Sanjeev Khugshal vs Parul @ Parinita

Ravindra Maithani, J

The instant appeal is preferred against the judgment and order dated 03.10.2012 passed in Petition No. 69 of 2010, Sanjeev Khugshal Vs. Smt. Parul by the court of Principal Judge, Family Court, Dehradun (hereinafter referred to as ‘the

case’),

By the impugned judgment and order, the petition filed under Section 13 of the Hindu Marriage Act, 1955 (for short ‘the Act’) has been dismissed.

Appellant filed an application under Section 13(1-A) of the Act seeking dissolution of marriage dated 13.04.2001. According to the petition, parties were married on 13.04.2001. Out of the wedlock, daughter Mansi was born on 25.04.2002.

The matrimonial relationship between them was not cordial. The appellant moved a petition under Section 13 of the Act for dissolution of the marriage earlier. It was registered as Original Suit No. 382 of 2008, Sajeev Khugshal Vs. Smt. Parul,

in the court of Family Judge, Family Court, Dehradun (for short ‘the former divorce suit’) The former divorce suit was decided on 27.01.2009 and the court passed a decree of judicial separation. Daughter of the parties is in the custody

of the respondent. The appellant is paying regularly the amount of maintenance to the respondent. According to the petition, since the decree of judicial separation was passed on 27.01.2009, the parties are residing separately. There has been

no relationship between them. Therefore, the marriage may be dissolved. Subsequent to filing of the petition, the appellant also added paragraph 9a, 9b and 9c in the petition, averring the criminal cases pending between the parties and other

litigations.

Respondent filed written statement. With regard to the relationship between the parties, in paragraph 29, the respondent pleaded that the appellant has been visiting to her regularly. Their physical relationship are established and continued.

The written statement is quite detailed. Learned court below framed four issues in the case, which are as hereunder:-

Whether after decree in Original Suit No. 382/2008 dated 27.01.2009, no sexual intercourse took place between the parties and no relationship as husband and wife continued?

Whether the respondent committed cruelty to the appellant?

Whether the appellant is entitled to the reliefs claimed?

Whether respondent is entitled to get the one time permanent alimony for her and for her daughter from the appellant? If yes, what should be the amount?

The Court recorded findings on these issues. On issue no.1, the court held that there has been no physical relationship between the parties since 2008 when the decree of judicial separation was passed in the former divorce suit, but the court

held that the relationship of husband and wife continued between the parties. The Court also held that the appellant did not make any effort for resuming the cohabitation, therefore, he cannot take advantage of his own wrong. On issue no.2,

the court held that it has not been proved that the respondent committed cruelty to the appellant. On issue no.4, the court held that since the amount of maintenance is being ascertained under section 125 of the Code of Criminal Procedure,

1973 (hereinafter referred to as ‘the Code’), fixing permanent alimony would not be proper.

Accordingly, the petition under section 13 of the Act has been dismissed. Aggrieved by it, the appellant filed the instant appeal.

Heard learned counsel for the parties and perused the record.

Only one issue has been raised in this appeal i.e. applicability of provision of Section 13(1-A) of the Act on the ground that after decree of judicial separation, there has been no resumption of cohabitation between the parties for a period of

one year. It would be apt to reproduce the provision of Section 13(1-A) of the Act, which reads as hereunder:-

“13.Divorce- (1)……………………………………………………………………….

(1-A) Either party to a marriage, whether 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 upward after the passing of a decree of restitution of conjugal rights in a proceeding to which they were parties.â€​

There is no dispute between the parties that they were married on 13.04.2001 and a daughter Km. Mansi was born out of the wedlock, who is staying with the respondent. It is also admitted that the respondent has been directed to pay

maintenance to the respondent and for the daughter in a proceedings under Section 125 of the Code. It is also admitted that the former divorce suit was filed by the appellant, which was decided on 27.01.2009. A copy of the judgment is on the

record which reveals that parties compromised in the former divorce suit. They settled that in order to avoid unnecessary dispute, they would stay separately and would not level any imputation on each other. The appellant would visit his

daughter Mansi. Based on this compromise, decree of judicial separation was passed on 27.01.2009 in the former divorce suit. This decree has attained finality.

Learned counsel for the appellant would argue that after the decree of judicial separation passed in the former divorce suit, there has been no resumption of cohabitation between the parties for a period of one year or more. Therefore,

under Section 13(1-A) of the Act, a decree of divorce has to be granted.

In support of his contention, learned counsel placed reliance on the principles of law as laid down in the case of Jethabhai Ratanshi Lodaya Vs. Manabai Jethabhai Lodaya, AIR 1975 Bom 8.8 In this case, Bombay High Court, inter alia,

held that the husband is under no obligation to cohabit with the wife after judicial separation and therefore desertion on his part did not continue and it does not attract the provision of Section 23 of the Act.

Learned counsel for the appellant would further argue that the appellant has been paying the maintenance due to the respondent and to his daughter. After decree of judicial separation, it is no longer obligatory for the appellant to cohabit

with the respondent and if he didn’t do so, he cannot be said to have committed a wrong for attracting the provision of Section 23 of the Act.

On the other hand, learned counsel for the respondent would argue that the decree of judicial separation does not severe the relationship between the parties. It only suspends the relationship and it is always obligatory for either of the

parties to make efforts to cohabit so as to save the marriage.

Learned counsel for the respondent has made two-fold arguments. They are:-

(i) the appellant has been visiting the respondent and respondent has stated about it. Her statement has been supported by the statement of her daughter and

(ii) the appellant did not make any attempt to unite. He did not approach the appellant so that both may live together.

It is argued that it was obligatory for the appellant to make efforts so that both the parties could have stayed together and failing which it would be a wrong under Section 23 of the Act, which would disentitle the appellant for grant of decree of

divorce. In support of his contention, learned counsel has placed reliance on the principles of law as laid down in the cases of Ram Kali Vs. Gopal Dass, ILR (1971) 1 Delh, iDharmendra Kumar Vs. Usha Kumar, (1977) 4 SCC 12 and

Hirachand Srinivas Managaonkar Vs. Sunanda, (2001) 4 SCC 125.

In the case of Ram Kali (supra), Full Bench of Delhi High Court discussed amendments made in the Act when Section 13(1-A) was introduced. The Court held that “the petitioner in such a petition would be entitled to get the relief of

dissolution of marriage by a decree of divorce if he or she can show that there has been no resumption of cohabitation or no restitution of conjugal rights as between the parties to the marriage for a period of two years or upwards after the

passing of the decree for judicial separation or for restitution of conjugal rights. The result of the amendment is that for the purpose of applying for a decree of divorce under sub-section (1A) a spouse against whom an earlier decree for

judicial separation or for restitution of conjugal rights had been awarded shall stand on the same footing as the spouse in whose favour such a decree had been granted.†It was further held that “the underlying object of the legislature in

inserting sub-section (1A) in Section 13 seems to be that if there has been no resumption of cohabitation or no restitution of conjugal rights as between the parties to the marriage for a period of two years or upwards, after the passing of a

decree for judicial separation or for restitution of conjugal rights, the Court should assume that the relations between the parties have reached a stage where there is no possibility of reconciliation and as such it might grant the decree of

divorce.â€​

In the case of Dharmendra Kumar (supra), principles of law as laid down in the case of Gajna Devi Vs. Purshotam Giri, ILR (1976) 1 Delhi 725 have been followed and the court held as hereunder:-

“In our opinion that law has been stated correctly in Ram Kali Vs. Gopal Dass (supra) and Gajna Devi V. Purshotam Giri (supra). Therefore, it would not be very reasonable to think that the relief which is available to the spouse, against

whom a decree for restitution has been passed, should be denied to the one who does not insist on compliance with the decree passed in his or her favour. 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.â€​

In the case of Hirachand Srinivas Managaonkar (supra), Hon’ble Supreme Court further discussed the effect of decree of judicial separation and held as hereunder:-

“15. 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 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.â€​

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                                               (emphasis supplied)

In the divorce petition, the appellant examined himself as PW1. On behalf of respondents, respondent Parul and her daughter Mansi were examined. Though two more witnesses filed their evidence but they did not appear for cross

examination, therefore, their affidavits cannot be read into evidence.

In his evidence, the appellant has reiterated the version of his petition and in paragraph 13 of his affidavit, in examination-in-chief, the appellant has deposed that after decree of judicial separation, there has been no relationship or sexual

intercourse between the parties. It is also deposed that after decree of judicial separation, the parties did not stay together and in paragraph 14 and 15 of his affidavit, these averments have been reiterated and it is deposed that divorce may be

granted now.

In cross-examination at paragraph 21, appellant has stated that he has no emotional attachment with his wife. He has stated reasons for it.

In her affidavit, which is filed in examination-in-chief, the respondent in paragraph 17 has deposed that the appellant is frequent visitor to her. Their physical relationship continued and the people from the locality are witness to it. The

daughter of the parties, Km. Mansi has also been examined. She has stated that after the former divorce suit, appellant has been visiting to her house and staying with her mother. In her cross-examination, she categorically stated that she is

though not happy with her father, but she still wishes that divorce should not be granted.

There are oral evidences. On the one hand, according to the appellant, after decree of judicial separation, parties had no relations; on the other hand, according to the respondent and her daughter Km Mansi, the appellant has been visiting

to her frequently and their physical relations continued.

On behalf of the respondents, it is argued that cohabitation does not necessarily mean sexual relations. Mere visiting and continuing relationship amounts to cohabitation. Reference has been made to the judgment in the case of Hirachand

Srinivas Managaonkar (supra). Para 12 of it has been referred to, which is as hereunder:-

“12. 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 “wrongâ€​. In Mulla’s Hindu Law (17th Edition at p. 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.â€​

Continue with the relationship as husband and wife is one thing and physical relationship is another, though part of it. First of all, it has to be seen as to whether parties cohabit after 23.01.2009, when the decree of judicial separation was

passed in the former suit. In view of the acrimony between the parties and in the absence of any other material, merely on the basis of the oral statements of the respondent and the daughter Mansi, it may not be safe to conclude that the

appellant has been visiting the respondent after the decree of judicial separation. It is not proved that there has been resumption of cohabitation between the parties after the decree of judicial separation passed in the former suit. Now, its

effect has to be seen.

Appellant is categorical that he never visited the respondent. He never tried to make any attempt for resuming the cohabitation and what is being argued on behalf of the appellant is that the appellant is not under obligation to resume

cohabitation after the decree of judicial separation passed in the former suit. Reference has been made to Section 10 (2) of the Act, which reads as hereunder:-

“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 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

statement made in such petition, rescind the decree if it considers it just and reasonable to do so.â€​

In the case of Krishna Bhattacharjee Vs. Sarathi Choudhury and Another, (2006) 2 SCC 705, Hon’ble Supreme Court further referred to the principles as laid down in the case of Hirachand Srinivas Managaonkar s(upra). Specifically

paragraph 16 (as quoted hereinbefore) has been quoted in the case of Krishna Bhattacharjee (supra).

In the case of Ram Kali (supra), Full Bench of Delhi High Court held that if after a decree of judicial separation, there has been no resumption of cohabitation for a requisite period, court should assume that the relationship between the

parties has reached to the state, where there is no possibility of reconciliation, but in the case of Hirachand Srinivas Managonkar (supra), the court discussed the provision of Sections 10 and 23 of the Act. Section 10 of the Act has already

been quoted hereinabove. Section 23 (1) (a) of the Act is as hereunder:-

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

(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, and

 ………………………………………………………………………………………………….â€​

This section 23 of the Act disentitles the petitioner to the relief, in case, it emanates from a wrong committed by him. The only question is as to whether after decree of judicial separation, the appellant shall be under obligation to make

efforts for resumption of cohabitation. In the case of Hirachand Srinivas Managaonkar (supra), the court held that “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.â€​

In the case of Krishna Bhattacharjee (supra), Hon’ble Supreme Court, inter alia, held that the decree of judicial separation does not severe or dissolve the marriage. It offers an opportunity for reconciliation and adjustment.

In view of the law as laid down in the case of Hirachand Srinivas Managaonkar (supra), even after decree of judicial separation, parties to marriage should make attempt for cohabitation.

In the instant case, it has not been done. The appellant did not make any attempt to cohabit. It would be a wrong under Section 23 of the Act and appellant cannot take advantage of it. Therefore, this Court is of the view that since after

decree of judicial separation, passed in the former divorce suit, the appellant did not make any efforts for resuming cohabitation, it amounts to a wrong under Section 23 of the Act. It is a valid ground for refusal of grant of decree of divorce

and the learned court below did not commit any error in rejecting the petition under Section 13(1-A) of the Act. Accordingly, the appeal deserves to be dismissed.

The appeal is dismissed.