Man Mohan Kapoor vs Smt. Kailash Kumari

A.S. Anand, J.—This civil 1st Misc. appeal is directed against the judgment arid decree dated Feb. 20, 1979, passed by District Judge,

Jammu, dismissing the petition for divorce filed by the appellant.

The facts leading to the filing of the appeal may be noticed first. The appellant is the husband. Respondent is the wife, the marriage between the

parties was solemnized on 7-3-1969. Parties lived together for some time. It appears that some matrimonial differences arose between the parties

and an application for restitution of conjugal rights was filed by the appellant on 28-7-1970 and an ex parte decree was obtained by him on 3-11-

1971. The appellant filed an execution application on 4/7th Mar., 1972, to which objections were filed by the respondent on 29-1-1973. The

execution application was, however, consigned to records in absence of the parties on 8-5-1973. The appellant filed a petition for divorce - on

28-12-1973. The following issues were framed on 20-3-1974:--

Whether the non-applicant has not complied with the decree of restitution of conjugal rights dated 3-11-1973? O. P. P.

Whether Section 13(1)(A) of the Central Hindu Marriage Act is applicable to the State of J. & K. ? O. P. D.

Whether the petitioner in asking for the relief of divorce is taking advantage of his own wrong? O. P. Non-applicant.

Initially, the onus of issue No. 3 was on respondent. She filed a revision in the High Court and the revision was allowed and the onus was

changed in 1975, and modified issue, therefore, reads as follows:--

Whether the petitioner, husband in asking for divorce is not taking advantage of his own wrong or disability? O. P. P.

The appellant examined himself as his own witness and did not produce any other witness. The respondent, on the other hand, examined; Miss

Phool Ghai, Subash Chander Rekhi, Ram Singh, Kewal Krishan, Romesh Kumar, Anand Saroop, Omparkash, Dharm Paul Ashutosh Sharma and

herself appeared in the witness box.

After appraising the evidence,, the petition for divorce was rejected on 20-2-1979. Hence this appeal.

I shall refer to the evidence during the course of discussion as and where it is relevant.

Mr. H.L. Bhagotra, learned counsel for the appellant, has urged that the learned District Judge fell in error in dismissing the petition for divorce

without taking into consideration the attitude of the respondent and her written statement filed in the petition for restitution of conjugal rights. The

learned counsel further urged that the evidence had not been properly appreciated; the onus of issues had been wrongly placed and that the

provisions of Section 23(1) of the Hindu Marriage Act bad also been wrongly interpreted. Argued the learned counsel, that after coming into force

of the J. & K. Hindu Marriage Act, 1980, the position of Law had changed and the non-cohabitation for the statutory period by itself entitled the

appellant to a decree for divorce and it was immaterial as to which party was at fault in this behalf. Learned counsel further submitted that since the

respondent did not make any attempt to satisfy the decree, she could not be permitted to resist the petition for divorce, sought cm the ground that

there bad been no restitution of conjugal rights between the parties to the marriage, after passing of a decree for restitution of conjugal rights. In the

alternative, Mr. Bhagotra argued that even if it be found that the husband had resisted the satisfaction of the decree, the resistance did not amount

to a wrong within the meaning of Section 23 of the Hindu Marriage Act, 1955, and as such the learned District Judge was in error, in taking

recourse to the provisions of Section 23 of the Hindu Marriage Act for denying a decree of divorce to the husband.

In reply Mr. R.P. Sethi, learned counsel for the respondent, has submitted that the wife respondent did not contest the petition for restitution of

conjugal rights and that by itself establishes her bona fide that she did not resist the resumption of cohabitation between the parties and that she had

no intention to break the matrimonial ties. Learned counsel submitted, that initially the onus of issue No. 3 was on the respondent, but after she filed

the revision in the High Court, the onus was changed, and therefore, it did not lie in the mouth of the appellant to say that the onus of issues had

been wrongly placed. According to learned counsel, the J. & K. Hindu Marriage Act, 1980, did not apply to the facts and circumstances of the

case because the Act was not in force when the petition u/s 9 was filed or when the decree was passed or when the execution application was filed

and that the Act was also not in force when the petition u/s 13 was filed, dismissed and appealed against and, therefore, it is not open to the

appellant to say that either party had the right to file a petition for divorce after a decree for restitution of conjugal rights had remained unsatisfied

irrespective of the fact whether the party seeking divorce was taking advantage of his own wrong. It is further urged that there has been proper

appreciation of evidence as well as application of law and that the petition for divorce has been rightly rejected by the learned District Judge.

Reference has been made by the learned counsel to various interim orders passed by the Court in the execution application to urge that the

husband appellant after having obtained the decree for restitution of conjugal rights was only marking time so that he could file a petition for divorce

on the ground of non-satisfaction of the decree for restitution of conjugal rights and that the respondent had obtained the decree for restitution of

conjugal rights only to be able to ask for divorce subsequently.

I have given my careful consideration to the respective contentions raised, at the bar and have perused the record.

Before proceeding further, it would be of advantage to take note of certain provisions of J. & K. Hindu Marriage Act, 1955, as well as the J. &

K. Hindu Marriage Act of 1980.

Section 23 of the Hindu Marriage Act of 1955 reads as follows :

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 is not in any way taking advantage of his or her own wrong or disability for the

purpose of such relief, and

(b) where the ground of the petition is the ground specified to Clause (f) of Sub-section (1) of Section 10 or 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

(c) the petition, is not presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceeding and

(e) there is no other legal ground why relief should not be granted,

then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the Court in the first instance in every case where it is possible so to

do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties"" This

section provides that while granting relief, the Court has to satisfy itself whether the petitioner is not, in any way, taking advantage of his own wrong

for the purposes of such relief.

Section 28 (1) (a) of the 1980 Act provides as under :--

28, 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 Clause (ii) of Section 5 or

Sub-section (2) of Section 13 is not in any way taking advantage of his or her own wrong, or disability for the purpose of such relief; and

.....................

According to the aforesaid provision, if the Court is satisfied that any of the grounds for granting relief exists, with the exceptions as detailed

therein the Court shall proceed to pass the decree, under the Act of 1980, therefore with a view to get divorce u/s 13(2) all that is required to be

established is that there has been non-cohabitation for the statutory period after the passing of the decree for restitution of conjugal rights or judicial

separation and it is not material as to which party was at fault in this behalf. The non-cohabitation is the sine qua non for grant of relief u/s 13 (2) of

J. & K. Hindu Marriage Act, 1980. This is a marked departure from the 1955 Act but, in my opinion, recourse to the provisions of J. & K. Hindu

Marriage Act, 1980, with a view to set at naught the judgment and the decree of the learned District Judge is not permissible. Admittedly, the

1980 Act was not in force when the petition u/s 9 of the Hindu Marriage Act, 1955, was filed. It was also not in force when the decree for

restitution of conjugal rights was passed or even when the execution application was filed and subsequently consigned to records. Under the 1955

Act, after the decree for restitution of conjugal rights had been passed, the non-satisfaction of that decree for a period of two years would have

entitled the husband to a decree for divorce provided he was not taking advantage of his own wrong. The decree for restitution of conjugal rights

having been passed on 3-11-1971, the husband could succeed in his getting divorce after 3-11-1971 provided he was able to satisfy the Court

that he was not taking advantage of his own wrong (vide Section 23 of the Act). Mere non-satisfaction of the decree did not give the husband any

right to seek divorce if the Court was satisfied that he was taking advantage of his own wrong. This right was limited to be exercised only by the

party in whose favour the decree had been passed. The judgment-debtor could not file a petition for divorce on the ground of non-satisfaction of

the decree. Under the 1980 Act, either party has been given the right to seek divorce if the decree has not been satisfied and that right can

obviously be exercised by either party only if the decree had been passed after the coming into force of the 1980 Act. The decree passed and the

appeal filed against a decree passed under the 1955 Act has to be tested for its validity on the provisions of the 1955 Act only. Under the 1955

Act, a party who merely wanted a paper decree without any desire to resume cohabitation was not entitled to get decree for divorce when it was

established to the satisfaction of the Court that the party claiming the relief in fact was trying to take advantage of its own wrong. Section 36 of the

1980 Act while repealing the J. & K. Hindu Marriage Act, 1955, provides :--

Repeal and saving:--(1) The Jammu and Kashmir Hindu Marriage Act, 1955 (VIII of 1955) is hereby repealed.

(2) Notwithstanding such repeal nothing in this Act shall affect :--

(a) the validity, effect or consequence of anything done or suffered to be done wider the said Act before the date on which the provisions of this

Act come into force;

(b) any obligation or liability already incurred before the commencement of this Act;

(c) any legal proceeding or remedy in respect of any privilege, obligation, liability; and such legal proceeding or remedy may be instituted,

continued or enforced under this Act.

(3) Nothing in this Act shall or shall be deemed to affect:--

(a) the validity of a marriage solemnized between Hindus, before the commencement of this Act, which is otherwise valid, by reason only of the

fact that the parties thereto belong to the same gotra or pravara, belonged to different religions, castes or the subdivisions of the same caste; and

(b) any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage, whether solemnized

before or after the commencement of this Act.

A plain reading of the aforesaid provision shows that the obligations or, liabilities incurred under the 1955 Act are totally saved. Sub-clause (c)

of Sub-section (2) of Section 36 has to be read along with Clauses (a) and (b) and when so read, it becomes obvious that it saves in toto the

obligations incurred before the commencement of the 1980 Act. Since, the appellant had incurred an obligation under the old Act to satisfy the

decree of restitution of conjugal rights and to suffer the dismissal of his petition for divorce if he had himself been found to have taken advantage of

his own wrong, the saving clause itself saves those proceedings and then, coming into force of the Hindu Marriage Act, 1980, cannot come to the

aid of the appellant to obtain, divorce if it is found on facts that the appellant is taking advantage of his own wrong in seeking the relief of divorce.

Before coming to the facts of the instant case, it would be desirable with a view to appreciate the arguments of Mr. Bhagotra, to notice the

distinction, for the purposes of Section 13, between 'a decree for restitution of conjugal rights' and 'a decree for judicial separation' I am unable to

agree with the learned counsel that there is no difference between a decree for restitution of conjugal rights and 'a decree for judicial separation' in

so far as the petition for dissolution of marriage by a decree of divorce u/s 13(2) is concerned. In the first place, cohabitation after a decree for

judicial separation would defeat the decree whereas cohabitation after a decree for restitution of conjugal rights satisfies the decree. The only

common thread that appears to be passing through the two provisions of Section 13 of 1955 Act is that a decree for divorce may be granted on

account of non-resumption of cohabitation after a decree for judicial separation or restitution of conjugal rights has been passed provided the

Court is satisfied that the party seeking relief is not taking advantage of its wrong. This is essential because either of the two decrees were not

meant to be used only for getting divorce, if the party seeking relief had found that he could not get divorce on any of the available grounds

because of the non-existence of those grounds. The legislature while providing for the relief of restitution of conjugal rights intended that the party

obtaining the decree should bona fide desire restitution of conjugal rights and not that he should obtain a decree, later on to be made basis for

divorce only. A party seeking restitution of conjugal rights must establish its bona fide that it, in fact, wants the restitution of conjugal rights and that

it does not only want a paper decree. Want of bona fide on the part of the party seeking a decree for restitution of conjugal rights would initially

disentitle him to the decree and where he succeeds in obtaining the decree for restitution of conjugal rights, subsequently disentitle the party from

seeking divorce on the ground of non-restitution of conjugal rights, where the party itself is responsible for non-restitution. I am also unable to

agree with Mr. Bhagotra that non-cohabitation is not a 'wrong' within the meaning of Section 23 of the Hindu Marriage Act. A 'wrong' is,

technically speaking an injury and whether in a given set of facts and circumstances it constitutes a 'wrong' or not will depend upon the nature of the

case. Non-cohabitation, in a petition for judicial separation, may not be a 'wrong' but non-restitution of conjugal rights in a petition for restitution of

conjugal rights would be a, 'wrong', where the Court is satisfied of the lack of bona fide on the part of the party seeking relief on the ground of

non-cohabitation after the decree was passed. In judicial separation proceedings, the decree-holder may thwart the attempts of the judgment-

debtor to resume cohabitation because he is backed by an authority of law to do so, but in a case for restitution of conjugal rights such a thwarting

would be a 'wrong' disentitling the party to seek divorce by taking advantage of his own wrong. In this background, let me now revert to the facts

and circumstances of the instant case.

In the instant case, in view of what has been said above, Section 23(1) of 1955 Act has definite relevance and application. There is also no

conflict between Sub-section (1-A) of Section 13 of 1955 Act on the one hand and Section 23(1) on the other. The two sub-sections deal with

different matters. Whereas Section 13(1-A) deals with the right of either party to the marriage to apply for divorce on the grounds specified

therein, Section 23(1) deals with the obligation of the Court while passing a decree. There is no warrant in the language of Sub-section (1-A) of

Section 13 for holding that it confers any absolute right on a party to apply for and obtain a decree of divorce in a petition filed under Sub-section

(1-A). Not only is it open to the Court to, consider whether the provisions mentioned in Section 23(1) in a given casa are satisfied or not, the

Court is also under a statutory obligation to consider that question. Section 23 is in the nature of an overriding provision, not only for the reason

that it governs every proceeding under the Act but for the more important reason that it is only if the conditions mentioned in Subsection (1) are

satisfied, and not otherwise, that the Court shall decree the relief sought. In all proceedings under the. Act, the Court has to be satisfied u/s 23

about the various matters, detailed therein, and if the Court is not so satisfied then the relief has to be refused. Before granting relief too Court as of

necessity, has to be satisfied that the party seeking relief is mot taking advantage of his own wrong. After a decree for restitution of conjugal rights

has been passed at the instance of the husband, it is his duty to make efforts to see that the wife, against whom the decree has been passed

complies with the decree. He must make it possible for the wife to return to him and satisfy the decree and should afford her the opportunity to

resume maritalties. He must also establish his sincere desire to resume marital ties after obtaining a decree for restitution of conjugal rights. He

cannot avoid the restitution of conjugal rights, for the statutory period after the decree, and then make a petition for divorce on the ground that the

decree has not been complied with. In my opinion, it could not possibly be the intention of the legislature that the wife, who did not contest the

petition for restitution of conjugal rights and was interested in resuming marital obligations, should have to face divorce proceedings not due to any

fault of her but because the decree-holder husband saw to it, by his act and conduct, that the decree for restitution of conjugal rights is not

satisfied. If it was otherwise, it would be putting premium on 'wrong' of the decree-holder. It depends upon the facts and circumstances of each

case, to determine whether the decree-holder and the judgment-debtor wanted the matrimonial ties to completely come to an end or whether they

did not so want after a decree for restitution of conjugal rights had been passed. It is of paramount importance in matrimonial disputes, particularly,

while dealing with the question of restitution of conjugal rights and the effect of non-compliance with the decree, that the Court should be satisfied

about the bona fide of the party seeking relief. If it is the judgment-debtor who wilfully fails to comply with the decree, relief of divorce may be

granted to the decree-holder, but if it is the decree-holder who thwarts the attempts of the judgment-debtor to resume marital ties, then on the

basis of non-satisfaction of the decree only, the Court would refuse to grant relief to the decree-holder.

In the present case it was the husband (appellant) who had filed the application for restitution of conjugal rights on 28-7-1970. The wife did

not contest that petition and obviously expressed her desire for such a decree to be passed. She allowed an ex parte decree for restitution of

conjugal rights to be passed against her. That in a way established her desire that she did not want that the matrimonial ties between the parties

should come to an end and instead desired the resumption of matrimonial ties. After the decree for restitution of conjugal rights was passed, the

Court had to see as to which party was responsible for the non-satisfaction of the decree. In this connection it will be relevant to see as to what

steps did the husband take to see that the decree did not remain only a paper decree and that the decree was satisfied. The only evidence led by

the husband is his own evidence. In his statement recorded on 9-4-1974, after admitting that the parties were married and that there is a child born

out of that wedlock, he went on to state that the wife stayed away from the matrimonial home without any justification and that he sent various

persons to her requesting her to return to the matrimonial home, but she did not return. (The husband however, did not examine any witness who

could lend credence to this part of his version). He went on to add that in July, 1970, he had fifed a petition for restitution of conjugal rights and

had obtained a decree. Ha stated that the decree was ex parte. Explaining what steps he took to have the decree satisfied, he stated, that after the

decree was passed, he waited for the respondent to return to him, but she did not come and that he thus filed a petition for execution of the decree,

and went on to add that after the passing of the decree, the respondent made no efforts to resume cohabitation with him. In his words: --

He, however, did not say as to what efforts he had made to see that there was restitution of conjugal rights between the parties, after having

obtained the ex parte decree. His evidence is singularly silent about any overt act on his part to have the decree satisfied. From his evidence, it

appears that he was satisfied with the paper decree only and did not actually want resumption of matrimonial ties. He was perhaps making time to

file a petition for divorce u/s 13(2)(i). Lot of emphasis has been laid by Mr. Bhagotra to the execution application filed by the husband in March.

1972, to assert that the husband was genuinely interested in resumption of matrimonial ties. 1 am afraid, I cannot agree. Filing of the execution

application also was only designed to serve as evidence in the subsequent divorce proceedings and there was no desire on the part of I he husband

to resume matrimonial obligations. A perusal of the interim orders dt. 29-12-1972 and 27- 3-1973, on the execution file, shows that the judgment-

debtor, as soon as she appeared in the Court through her counsel, submitted before the Court that she was prepared to go and live with the

husband. It appears that this position did not satisfy the husband, who was not genuinely interested in the restitution of conjugal rights and he did

not pursue the execution application, nor asked for any order by the executing Court on the basis of the submission made by the counsel for the

wife, and absented himself from the proceedings. Ultimately, on 8-5-1973, the execution application was consigned to records in the absence of

the parties. Had the husband been actually interested in the resumption of matrimonial ties, he should have taken the wife back to his fold. He,

however, did nothing of this kind. On the other hand, only 7 months, thereafter, the husband filed an application for divorce. During his cross-

examination, the husband was specifically asked as to what steps he had taken to bring the respondent back to the matrimonial home after the

decree and he admitted that: (......)

The reason given for this was that no one from his side was prepared to go there because the respondent used to insult the mediators. He,

however, admitted that all such persons who had been so insulted were alive and that he had not examined any one out of them as his witness. He

also admitted that after he learnt that the execution application had been consigned to records, he did not file any other application for execution of

the decree. He expressed his ignorance as to whether the respondent had, through her counsel, offered to satisfy the decree by restituting the

conjugal rights with him. In his further cross-examination on 9-5-1975, he let the cat out of the bag when he stated that : (..........)

In his earlier statement dt. 8-5-1975, while explaining what was the threat that he had from the wife, he admitted that she had never given him any

beating nor done anything else to his physical self. He, however, stated that she was causing him mental worry and went to explain the same:

(........)

In the very next breath he, however, conceded : (.......)

From the statement of the husband, read as a whole, an impression has been created on my mind that he had obtained the decree for restitution of

conjugal rights only to be made the basis for a decree of divorce. By his own conduct, the husband saw to it that the decree was not satisfied.

Appearing as her own witness, the wife on 6-11-1977, stated that after the decree for restitution of conjugal rights was passed she wanted to

resume matrimonial obligations and had also told her relations of her intention of going to her husband and had through her counsel also made an

application to the Court where execution proceedings were pending that she was prepared to satisfy the decree and go and live with her husband

She stated :--

after passing of the decree for restitution the active step which was taken by me was that I asked my relatives and friends and relations of the

petition to make me to live with my husband.

She examined Miss Phool Gai, Romesh Kumar, Anand Saroop Dharam Paul and Ashutosh Sharma in support of her assertions. All these

witnesses have categorically supported her in this behalf and have deposed that the attitude of the husband had always been mala fide and he did

not wish the restitution of conjugal rights with the wife while the wife was always willing to satisfy the decree. These witnesses are either friends of

the wife or her relations and friends of the family and in the normal course of event are the natural witnesses whose services would be utilized by

the wife to seek settlement of the matrimonial dispute. Their evidence does not suffer from any blemish. These witnesses have asserted that in spite

of the fact that the wife had offered herself to resume matrimonial obligations, she was given a cold shoulder by her husband who despite having

obtained the decree for restitution of conjugal rights was not actually interested in resuming cohabitation with her. From the evidence on the record,

1 am satisfied that the respondent was ready to live with the appellant and it was the appellant who was thwarting her efforts. The appellant only

wanted the statutory period to elapse so that he could file a petition for divorce and that by itself would show that he had not acted bona fide

throughout. He made no efforts to bring the wife to his matrimonial home to resume matrimonial obligations and by the very nature restitution of

conjugal rights being a bilateral act, the wife alone could not resume cohabitation unless the husband wanted it By not letting the wife satisfy the

decree, it was not open to the husband to seek divorce on the ground that the decree had remained unsatisfied. He cannot be permitted to take

advantage of his own wrong. The grievance of Mr. Bhagotra that the onus of issue No. 3 had been wrongly placed has also no substance, not only

for the reason that the question of onus of issue No. 3 was earlier debated before this Court in revision by the parties and this Court had placed the

onus of the issue, after modifying the issue, on the husband but also for ""the reason that from a plain reading of Section 23 it becomes obvious that

it is for the party, seeking relief to establish that he is not taking advantage of his own wrong, while seeking relief. That apart, it is too late now,

after the parties had gone to trial after understanding each other's case, to urge that the onus of the issue had been wrongly placed. After the parties

have gone to trial and led evidence on the issues after understanding each other's case, the question of onus pales into insignificance. After carefully

going through the record I do not find any misappreciation of evidence by the trial Court or any wrong application of law. AH the submissions

raised by learned counsel for the appellant therefore fail and are rejected.

Before parting with the judgment, I would, however, like to observe that the learned counsel for the appellant with a view to show that Section

23(1-A) did not stand in his way, relied upon N. Varalakshmi Vs. N.V. Hanumantha Rao, and Dharmendra Kumar Vs. Usha Kumar, . None of

these judgments, however, has much relevance to the facts and circumstances of this case. So far as N. Varalakshmi Vs. N.V. Hanumantha Rao,

and AIR 1965 J&K. 111 are concerned those judgments dealt with cases relating to judicial separation and, as observed elsewhere in this

judgment, the consideration which weigh with the Court while considering the applicability of Section 23(1-A) in cases falling under Clause (1) and

(2) of Section 13(1-A) are separate and distinct. As regards Gulab Kaur Vs. Gurdev Singh Rattan Singh, the proposition therein is not only

broadly stated but the effect of Section 23(1-A) has not been noticed in that judgment and therefore the same cannot come to the aid of the

appellant. A reference to para 3 of Dharmendra Kumar Vs. Usha Kumar, itself would show that this judgment also has no relevance to the facts

and circumstances of the present case. The ratio of none of these cases squarely covers the proposition that had arisen for determination in the

present case and it is for this reason that I have not discussed them elsewhere in the judgment, for, the appeal has been dealt with on the basis of

the facts and circumstances established on the record.

Keeping in view the aforesaid discussion, in my opinion, the learned District Judge was right in dismissing the petition for divorce filed by the

appellant. His findings on all the issues are unexceptionable. I confirm his findings on all the three issues and hold that the husband appellant was

not entitled to the relief of divorce, since he was taking advantage of his own wrong in seeking that relief. This appeal, therefore, fails and is

dismissed as such. Parties shall bear their own costs.