Citation: (2001) 4 SCC 125, AIR 2001 SC 1285

Date of judgement: 20^th March, 2001

Bench: D. P. Mohapatra (J), Doraiswamy Raju (J)

Facts:

• The appellant is husband of the respondent. High Court of Karnataka on 6.1.1981 granted judicial separation to respondent for adultery on the part of appellant u/s 10 of Hindu Marriage Act, 1955.
• Court ordered that the appellant shall pay as maintenance Rs.100/- per month to the wife and Rs.75/- per month for the daughter. But the order was not complied with by the appellant and the respondent did not received any amount towards maintenance.
• On 13.9.1983 the appellant presented a petition for dissolution of marriage by a decree of divorce on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period of more than one year after passing of the decree for judicial separation.
• The respondent contested the petition on the ground that appellant did not complied with court’s order and pays maintenance and taking benefit of his own wrong by filing the petition for divorce.
• The High Court accepted the plea taken by the respondent and refused to grant the appellants prayer for divorce.

Issue:

Whether the husband who has filed a petition seeking dissolution of the marriage by a decree of divorce u/s. 13(1-A) (i) of the Hindu Marriage Act, 1955 (for short the Act) can be declined relief on the ground that he has failed to pay maintenance to his wife and daughter despite order of the Court?

Judgement:

The court declined the relief of a decree of divorce to the appellant. The appeal was dismissed with costs.

Key Law points discussed in the case:

1. Whether in a petition for divorce filed u/s 13(1-A) can the court refuse to pass a decree on any of the grounds specified in Sec 23 of the Act?
   
   Yes
   
   Court observed that Amending Act No. 44 of 1964 was introduced to delete Cls. (viii) & (ix) of Sec 13(1) which provides the right to apply for divorce only to the party which had obtained a decree for judicial separation or restitution of conjugal rights. Sec 13(1-A) was also introduced which confers such rights to both the parties irrespective of who obtained the decree for judicial separation or restitution of conjugal rights. The object of the amendment was to enlarge the scope of Sec 13 and not to abrogate Sec 23 of the Act.
   
2. Whether the appellant by refusing to pay maintenance to the wife has committed a wrong within the meaning of Sec 23 of the Act?
   
   Yes
   
   Cohabitation means living together as wife and husband which does not necessarily need sexual intercourse between husband and wife. It means more than mere residence. After the decree of judicial separation is passed it is the duty of both parties to do their part for cohabitation. Appellant by not providing maintenance to respondent fails to act as husband. So, he committed a wrong u/s 23 of the Act.
   
   Moreover, he was still living in adultery with his mistress which makes the reconciliation impossible. In Soundarammal v. Sundara Mahalinga Nadar[1] also, court held that a person living in adultery even after decree of judicial separation at the instance of wife, could not take the benefit by filing petition for divorce as it is barred u/s 23 of the Act.
   
3. When a cause of action for getting a decree of divorce u/s 13(1-A) of the Act arises, does the court has any alternative other than to grant a decree of divorce?
   
   No
   
   The Court observed that the section does not provide that once the applicant makes an application alleging fulfillment of one of the conditions specified therein the Court has no alternative but to grant a decree of divorce. Such an interpretation of the Section will run counter to the provisions in Sec 23(1) (a) or (b) of the Act.
   
   Reading the provisions in Sec 13(1-A) and 23(1)(a) together, provides that the petitioner does not have a vested right for getting the relief of a decree of divorce against the other party merely on showing that the ground in support of the relief sought as stated in the petition exists. Every attempt is to be made to maintain the relationship rather than snaping the permanent ties.
   
   The Court observed that in order to be a wrong within the meaning of Sec 23(1) the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled.[2]
   
4. Whether the appellant was permanently relieved of his duty to cohabit with the respondent since the decree of judicial separation was passed on the application filed by the latter?
   
   No
   
   Sec 10(2) of the Act provides that,
   “where a decree for judicial separation has been passed it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.”
   
   So, it does not vest any absolute right to any party, not to make any attempt after decree of judicial separation is passed. Moreover, it is irreversible; power is vested in the Court to rescind the decree if it considers it just and reasonable to do so on an application by either party. The decree of judicial separation does not dissolve the marriage but affords an opportunity to spouses for reconciliation.

[1] AIR 1980 Madras 294.

[2] Dharmendra Kumar v. Usha Kumar, 1977 (4) SCC 12.