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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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