COURT REPORTS                 (2013] 2 S.C.R.


A 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
B demand to separate from her father-in-law, 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
c 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.
0
  contended that where the marriage is 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
E and the respondent to live remaining part of their life peaeefully
  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
F 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
G 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
H marriage the appellant had married one 'Shanta' from whom ·
         ASHOK KUMAR JAIN v. SUMATI JAIN                       847
       [SUDHANSU JYOTI MUKHOPADHAYA, J.]
he has a son. The aforesaid fact was never revealed by the             A
appellant to the respondent or to her parents prior to the
solemnisation of the present marriage or thereafter. Even in the
matrimonial advertisement (Ex. A-11 ), the appellant had not
revealed the fact that he is already a divorcee. Moreover, the
appellant had written a letter to his father-in-law (Ex. A-10) but     B
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.                                                              c
      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       D
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         E
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 matrimonial
advertisement published by him clearly reveals his intention to
re-marry for the third time even before getting divorce from his       F
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
periqd no party to the marriage can marry again.

      12. lo the present case admittedly marriage has not been         G
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                                       H
    848     SUPREME COURT REPORTS                  [2013] 2 S.C.R.


A        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.

8       13. Under sub-clause (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 advantage of his or her own wrong or
  disability for the purpose of such relief, the Court shall grant
C 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 relier. On such
  examination if it is so found that the person is taking advantage
  of his or her wrong or aisability it is open to the Court to refuse
D 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
E 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,
F illegality or perversity; no interference is called for.
                                                                 I
        15. In the result and in absence of any merit, the appeal is
    dismissed but there shall be no separate orders as to costs.

    R.P.                                       Appeal dismissed.