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CASE NO.: Appeal (civil) 1473  of  1999

PETITIONER: HIRACHAND SRINIVAS MANAGAONKAR

       Vs.

RESPONDENT: SUNANDA

DATE OF JUDGMENT:       20/03/2001

BENCH: D.P. Mohapatra & Doraiswamy Raju

JUDGMENT:

D.P. MOHAPATRA,J. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  point that arises for determination in this case is short  but by no means simple.  The point is this:   Whether the  husband who has filed a petition seeking dissolution of the  marriage  by a decree of divorce under section  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?

   The   relevant   facts  of   the  case   necessary   for determination of the question may be stated thus :

   The  appellant  is  husband of the respondent.   On  the petition  filed  by the respondent- under section 10 of  the Act seeking judicial separation on the ground of adultery on the  part of the appellant a decree for judicial  separation was  passed by the High Court of Karnataka on 6.1.1981.   In the  said order the Court considering the petition filed  by the  respondent,  ordered  that the appellant shall  pay  as maintenance  Rs.100/- per month to the wife and Rs.75/-  per month  for the daughter.  Since then the order has not  been complied  with  by the appellant and the respondent has  not received  any  amount towards maintenance.   Thereafter,  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 for divorce on the ground,  inter alia, that the appellant having failed to pay the  maintenance  as ordered by the Court the  petition  for divorce  filed  by  him is liable to be rejected  as  he  is trying  to  take advantage of his own wrong for getting  the relief.   The High Court by the judgment dated 10.4.1995  in M.F.A.No.1436/1988 accepted the plea taken by the respondent and  refused  to grant the appellants prayer  for  divorce. The  said order is assailed by the appellant in this  appeal

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by special leave.

   The answer to the question formulated earlier depends on the  interpretation  of section 13(1-A) and its  interaction with Sections 10 and 23(1)(a) of the Act.

   Ms.   Kiran  Suri,  learned counsel  appearing  for  the appellant,  contended that the only condition for getting  a divorce  under  section  13(1-A) is that there has  been  no resumption  of  co-habitation  between the  parties  to  the marriage  for  a  period of one year or  upwards  after  the passing  of a decree for judicial separation in a proceeding to   which  both  the  spouses   were  parties.    If   this pre-condition is satisfied, submitted Ms.  Suri the Court is to  pass a decree of divorce.  According to Ms.Suri  section 23  (1)(a)  has  no  application to  a  case  under  section 13(1-A)(i).   Altlernatively, she contended that the wrong allegedly  committed by the appellant has no connection with the  relief sought in the proceeding i.e.  to pass a  decree of  divorce.   According to Ms.Suri an order for payment  of maintenance  is  an executable order and it is open  to  the respondent  to  realise  the  amount  due  by  initiating  a proceeding according to law.

   Per  contra  Mr.K.R.Nagaraja,  learned counsel  for  the respondent, contended that in the facts and circumstances of the case as available from the record the High Court rightly rejected the prayer of the appellant for a decree of divorce on the ground that the move was not a bona fide one, that he continues  to  live  in adultery even after the  decree  for judicial  separation  was passed and that he has  failed  to maintain  his  wife and daughter.  Mr.   Nagaraja  submitted that  granting  his prayer for a decree of divorce  will  be putting  a  premium on the wrong committed by the  appellant towards  the  respondent and her child.  Shri Nagaraja  also raised  the  contention that the High Court while  directing the  appellant  to pay maintenance to his wife and  daughter (Rs.100/- + Rs.75/- per month) did not pass any order on the prayer  made  by the respondent for education  expenses  and marriage expenses of the daughter.

   Since   the  decision  of  the   case  depends  on   the interpretation  of  the  relevant   provisions  of   section 13(1-A)(i)  and  its interaction with sections 10 and  23(1) (a)  of  the Act, the relevant portions of the two  sections are quoted hereunder:

   13.Divorce (1) Any marriage solemnized, whether before or  after  the commencement of this Act, may, on a  petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

   (i)  has  after the solemnization of the  marriage,  had voluntary  sexual intercourse with any person other than his or her spouse, or

   (i-a)  has,  after  the solemnization of  the  marriage, treated the petitioner with cruelty;  or

   (i-b)  has  deserted  the petitioner  for  a  continuous period  of not less than two years immediately preceding the presentation of the petition ;  or

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   xxx                xxx                xxx

   (1-A)  Either  party to a marriage, whenever  solemnized before  or  after  the commencement of this  Act,  may  also present  a petition for the dissolution of the marriage by a decree of divorce on the ground

   (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or  upwards  after  the  passing of a  decree  for  judicial separation in a proceeding to which they were parties;  or

   (ii)  that  there  has been no restitution  of  conjugal rights  as between the parties to the marriage for a  period of  one  year or upwards after the passing of a  decree  for restitution of conjugal rights in a proceeding to which they were parties.

Sectin 10 provides as follows :

   10.   Judicial  separation    (1) Either  party  to  a marriage,   whether   solemnized  before    or   after   the commencement of this Act, may present a petition praying for a  decree  for  judicial separation on any  of  the  grounds specified  in sub-section (1) of Section 13, and in the case of  a  wife  also on any of the grounds  specified  in  sub- section  (2)  thereof,  as grounds on which a  petition  for divorce might have been presented.

   (2)  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.

Section 23(1)(a)  provides as follows :

   23.   Decree  in  Proceedings  (1) In  any  proceeding under  this  Act  whether defended or not, if the  court  is satisfied that

   (a)  any  of the grounds for granting relief exists  and the petitioner except in cases where the relief is sought by him  on  the  ground  specified   in  sub-clause  (a),  sub- clause(b)  or  sub-clause(c) of clause (ii) of section 5  is not  in any way taking advantage of his or her own wrong  or disability for the purpose of such relief.

   Originally  nine  different grounds were available to  a husband or wife for obtaining a decree of divorce under sub- section  (1)  of  Section 13.  Under clause  (viii)  of  the sub-section  a  marriage could be dissolved by a  decree  of divorce  on a petition presented by the husband or the  wife on  the  ground  that  the   other  party  has  not  resumed cohabitation  for a period of two years or upwards after the passing  of  a decree for judicial separation  against  that party.   Under  clause (ix) of the sub- section, a  marriage could  be  dissolved  by a decree of divorce on  a  petition presented  by the husband or the wife on the ground that the other  party  had  failed  to   comply  with  a  decree  for

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restitution  of conjugal rights for a period of two years or upwards after the passing of a decree of restitution against that party.

   Amending Act No.44 of 1964, which came into force on the 20th  of  December, 1964, effected two significant  changes. Clauses  (viii)  and (ix) which constituted two of the  nine grounds  on which a marriage could be dissolved by a  decree of divorce were deleted from sub-section (1) and secondly, a new  sub-  section  i.e.   sub-section (1-A)  was  added  to Section 13.  It is clear from these amendments introduced by the  Act No.44 of 1964 that whereas prior to the amendment a petition  for  divorce could be filed only by a party  which had  obtained  a  decree  for  judicial  separation  or  for restitution  of conjugal rights, this right is now available to  either party to the marriage irrespective of whether the party presenting the petition for divorce is a decree holder or  a  judgment  debtor  under   the  decree  for   judicial separation or the decree for restitution of conjugal rights, as the case may be.  This position is incontrovertible.

   The  question  is:   whether in a petition  for  divorce filed  under sub-section (1-A) of Section 13, it is open  to the  Court to refuse to pass a decree on any of the  grounds specified  in section 23 of the Act, in so far as any one or more of them may be applicable.

   The  contention that the right conferred by sub- section (1-A)  of  Section 13 is absolute and unqualified  and  that this  newly conferred right is not subject to provisions  of Section 23 is fallacious.  This argument appears to be based on  the  erroneous  notion that to  introduce  consideration arising  under  Section  23(1) into the determination  of  a petition  filed under sub-section (1-A) of Section 13 is  to render the amendments made by the Amending Act No.44 of 1964 wholly   meaningless.   As  noted   earlier,  prior  to  the amendment under clauses (viii) and (ix) of Section 13(1) the right to apply for divorce was restricted to the party which had  obtained  a  decree  for  judicial  separation  or  for restitution  of  conjugal  rights.   Such a  right  was  not available  to the party against whom the decree was  passed. Sub-section  (1-A) of Section 13 which was introduced by the amendment  confers  such  a  right on either  party  to  the marriage  so  that  a  petition for divorce  can  after  the amendment  be filed not only by the party which had obtained a  decree  for  judicial separation or  for  restitution  of conjugal  rights but also for the party against whom such  a decree was passed.  This is the limited object and effect of the  amendment  introduced  by  Act   No.44  of  1964.   The amendment  was  not introduced in order that the  provisions contained in Section 23 should be abrogated and that is also not  the effect of the amendment.  The object of sub-section (1-A)  was merely to enlarge the right to apply for  divorce and  not  to make it compulsive that a petition for  divorce presented  under sub-section (1-A) must be allowed on a mere proof  that there was no cohabitation or restitution for the requisite  period.   The very language of Section  23  shows that it governs every proceeding under the Act and a duty is cast  on  the Court to decree the relief sought only if  the conditions  mentioned in the sub-section are satisfied,  and not  otherwise.   Therefore,  the contention raised  by  the learned  counsel  for the appellant that the  provisions  of Section  23(1) are not relevant in deciding a petition filed under  sub-section (1-A) of Section 13 of the Act, cannot be accepted.

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   The  next  contention that arises for  consideration  is whether  the appellant by refusing to pay maintenance to the wife  has committed a wrong within the meaning of  Section 23 and whether in seeking the relief of divorce he is taking advantage  of  his own wrong.  In Mullas Hindu Law  (17th Edition  at  page  121) it is stated:   Cohabitation  means living  together  as husband and wife.  It consists  of  the husband  acting  as a husband towards the wife and the  wife acting  as  a wife towards the husband, the  wife  rendering housewifely duties to the husband and the husband supporting his  wife  as  a  husband  should.   Cohabitation  does  not necessarily  depend  on whether there is sexual  intercourse between  husband and wife.  If there is sexual  intercourse, it is very strong evidence  it may be conclusive evidence that  they  are  cohabiting,  but it does  not  follow  that because  they  do not have sexual intercourse they  are  not cohabiting.   Cohabitation implies something different  from mere residence.  It must mean that the husband and wife have begun  acting  as  such and have resumed  their  status  and position as husband and wife.

                               (Emphasis supplied)

   After  the decree for judicial separation was passed  on the  petition filed by the wife it was the duty of both  the spouses  to do their part for cohabitation.  The husband was expected  to  act as a dutiful husband towards the wife  and the  wife was to act as a devoted wife towards the  husband. If  this  concept  of  both   the  spouses  making   sincere contribution  for  the  purpose of  successful  cohabitation after  a  judicial  separation  is   ordered  then  it   can reasonably  be  said that in the facts and circumstances  of the  case the husband in refusing to pay maintenance to  the wife  failed  to act as a husband.  Thereby he  committed  a wrong  within  the  meaning  of Section  23  of  the  Act. Therefore,  the  High  Court was justified in  declining  to allow  the  prayer  of the husband for  dissolution  of  the marriage by divorce under Section 13(1-A) of the Act.

   In  this  connection  it is also necessary to  clear  an impression  regarding  the  position that once  a  cause  of action for getting a decree of divorce under section 13(1-A) of  the  Act arises the right to get a divorce  crystallises and  the Court has to grant the relief of divorce sought  by the   applicant.    This   impression    is   based   on   a mis-interpretation of the provision in section 13(1-A).  All that is provided in the said section is that either party to a  marriage  may present a petition for dissolution  of  the marriage by a decree of divorce on the ground that there has been  no  resumption of cohabitation between the parties  to the  marriage  for  a period of one year or more  after  the passing  of a decree for judicial separation in a proceeding to  which  they  were  parties or that  there  has  been  no restitution of conjugal rights as between the parties to the marriage  for a period of one year or more after the passing of  a  decree  for  restitution  of  conjugal  rights  in  a proceeding  to  which  both the spouses were  parties.   The section fairly read, only enables either party to a marriage to  file an application for dissolution of the marriage by a decree of divorce on any of the grounds stated therein.  The section  does  not provide that once the applicant makes  an application  alleging  fulfilment 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

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will  run  counter to the provisions in section 23(1)(a)  or (b)  of  the Act.  In section 23(1) it is laid down that  if the  Court is satisfied that any of the grounds for granting relief  exists and further that the petitioner is not in any way taking advantage of his or her own wrong or disability for  the purpose of such relief and in clause (b) a  mandate is  given to the Court to satisfy itself that in the case of a  petition  based on the ground specified in clause (i)  of sub-section(1)  of section 13, the petitioner has not in any manner  been accessory to or connived at or condoned the act or  acts complained of, or where the ground of the  petition is cruelty the petitioner has not in any manner condoned the cruelty  and in (bb) when a divorce is sought on the  ground of  mutual  consent  such consent has not been  obtained  by force,  fraud  or  undue influence.  If  the  provisions  in section  13(1A)  and section 23(1)(a) are read together  the position that emerges is 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.  It has to be kept in mind that relationship between the  spouses is a matter concerning human life.  Human  life does  not run on dotted lines or charted course laid down by statute.   It  has  also  to be kept  in  mind  that  before granting  the  prayer of the petitioner to permanently  snap the  relationship between the parties to the marriage  every attempt  should  be  made to maintain the  sanctity  of  the relationship  which  is  of  importance  not  only  for  the individuals  or  their  children but also for  the  society. Whether  the  relief  of dissolution of the  marriage  by  a decree  of  divorce is to be granted or not depends  on  the facts  and  circumstances of the case.  In such a matter  it will  be  too hazardous to lay down a general  principle  of universal application.

   In  this  connection the decision of this Court  in  the case  of Dharmendra Kumar vs.  Usha Kumar (1977 (4) SCC  12) is  very often cited.  Therein this Court taking note of the factual  position  that  the  only allegation  made  in  the written statement was that the petitioner refused to receive some  of  the letters written by the appellant and  did  not respond  to  her other attempts to make her live  with  him, held  that  the allegations even if true, did not amount  to misconduct grave enough to disentitle the wife to the relief she  has asked for.  In that connection this Court  observed that  in order to be a wrong within the meaning of section 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.  The decision  cannot  be  read  to  be  laying  down  a  general principle  that the petitioner in an application for divorce is  entitled  to  the  relief  merely  on  establishing  the existence  of the ground pleaded by him or her in support of the  relief;  nor that the decision lays down the  principle that  the  Court has no discretion to decline relief to  the petitioner  in  a case where the fulfillment of  the  ground pleaded by him or her is established.

   In  this  connection  another question that  arises  for consideration  is the meaning and import of section 10(2) of the  Act  in which it is laid down 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

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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.   The question is whether applying this statutory provision to the case  in hand can it be said that the appellant was relieved of  the duty to cohabit with the respondent since the decree for  judicial separation has been passed on the  application filed   by   the  latter.   On  a  fair   reading   of   the sub-section(2) it is clear that the provision applies to the petitioner  on  whose  application the decree  for  judicial separation   has  been  passed.    Even  assuming  that  the provision  extends  to  both  petitioner   as  well  as  the respondent  it  does  not  vest any absolute  right  in  the petitioner  or  the respondent not to make any  attempt  for cohabitation  with  the  other party after  the  decree  for judicial  separation  has  been passed.   As  the  provision clearly  provides the decree for judicial separation is  not final in the sense that 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  effect of the decree is that certain mutual rights  and obligations  arising  from  the  marriage  are  as  it  were suspended and the rights and duties prescribed in the decree are   substituted  therefor.   The   decree   for   judicial separation does not sever or dissolve the marriage tie which continues  to  subsist.   It affords an opportunity  to  the spouse for reconciliation and re-adjustment.  The decree may fall  by  a  conciliation of the parties in which  case  the rights  of respective parties which float from the  marriage and  were suspended are restored.  Therefore the  impression that  section  10(2) vests a right in the petitioner to  get the  decree of divorce notwithstanding the fact that he  has not  made  any attempt for cohabitation with the  respondent and  has  even  acted  in a manner to thwart  any  move  for cohabitation  does not flow from a reasonable interpretation of  the statutory provisions.  At the cost of repetition  it may be stated here that the object and purpose of the Act is to maintain the marital relationship between the spouses and not to encourage snapping of such relationship.

   Now  we come to the crucial question which  specifically arises  for  determination in the case;  whether refusal  to pay alimony by the appellant is a wrong within the meaning of  section  23(1)  (a) of the Act so as to  disentitle  the appellant  to  the  relief of divorce.  The  answer  to  the question,  as  noted  earlier,  depends  on  the  facts  and circumstances  of  the  case  and no  general  principle  or straight-jacket  formula  can be laid down for the  purpose. We have already held that even after the decree for judicial separation was passed by the Court on the petition presented by  the wife it was expected that both the spouses will make sincere  efforts  for a conciliation and  cohabitation  with each  other, which means that the husband should behave as a dutiful  husband  and  the wife should behave as  a  devoted wife.   In  the  present case the respondent  has  not  only failed  to make any such attempt but has also refused to pay the  small amount of Rs.100 as maintenance for the wife  and has  been marking time for expiry of the statutory period of one  year after the decree of judicial separation so that he may easily get a decree of divorce.  In the circumstances it can  reasonably  be  said  that  he  not  only  commits  the matrimonial  wrong  in  refusing to maintain  his  wife  and further  estrange  the relation creating acrimony  rendering any  reapprochement  impossible  but   also  tries  to  take advantage  of  the  said wrong for getting the  relief  of

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divorce.  Such conduct in committing a default cannot in the facts  and circumstances of the case be brushed aside as not a matter of sufficient importance to disentitle him to get a decree of divorce under section 13(1A).

   In this connection the decision of a single Judge of the Calcutta  High  Court  in  the case  of  Sumitra  Manna  vs. Gobinda Chandra Manna AIR 1988 Cal 192 may be referred where it  was held that if alimony or maintenance is ordered to be paid  under  the  provisions  of   the  Hindu  Adoption  and Maintenance  Act, 1956 or the Codes of Criminal Procedure of 1973  or  of 1898 and the husband does not comply  with  the order,  the  same may under certain circumstances secure  an advantage  to  the  wife in obtaining a decree  for  divorce under section 13(2) (iii) of that Act.  But no advantage can or  does  accrue  to a husband for his failure  to  pay  any alimony or maintenance to the wife in obtaining a decree for divorce   against  the  wife   under  section  13(1A)   and, therefore,  the  husband  cannot be said to be  in  any  way taking  advantage of such non-payment within the meaning  of section  23(1)(a)  in prosecuting his petition  for  divorce under  section 13(1A).  This decision, which proceeds upon a narrow  construction  of  the relevant  provisions  throwing overboard the laudable object underlying Section 23(1)(a) of the Act, in our view, does not lay down the correct position of law.

   The question that remains to be considered is whether in the  facts  and  circumstances  of  the  case  in  hand  the appellant-  husband can be said to have committed and to  be committing  a wrong within the meaning of section 23(1)(a) by  continuing to live with the mistress even after  passing of  the  decree  for judicial separation on  the  ground  of adultery.   The respondent presented the petition seeking  a decree  of  judicial  separation  on  the  ground  that  the appellant  has  been living in adultery since he  is  living with  another  lady during the subsistence of  the  marriage with  her.  The Court accepted the allegation and passed the decree  for judicial separation.  Even after the decree  the appellant  made  no  attempt  to  make  any  change  in  the situation  and  continued  to live with  the  mistress.   To pursue  still into such an adulterous life with no  remorse, even   thereafter,   is  yet   another  wrong   which   he deliberately  continued to commit, to thwart any attempt  to re-unite  and, in such circumstances can it be said that the passing  of a decree for judicial separation has put an  end to the allegation of adultery;  or that the chapter has been closed  by the decree for judicial separation and  therefore he  cannot be said to have committed a wrong by continuing to  live  with mistress.  The learned counsel appearing  for the  appellant placed reliance on a Division Bench  decision of  the  Gujarat  High  Court  in the case  of  Bal  Mani  v Jayantilal  Dahyabhai, AIR 1979 Guj.  209, in which the view was taken that matrimonial offence of adultery has exhausted itself  when the decree for judicial separation was granted, and  therefore,  it cannot be said that it is a new fact  or circumstance  amounting  to  wrong which will  stand  as  an obstacle  in  the way of the husband to successfully  obtain the  relief which he claims in the divorce proceedings,  and contended  that the question should be answered in favour of the  husband as has been done by the Gujarat High Court.  We are  unable to accept the contention.  Living in adultery on the  part  of  the  husband in this  case  is  a  continuing matrimonial  offence.   The offence does not get  frozen  or

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wiped  out  merely  on  passing of  a  decree  for  judicial separation  which  as noted earlier merely suspends  certain duties  and  obligations of the spouses in  connection  with their  marriage  and does not snap the matrimonial tie.   In that  view of the matter accepting the contention raised  on behalf  of the appellant would, in our view, defeat the very purpose  of passing the decree for judicial separation.  The decision  of  the Gujarat High Court does not lay  down  the correct  position of law.  On the other hand the decision of the  Madras  High  Court  in the  case  of  Soundarammal  v. Sundara  Mahalinga  Nadar, AIR 1980 Madras 294, in  which  a single Judge took the view that the husband who continued to live  in adultery even after decree at the instance of  wife could not succeed in petition seeking decree for divorce and that  section 23(1)(a) barred the relief, has our  approval. Therein  the learned Judge held and in our view rightly that illegality and immorality cannot be countenanced as aids for a person to secure relief in matrimonial matters.

   On  the  discussions and the analysis in  the  foregoing paragraphs  the  position that emerges is that the  question formulated  earlier  is to be answered in  the  affirmative. Therefore, the High Court, in the facts and circumstances of the  case, was right in declining the relief of a decree  of divorce  to  the  appellant.    Accordingly  the  appeal  is dismissed with costs.  Hearing fee assessed at Rs.15,000/-.