RAJASTHAN HIGH COURT

                   Dr. Rajneesh

                   Vs.

                   Savita

                   S.B. Civil Writ Petition No. 1607 of 2003
                                 (Prakash Tatia, J.)

                   18.04.2003

                   ORDER

Prakash Tatia, J.

1. Heard learned counsel for the petitioner.

2. The petitioner is aggrieved against the order dated 10th April, 2003 by which the
petitioner's application dated 20th March, 2003 was dismissed by the Trial Court.

3. Brief facts of the case are that the non-petitioner who is wife of the petitioner filed
one divorce petition against the petitioner in the Trial Court. The grounds for seeking
relief of divorce are cruelty and desertion. The petitioner submitted reply to the
divorce petition and also filed counter-claim and sought relief of divorce on the ground
of cruelty and desertion, therefore, there are allegations and counter-claim of cruelty
and desertion by each party against other. The petitioner submitted an application
under Section 151 Civil Procedure Code and requested that in case, non-petitioner-
applicant withdraws the allegations of cruelty and desertion, then the decree may be
passed for which the petitioner will have no objection. It is also stated that the
petitioner is prepared to submit joint divorce petition under Section 138. The said
application was resisted by the non-petitioner-applicant and the application of the
petitioner was dismissed by the Trial Court by order dated 16th Jan., 2003 after
considering the judgments of the Hon'ble Supreme Court as well as judgment of the
Division Bench of this Court, which are again relied upon by learned counsel for the
petitioner in support of this petition also.

4. The trial court while rejecting application of the petitioner held that in this matter
the reconciliation proceeding has not taken place and the judgments relied upon by
learned counsel for the petitioner are not applicable to the facts of the present case and
thereafter, observed that passing of a decree under the provisions of Order 8 Rule 6-E
Civil Procedure Code depends upon the discretion of the Court and that discretion is
required to be a judicial discretion. Ultimately, the Court held that by exercising
judicial discretion, the Court is of the opinion that till reconciliation proceeding do not
take place, there is no reason for passing the decree and, therefore, rejected the
application of the petitioner and fixed the date for finding out possibility of
reconciliation between the parties.

5. It appears from the facts of the case that when the non-petitioner did not appear
before the Trial Court for reconciliation on 27th Feb., 2003 and 20th March, 2003, the
petitioner submitted an application again for grant of divorce decree in the counter-
claim of the petitioner, the trial court adjourned the matter for reconciliation
proceedings, which ultimately failed on 2th April, 2003. The Trial Court fixed the
matter for arguments on the application of the petitioner-non-applicant. The
respondent-applicant before the Trial Court submitted that she does not want to file the
reply to the application filed by the petitioner-non-applicant under Order 8 Rule 6-E
Civil Procedure Code. The arguments on the application were heard and ultimately, by
order dated 10th April, 2003 the application of the petitioner for grant of divorce in
counter-claim of the petitioner was again dismissed.

6. According to learned counsel for the petitioner, it is clear from the facts of the case
that there are allegations of cruelty and desertion against the respondent-non-applicant
which have not been denied by the respondent by filing reply to the counter-claim and,
therefore, the Court should have passed the divorce decree in favor of the petitioner
under the provisions of Order 8 Rule 6-E Civil Procedure Code, which provides that if
the plaintiff makes default in putting in a reply to the counter-claim made by the
defendant, the Court may pronounce judgment against the plaintiff in relation to the
counter-claim made against him, or make such order in relation to the counter-claim as
it thinks fit. Learned counsel for the petitioner further submitted that when there are
prayers of both the parties for grant of decree of divorce, who leveled allegations of
cruelty and desertion loses its significance and the Court, in these circumstances, may
pass the decree for divorce, which will give relief to both the parties and there is no
requirement of deciding any issue particularly in the facts of this case because no
reply to the counter-claim has been filed by the respondent-applicant herself
consciously. Learned counsel for the petitioner relied upon the Division Bench
judgment of this Court delivered in the case of Shimla Devi v. Kuldeep Sharma, 1
7. Learned counsel for the petitioner also submitted that as per Clause (a) of Sub-
Section (1) of the Section 23 of the Hindu Marriage Act, 1955 (for short 'the Act of
1955'), for grant of divorce decree, what is required is existence of the ground for
grant of relief of divorce irrespective of the fact that who levelled the allegation. If the
Court is satisfied that there exist grounds for relief, which are given in Section 13 of
the Act of 1955, then there is no reason for not granting the relief of divorce. Learned
counsel for the petitioner also submitted that the Trial Court on an earlier occasion
vide order dated 16th Jan., 2003 dismissed the application for grant of divorce on
petitioner's application only on the ground that efforts have not been made by the
Court to settle the dispute between the parties as required under the procedure to be
adopted in the matter of matrimonial disputes and thereafter, very specifically held
that till the reconciliation proceedings are not taken, relief of divorce cannot be
granted to the petitioner-non-applicant in his counter-claim. According to the learned
counsel for the petitioner, after failure of reconciliation between the parties now there
is no hurdle in granting decree for divorce.

8. I considered the submission of learned counsel for the petitioner. The facts
mentioned above clearly show that first non-petitioner filed the divorce petition on the
ground of allegation of cruelty and desertion in which reply has been filed by the
petitioner, therefore, issues involved in the divorce petition of the petitioner, are
whether the petitioner has committed any cruelty and deserted the non-petitioner ? In
the counter-claim, there are counter-allegations levelled by the petitioner against the
non-petitioner of cruelty as well as desertion. In the trial Court, the petitioner moved
an application for grant of decree for divorce on the plea that since, the non- petitioner
has not filed the reply to the counter-claim, therefore, the decree of divorce may be
passed by exercising discretion under Order 8 Rule 6-E Civil Procedure Code. The
trial Court by order dated 16th Jan., 2003 after taking note of the fact that efforts for
reconciliation have not been made by the court as required under the law, therefore, till
the efforts for reconciliation between the parties are not taken up, the decree for
divorce cannot be granted. In addition to the above, the trial Court also observed that
whether to grant a decree by exercising power under Order 8 Rule 6-E Civil Procedure
Code. It is discretionary and for that purpose judicial discretion is required to be
exercised. In view of the above reasons, it is clear that the trial Court in its order dated
16th Jan., 2003 did not grant the decree for divorce on two counts : one is that the
efforts are yet to be made for reconciliation between the parties and the second is that
in not haste without making any effort for reconciliation, it will not be proper to grant
the decree for divorce in counter-claim of the petitioner. A bare perusal of the
reasoning given by the trial court in its order dated 16th Jan., 2003 itself makes it clear
that the case was even not matured for exercising of judicial discretion of the Court for
exercising power under Order 8 Rule 6-E Civil Procedure Code. Therefore, I do not
find any force in the submission of learned counsel for the petitioner that after the
order dated 16th Jan., 2003 upon failure of the reconciliation efforts between the
petitioner and non-petitioner, the Court had no option but to grant the decree for
divorce in counter-claim of the petitioner.

9. The another submission of learned counsel for the petitioner that since the facts of
the case reveal that there are allegations of cruelty and desertion in the counter-claim
filed by the petitioner in the divorce petition of the non-petitioner, which have not
been denied by the non-petitioner and specifically she refused to deny the allegations,
therefore, the Court should have granted the decree for divorce in favor of the
petitioner despite the fact of pendency of the divorce petition of the non-petitioner on
the same grounds of cruelty and desertion, which are against the petitioner himself.
Such a plea cannot be accepted for the reason that the non-petitioner submitted
divorce petition and leveled allegation of cruelty and desertion against the petitioner,
which is required to be decided by the trial Court and the allegation leveled by the
petitioner has direct or indirect relation with the allegation leveled by the non-
petitioner upon the petitioner, therefore, even if, a specific reply to the counter-claim
filed by the petitioner has not been flied by the non-petitioner, still the facts submitted
and grounds raised by the non-petitioner in her divorce petition cannot be altogether
ignored and those facts can also be considered for the purpose of exercise of judicial
discretion under the provisions of Order 8 Rule 6-E Civil Procedure Code. In view of
the rival claim of cruelty and desertion against the each other, if the decree of divorce
has not been granted on the ground of merely not filing of the reply to the counter-
claim by the non-petitioner, the trial Court has not committed any illegality rather has
exercised a power with sound judicial discretion.

10. Learned counsel for the petitioner next contended that when there is a ground
available for grant of the decree, then it is not necessary to find out who is guilty of
committing the cruelty and desertion and the Court can grant the decree for divorce
without finding who is the person actually guilty. Learned counsel for the petitioner
relied upon the Division Bench judgment of this Court, delivered in the case of Shimla
Devi v. Kuldeep Sharma (supra). This submission of learned counsel for the petitioner
is also devoid of any force. First of all, if the submission of learned counsel for the
petitioner is accepted, then it will result into holding that a person committing cruelty
and deserting spouse may also take benefit of his or her own wrong to get rid of his or
her spouse and may also take benefit in the divorce petition, which has been filed due
to fact that the non-applicant himself, to get rid of his or her spouse compelled other to
file divorce petition and thereby that wrong doer will get what he should not have got,
this will be absolutely against the public policy. The public policy provides that the
Courts are not meant for giving relief to the wrong doers. Secondly, the legislature
specifically took care of this situation particularly in the divorce petition by framing
sub- clause (a) of Sub-Section (1) of Section 23 of the Act of 1955, which specifically
provides that before passing the decree for divorce, the Court shall record its
satisfaction regarding existence of the ground of divorce and further shall see that the
wrong doer is not taking benefit by getting the decree of divorce, therefore, in any
count such submission cannot be accepted.

11. The judgment which was relied upon by learned counsel for the petitioner has
rightly been distinguished by the Trial Court. The facts of Shimla Devi's case (supra),
I need not to narrate in detail because of the reason that the Division Bench of this
Court in appeal filed by the wife against the grant of divorce decree observed that the
judgment of the Trial Court does not contain the reasons to hold any party guilty of
committing cruelty, but the appellate court, after taking into account the conduct of the
appellant's wife, very specifically held that even if there exists no reason for holding
any one guilty of committing cruelty, still there exists conduct of the appellant. In that
case, situation arose that the wife did not want to live with husband nor she wanted to
give the divorce and she wanted to maintain the position as was going on of not living
with husband and not permitting divorce to the husband, therefore. Division Bench of
this Court after recording these facts held as under :-

       "So even though the finding recorded by the Family Court against the appellant
       on the question of desertion and cruelty may be suffering from strict legal proof,
       yet we do not find any scope of interference with the impugned judgment and
       decree."

12. Therefore, the above judgment of the Division Bench has no application to the
facts of this case because there are serious allegations, which are yet to be determined
by the Trial Court.

13. Assuming for the sake of argument that the Trial Court in its order dated 10th
April, 2003 not very specifically call upon the petitioner to prove his case, still the
entire reasons given in the impugned order dated 10th April, 2003 very clearly reveals
that the trial Court considered the facts of the case and found that this is not a fit case
for grant of divorce in counter- claim. It impliedly means that the Court will proceed
to take up the divorce petition and the counter-claim of desertion and Trial Court will
proceed which automatically requires calling upon the parties to prove their cases.

14. Therefore, I do not find any force in the writ petition filed by the petitioner is and
the same is dismissed

Petition dismissed.

Cases Referred.

1. 1999 DNJ (Raj.) 249