Mehar Chand vs Smt. Gitan

D.B. Lal, J.—This appeal is brought from the judgment of the District Judge, Dharamsala, in a petition u/s 13 of the Hindu Marriage Act, 1955, dismissing the petition ofthe husband for a divorce u/s 13(1-A)(ii) presumably on the ground that u/s 23 of that Act the husband would be unable to take advantaged his own wrong or disability. The facts giving rise to the petition were, that in the year 1971 Mehar Chand, the present Appellant, filed a petition against his wife Smt. Gitan u/s 9 of the Act, praying for a decree for restitution of conjugal rights. At that stage the parties entered into a compromise under which the wife agreed to come and live with the husband and the latter also agreed to take her back and live with her. In terms of that compromise, a decree for restitution of conjugal rights was passed on 17th January, 1972. Since there was no restitution of conjugal rights for more than two years (which period is now cat short and is put as one year), a petition u/s 13(1-A)(ii) of the Act was filed seeking divorce on that ground. The contention of the Respondent was that she did go to the house of the husband after the said decree was passed, but the aunt of the husband did not allow her to enter the house and rather turned her out, and thus she was prevented from complying with the decree. It was further asserted that the husband used to remain out on duty and was not prepared to take her with him. It was also averred that the father of the Respondent made several attempts that both the husband and wife lived together, but he failed in his efforts.

The learned District Judge framed essentially two issues of which issue No. (1) related to the non-compliance with the decree of restitution of conjugal rights while issue No. (2) contained the plea as to whether there were sufficient grounds for the Respondent not to comply with the aforesaid decree so that it could be stated as to whether or not the Petitioner was taking advantage of his own wrong or disability so as to deprive him of a decree of divorce. The learned District Judge discussed the entire evidence under these two issues, and under issue No. (1) his finding was that the wife never went to the husband and as such there was no occasion for him to have turned her out from his house or his aunt having misbehaved with her. Similarly the evidence on behalf of the wife was disbelieved to the effect that the husband was not prepared to take her along with him or that any effort was made on her part to live with the husband. Nevertheless the learned District Judge under issue No. (2) gave the finding that the husband never made an effort to go to the residence of the wife to call her back, nor did he serve her with a notice to come and comply with the decree, and that the said omission by itself would prove a wrong or disability on his part. With that finding, the learned District Judge dismissed the petition for divorce. The husband has felt aggrieved of that decision and has preferred the present appeal.

Shri O.P. Sharma, the learned Counsel for the Appellant, contended that the Respondent being judgment debtor there was an obligation on her part to perform the decree. If conditions leading to the failure of the performance of the decree were created against her and there was obstruction as alleged on the part of the husband, she could even get the satisfaction of the decree certified before a court of law. For that proposition, Shri Sharma relied on the observations made in Mst. Kamlesh Kumari v. Kartar Chand Diwan Singh AIR 1962 Pun 156 Gulab Kaur v. Gurdev Singh Rattan Singh A.LR. 1963 Pun 493and M.P. Shreevastava v. Mrs. Veena AIR 1965 Pun 54. Thereafter Shri Sharma, contended that if once a finding was given that the wife had not performed her obligation under the decree, the mere omission on the part of the husband not to have asked the wife to, perform her obligation will not be a ground to refuse him a decree for divorce within the meaning of Section 23 of the Act. In Mst. Kamlesh Kumari (supra), the husband obtained a decree for restitution! It was held that his failure to execute decree did not amount to "non-compliance" and the wife could not seek dissolution on the ground of such failure. The learned Judge also observed that there was no warrant for the proposition that any corresponding obligation was made on the person who obtained the decree for restitution of conjugal rights to take steps to execute it or make efforts to persuade the judgment-debtor to comply with the decree. The husband being a decree-holder, it is for the wife who is the judgment-debtor to comply with the decree and the husband cannot be compelled nor indeed has he any obligation to seek execution against the wife. Similarly in Gulab Kaur (supra) it was held that where the husband obtains a decree for restitution of conjugal rights, the compliance with the decree has to be made by the judgment debtor wife irrespective of whether the decree-holder seeks its compliance by execution or otherwise. The emphasis was made that the decree-holder has not to take any steps to get the decree executed. In the third case, M.P. Shreevastava (supra), relied upon by Shri Sharma, it was stressed that if the'' husband creates a situation whereby the decree cannot be performed, the wife can go to court and get a satisfaction of the decree certified lest the other consequence of divorce may be followed at the request of the husband. It is pointed out by the learned Counsel that in the instant case the learned District Judge denied the decree for a divorce under a wrong assumption that it was obligatory on the part of the husband to have asked the wife to perform her obligation under the decree for restitution of conjugal rights. According to the learned Counsel, this reasoning was faulty and Section 23, in fact could not be interpreted in the circumstances made out against the Appellant.

It was also contended by Shri Sharma, the learned Counsel, that a bare reading of Section 23 would disclose that in order to deprive the Appellant of the legal consequence ensuing from non-compliance with the decree for restitution of conjugal rights, a wrong or disability on the part of the husband was required to be established. The very language used in Section 23(1-A) points out to his own wrong or disability for the purpose of such relief, namely the relief of divorce, which he claimed for non-compliance with the decree for restitution of conjugal rights. In other words, some obligation is placed upon the husband, and non-performance of that obligation should amount to a wrong or disability committed by him. The argument then proceeded that in the instant case no positive obligation was placed upon the husband on the basis of the aforesaid decisions, and that being the position, no act on the, part of the husband was proved so as to infer a wrong or disability on his part. The conclusion derived by the learned District Judge was wrong, when he stated, that the husband had not taken any steps to ask the wife to perform her obligation under the decree and, therefore, by that omission alone he would infer a wrong or disability on the part of the husband. In that connection, Shri Shaima further pointed out that the finding ofthe learned District Judge on issue No. (2) was really contradictory to his own finding under issue No. (1). Shri Ramesh Chand, the learned Counsel for the Respondent, in that respect contended that this being a first appeal against an order, he could challange the finding of the learned District Judge under issue No. (1) which was obviously against the wife. Apart from the controversy that the wife has not filed any cross objection in this appeal, it was conceded that this Court may reappraise the evidence and give its own finding under issue No. (1), and the learned Counsel for the Appellant was rather emphatic that the finding arrived at by the learned District Judge under issue No. (1) could only be in favour of the Appellant. In fact the burden of proof was placed upon the Appellant under issue No. (1) and the learned District Judge considered the evidence of the Appellant in the first instance. He considered the statement of Smt. Bhuri, the aim of the Appellant, and one Jalu Ram a member of the Panchayat. He also considered the statement of the Appellant himself. The observation was that the Appellant''s evidence left no manner of doubt that the Respondent did not go to the Appellant''s house after the decree. Thereafter the learned District Judge considered the entire evidence on behalf of the Respondent. His categorical finding has been to the following effect:

"on consideration of the evidence as discussed above, I am of, the opinion that the Respondent never went to the Petitioner''s house after the decree for restitution of conjugal rights was passed against her and thus has failed to comply with the decree.

It is, therefore, abundantly clear that the contention of the wife that she went to live at her husband''s place after the decree was passed was not believed to be true. It was never accepted that she showed any inclination to live with the husband. It was also considered incorrect that the aunt of the Appellant ill-treated the wife, or that the husband turned her out from his, house. It was also disbelieved that any effort was made by the father of the Respondent so that the wife could go and stay with the husband. After carefully considering the statements of these witnesses, I find no reason to take a different view than what has been taken by the learned District Judge. It is, therefore, manifest that the wife never made any effort of any description to comply with the decree for restitution of conjugal rights. It would not be correct to say that the husband rather created a situation so that the wife was unable to perform her part of the decree. We are, therefore, left with the mere fact that the husband did not go himself to the residence of the wife and did not propose her to go with him and that he never sent a notice to the wife to come and live with him. Merely on this omission on the part of the husband, I do not consider that any overt act is proved or inferred against the husband so that he committed a wrong or was guilty of a disability and therefore he could be denied a decree for a divorce. This is amply borne out from the decisions noted above. The learned District Judge seams to have inferred entirely against the Appellant because of this omission on his part rather not to have asked the wife to comply with the decree. The other positive aspect, that the wife went to live with the husband and that she was turned out from the house at the instance of the husband or his aunt was disproved and held to be incorrect. The mistake that lies with the learned District Judge was that he considered almost without evidence that the husband ill-treated the wife, or that the aunt of the husband did not welcome her in the house, or, that he did not create a situation favourable to the wife to go and live with him. That part ofthe finding under issue No. (2) was clearly without any evidence, and hence it must be ignored;

Shri Ramesh Chand, the learned Counsel for the Respondent, referred to Smt. Kailash Kumari v. Manmohan Kapoor AIR 1975 J & K 95. In that case, their lordships were considering Section 23 and the burden of proof that lay under that section was placed upon the Petitioner who seeks for divorce. It was held that the Petitioner who seeks the relief for divorce has to prove want of wrong or disability and as such their Lordships having found that a wrong burden of proof was placed, modified the issue and remitted the case for retrial. There can be no quarrel with this proposition and verily it has to be stated that a sort of negative burden of proof decidedly lay upon the Appellant and it was for him to show before the court that he was not guilty of any wrong or disability so as to deprive him of a decree of divorce. To my mind, this burden was amply discharged by the Appellant. Merely because he did not ask the wife by giving a notice or otherwise to comply with the decree for restitution ofthe conjugal rights would not go to establish a wrong or disability on his part so as to deprive him of the consequence of the decree. Therefore, the finding of the learned District Judge, in my opinion, could not be sustained and it could not be held that the Appellant was taking advantage of his own wrong or disability. In fact, the wife had not performed her obligation under the decree. The facts alleged by her, blaming the husband so that she could not perform the decree were belied by evidence. It was a clear case where there was no restitution of conjugal rights as between the parties for a period of more than two years and that was a valid ground for a divorce. Section 23 did not stand in the way of the Appellant and he should have granted a decree for divorce.

The appeal is, therefore, allowed and the judgment of the learned District Judge is set aside. Instead the petition u/s 13(1-A)(ii) is granted and a decree for divorce is made in favour of the Appellant.

In the special circumstances of the case, however, no order is made as to costs.