Sant Singh vs Mst. Makhan Kaur

S.M. Fazl, Ali, J.—This is an appeal by Sant Singh against a decree for divorce granted against him by the Sub-Judge. Mst. Makhan Kaur

Respondent had filed a petition for dissolution of marriage and a decree for divorce u/s 13 of the Jammu and Kashmir Hindu Marriage Act 1955.

The applicant in the Court below had alleged that she was maltreated by the non-applicant and was driven out of the house and thereafter the

non-applicant married a second wife with whom he was living.

The application was resisted by the non-applicant on the ground that the applicant was not maltreated by him and that as he had no issue by the

applicant it was at her instance and with her consent that the non-applicant had taken a second wife.

The Court below on a consideration of the evidence led by both the parties has come to the conclusion that the non-applicant had married a

second wife and that he had maltreated the applicant. The learned Judge has also found that the consent, if any, was obtained by the non-applicant

under coercion. The learned Judge was also of the opinion that even if the applicant had consented to the second marriage which took place prior

to the commencement of the Act, such a consent was given in ignorance of her rights under the Act and was, therefore, not binding on her.

Mr. R.N. Bhalgotra, learned Counsel for the Appellant has contended that there is abundant evidence in this case to show that the non-applicant

had taken a second wife with the consent of the applicant and this being so, she was not entitled to a decree for divorce, in view of the provisions

of Section 23 of the Act. It was not necessary for us to go into this question because there is a clear finding of the Court below that the consent

given by the applicant was not a free consent. But as the contention has been raised I think it necessary to deal with it.

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

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

....

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

The contention is that since the applicant by giving consent to the marriage had aided her husband in marrying again she could not be allowed to

take advantage of her own wrong and, therefore, the Court should have taken this factor into consideration in granting a decree for divorce. The

section itself does not use the word 'consent' but the words used arc ""taking advantage of his or her own wrong"". In order to apply the section it

must be shown by the non-applicant that the wife had committed some wrong.

It is admitted on all hands that the second marriage had taken place prior to the commencement of this Act. It is also clear that before the

commencement of this Act a second marriage was permissible. It was only after the passing of this Act that second marriage was prohibited and

the second marriage was made an offence punishable under the provisions of Sections 494 and 495 of the I.P.C. In the circumstances even if the

non-applicant had consented to the second marriage by the non-applicant it could not be said that she had committed any wrong. Moreover, she

could not be conscious of her rights under the Act and the disability created by Section 23 because the Act was not in force at that time. We have,

therefore, to consider the circumstances as also the time when the consent was given. Having regard to these circumstances it cannot be said that

Section 23(1)(a) can be called into aid in order to refuse a decree for divorce. Consent or connivance must be express and must amount to

culpable acquiescence so as to indicate an act of mind which implies knowledge and acquiescence both. The doctrine embodied in Section 23,

Clause (1) is based on the equitable maxim ""volenti nonfit injuria"". Mere negligence, inattention or an error of judgment on the part of one spouse

will not be sufficient to amount to acquiescence or consent.

The statute by using the word ""wrong' has gone one step further and envisages a state of mind under which a party has acted in such a manner so

as to operate as an estoppel. Where therefore a party makes an admission in ignorance of his right, such a conduct cannot be said to amount to

estoppel so as to attract the operation of Section 23(1)(a) of the Act.

Instances of 'wrong' contemplated by Section 23 may be found in cases where the wife seeks divorce on the ground that the husband is

suffering from a virulent or incurable disease and it is established that the said disease was really contracted from the applicant.

In other words there must be some specific definite act to indicate that a person knew full well the consequences of his act and chose to

acquiesce in that, and it is only when he does so, that he cannot be allowed to take advantage of his wrong.

The question, therefore, as to whether a person can be allowed to take advantage of his wrong must largely depend upon the circumstances and

facts of each case.

As I have already pointed out above in the circumstances and facts of this particular case it cannot be said that the applicant had given a free

consent so as to amount to a wrong within the meaning of Section 23(1)(a). The contention of the learned advocate appearing For the Appellant

must, therefore, be overruled.

Apart from these facts the learned Subordinate Judge has pointed out that the wife has stated in her evidence that the non-applicant had

married against her wishes and whenever she would try to dissuade him he would beat her. This would clearly show that the consent, if any, was

not a free consent so as to operate as an estoppel against the applicant.

The Court below has discussed the evidence given by the parties on the question whether the consent was really given by the applicant and on.

a consideration of the evidence has found that the non-applicant has failed to prove that the second marriage contracted by him was with the

consent of the applicant. We have gone through the evidence and we see no reason to differ from the opinion given by the learned Subordinate

Judge who had the advantage of watching the demeanour of the witnesses particularly of the wife and the husband. It may be noted that before

Section 23 would apply the Court must be satisfied that the applicant has committed a wrong. In this connection the clear finding of the Court

below is as follows:

Even on facts it is not proved to my satisfaction that the applicant has given her consent to the non-applicant for second marriage.

In view of this clear finding we cannot agree with the contention of the counsel for the Appellant that Section 23(1)(a) applies and hence a decree

for divorce should not have been granted.

For the reasons given above we think that there is no merit in this appeal which must be dismissed.

The appeal accordingly fails and is dismissed but there will be no order as to costs.

J.N. Wazir, C.J.

In view of the clear finding based on cogent evidence that the applicant did not give her consent to the husband for second marriage, decree

for divorce has been rightly granted to the applicant and this appeal is dismissed without any order as to costs.