Whether the court below failed to apply the principle laid down in Section 13(1-A) of the Hindu Marriage Act, 1955?
Citation: I (1991) DMC 20
Date of Judgement: 25th April, 1990
Bench: K.M. Natarajan
Facts:
- Appellant/husband (hereinafter referred to as A) and Respondent/wife (hereinafter referred to as R) were married on 31-01-1975. Thereafter he started teasing her alleging insufficiency of gifts by her parents and also the presence of a small congenital lump on the respondent’s shoulder, which was known to him before marriage.
- On 13-02-1975, R was sent away to come back with larger presents and jewels, which she was unable to fulfill. On 28-7-1975, A issued a notice to R alleging that she had left the house on her own accord, to which R sent a reply denying the allegations and stating she was deserted by A. Thereupon, A filed a petition for restitution of conjugal rights. R in her counter submitted that she was willing and anxious to join the appellant by narrating the circumstances under which she was deserted by her husband. On 21-2-1977 the court granted a decree for restitution of conjugal rights.
- Thereafter on 08-03-1977, R sent a notice to A that she is willing to join and lead a conjugal life with him. A did not send any reply. R made various attempts to join A, but in vain. Thereupon, R filed a complaint at the Police Station, to which A gave in writing that he declined to take her back to his house. Hence, she claimed maintenance under Section 18 of the Hindu Adoptions and Maintenance Act.
- The suit was resisted by A and he submitted that R and her parents played a deception on him by not disclosing a large lump on her back. He denied having ill-treated the respondent on the inadequacy of gifts etc. He filed for divorce on the ground that she has not joined him for more than one year after the decree for restitution of conjugal rights.
Lower Court Decision:
The trial Judge came to the conclusion that, it is A who deserted R without reasonable or probable cause and the wife is entitled to maintenance. However, trial Court negative the claim for a charge over the property as the property was not specified. The trial court also dismissed divorce plea holding that it was only A who had rejected the offer of R to come and live with him. Appeal was made by A to the High Court on the following substantial questions of law.
Judgement:
The HC held that it is clear from the materials available in the case that the appellant has got the decree for restitution of conjugal rights only to see that he gets a further decree for divorce. In the result, both the appeals fail and are dismissed.
Key Issues discussed:
- Whether the court below failed to apply the principle laid down in Section 13(1-A) of the Hindu Marriage Act, 1955?
No
The petition for dissolution of marriage was filed under Section 13(1-A). In Geeta Lakshmi v G.V.R.K. Sarveswara Rao[1] court held that, “Before and after the amendment of the Hindu Marriage Act, the provisions of Section 13 are subject to provisions of Section 23(1)(a) of the Act. The amendment to Section 13 must be limited to the extent to which the amendments have been made. They cannot be given an extended operation. Section 13 cannot be taken out of the limits of Section 23(1)(a).” In Madhukar v. Saral[2] it was held that “in granting relief under Section 13(1-A) the Court will and must take into consideration Section 23(1) and consider the conduct of the petitioner subsequent to the passing of the decree for judicial separation or restitution of conjugal rights and not grant relief to a party who is taking advantage of his own wrong.”
It is alleged that the appellant willfully neglected to maintain her and consequently deserted her without probable and reasonable cause in spite of repeated requests and notices. As observed by the courts, it is not mere non-compliance of the decree, but it is an act of positive wrong on the part of the husband and in view of Section 23(1-A), he is not entitled to the relief under Section 13(1-A).
- Whether the Court below is justified in refusing a decree for divorce for the appellant on the basis of Section 23(1) of the Hindu Marriage Act, 1955?
Yes
In Bimle Devi v. Singh Raj[3] “The provisions of Section 23(1)(a) cannot be invoked to refuse the relief under Section 13(1-A)(ii) on the ground of non-compliance of a decree of restitution of conjugal rights where there has not been restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of decree for restitution of conjugal rights in proceedings in which they were parties. There is no provision in the Code of Civil Procedure by which the physical custody of the spouse, who has suffered the decree, can be made over to the spouse who obtained the decree for restitution of conjugal rights. Thus, merely because the spouse, who suffered the decree, refused to resume cohabitation, would not be a ground to invoke the provisions of Section 23(1)(a) so as to plead that the said spouse is taking advantage of his or her own wrong.”
After the decree, the husband not only, not complied with the decree, but did positive acts by ill-treating her and finally drove her away from the house. The above conduct of the appellant is also relevant in deciding the question of “wrong” as contemplated under Section 23(1-A) of the Act. It is not a case of mere failure to render conjugal rights but something more and it is a case of misconduct serious enough so as to justify negativing the claim for dissolution of marriage.
- Whether a decree for divorce should automatically follow on the expiry of the period of one year from the date of decree for restitution of conjugal rights?
No
The Court would not accept the contention that the appellant is entitled to a decree of divorce as the respondent has not joined the appellant within a period of one year from the date of the order. The conduct of the appellant is also relevant in deciding the question of “wrong” as contemplated under Section 23(1-A) of the Act. It is not a case of mere failure to render conjugal rights but something more and it is a case of misconduct serious enough so as to justify negating the claim for dissolution of marriage. As in the instant case the appellant filed the very petition for restitution of conjugal rights only to obtain a decree of divorce and with that view, even after the decree of restitution of conjugal rights was passed on his application when the respondent did not contest the same but expressed her readiness and willingness to join the appellant and in spite of many requests by means of notices through advocate and mediators and when the respondent herself went along with her parents, she was not allowed to join the appellant and in the circumstances, the appellant cannot take advantage of his own wrong and obtain a decree of divorce.
The Court would not accept the contention that the appellant is entitled to a decree of divorce as the respondent has not joined the appellant within a period of one year from the date of the order.
- Whether the plaintiff is entitled to maintenance even after a right to seek divorce under the provisions of Hindu Marriage Act has accrued to the appellant?
Yes
The defendant deserted the plaintiff without reasonable and probable cause and therefore she is entitled to claim separate maintenance. When the decision is not found in favor of the appellant, then automatically he is liable to pay maintenance as claimed by the respondent. It is also worthwhile to note that the petition for dissolution of marriage under Section 13(1-A) was filed, during the pendency of the maintenance proceedings instituted by the wife and also long after the institution of the said proceedings. The husband obtained the decree for restitution of conjugal rights, not to act as per the decree. On the other hand, from the various acts attributed to him, it is clear that he deserted the wife without reasonable and probable cause. The wife was granted a decree for separate maintenance and in spite of her attempts to join her husband, her husband refused to allow her to enter the house and on the other hand, he turned out her request and her relations and drove her away. In view of the findings on substantial questions of law and in view of the concurrent findings of both the courts below that the appellant deserted the respondent without reasonable and probable cause and the wife is entitled to maintenance and in view of the fact that the concurrent finding with regard to liability as well as quantum have not been disputed in the appeal.
[1] AIR 1983 AP 111.
[2] AIR 1973 Bom 55.
[3] AIR 1977 P & H 157.