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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/-.