Smt. Gurmail Kaur vs S. Ujjagar Singh

B.R. Tuli, J.—Smt. Gurmail Kaur filed a petition u/s 13 of the Hindu Marriage Act (hereinafter called the Act) for the grant of a decree of divorce against her husband Ujjagar Singh. The marriage between the parties took place at Kheri (Ghogha) in April, 1957. They lived together as husband and wife at village Pannuan for two months whereafter they separated. Ujjagar Singh respondent filed a petition u/s 9 of the Act for restitution of conjugal rights against the appellant which was decreed on January 30, 1962. The appellant filed an appeal against that decree in this Court which was dismissed on April 8, 1963. In para 4 of the petition, the ground for the decree of divorce is stated as under:

The respondent filed a petition u/s 9 of the Act and got a decree on 30th January, 1962, from this Hon''ble Court and the petitioner preferred an appeal in High Court of Punjab, Chandigarh; but the same was refected on 8th April, 1963 Since then decree u/s 9 of the Act has remained unsatisfied uptil now and the petitioner is residing at village Kheri (Ghoga) at the house of her father for about 8 years and never went to the house of respondent even after decree and nor any execution of the decree was taken out by the respondent. Petitioner does not want to go to the house of respondent as there is every apprehension of danger to life in the mind of the petitioner, as respondent has been cruel towards the petitioner during her stay with the respondent and the petitioner has not condoned the cruelty in any way.

From the allegations made in this para it is evident that the case of the appellant was that after the decree for restitution of conjugal rights, she did not go to the respondent at all. Later, an application was made in the trial Court for permission to amend the petition so as to allege that the appellant tried thrice to live with the respondent but the latter spurned her. The learned trial Court did not permit the amendment on the ground that the allegation sought to be substituted by amendment was contrary to the allegations made in the original petition and, I think, the learned trial Court acted rightly in disallowing the amendment. It was within the knowledge of the appellant whether she had gone to her husband after the decree for restitution of conjugal rights was passed. Her case in the petition was clearly that she never went to her husband after that decree and that decree remained unsatisfied till the filing of the petitioner u/s 13 of the Act. She cannot now be allowed to say that she tried to persuade her husband to accept her as his wife but he refused. The second allegation in the petition for divorce is that the respondent treated her with cruelty which led her to believe that there was apprehension to her life and she could not live with the respondent. It may be noted that in the previous case relating to the restitution of conjugal rights, the appellant had set up the same story which was disbelieved by the learned trial Court as well as this Court in appeal, It was found in that case that the appellant had stayed just for a night at the house of the respondent immediately after the wedding and thereafter left the respondent without any reasonable execuse. On that ground, the decree for restitution of conjugal rights was passed in favour of the respondent. Moreover, the learned counsel for the appellant gave up the plea of cruelty by his statement made on the 21st September, 1965.

The learned trial Court dismissed the petition u/s 13 of the Act on the ground that the appellant could not be allowed to take advantage of her own default as it was upto her to comply with the decree for restitution of conjugal rights which she failed to do. The plea that the respondent did not take out execution of the decree and, therefore, was equally at fault, did not prevail with the trial Court. Against the decree passed by the learned trial Court, the appellant has filed the present appeal.

It has been vehemently contended before me that the learned trial Court did not permit the appellant to prove all her allegations made in the petition but this submission has no force in view of the fact that she relied on the decree for restitution of conjugal rights and its non-satisfaction. This fact, which is an admitted one, has been considered by the learned trial Court. The second ground was of cruelty which was given up by her counsel Moreover, the plea, of cruelty related to the period prior to the application u/s 9 of the Act and since she had not gone to her husband, the respondent, after the decree was passed in the restitution case, it cannot be said that the respondent was guilty of any cruelty after that decree. I, therefore, find that all the pleas raised by the appellant were considered by the learned trial Court and the appellant''s grievance is not well-founded.

The second submission made by the learned counsel for the appellant is that the learned trial Court illegally disallowed the amendment of the petition sought by the appellant. Again I find myself unable to accept this submission. The plea sought to be raised by amendment was directly contrary to the plea taken in the petition as stated above, and in my opinion, the learned trial Court rightly disallowed the request for amendment.

The last argument submitted by the learned Counsel for the appellant is that according to section 13 (1A) (ii) of the Act, she was entitled to a decree of divorce. This sub-section was added by the Hindu Marriage (Amendment) Act, 1964 (44 of 1964) and gave a right to either of the parties to the marriage to make an application for divorce and not only to the party in whose favour the previous decree for restitution of conjugal rights was passed. The mere fact that a decree for restitution of conjugal rights exists and has not been satisfied for a period of two years or above, does not entitle either party to sue for divorce. The conduct of the petitioner for divorce has also to be seen as provided u/s 23(1)(a) of the Act and it has been determined whether the petitioner for divorce is not, in any way, taking advantage of his or her own wrong. It was held by P.C. Pandit, J. in Chaman Lal v. Smt. Mohinder Devi (1968) 70 P.L.R. 286, (as per the head note) that-

A husband against whom a decree for restitution of conjugal rights had been obtained by his wife, is not entitled to apply for securing divorce, as he could not take advantage of his own wrong. In view of the provisions of section 13 (1A) of the Hindu Marriage Act a husband can present a petition for the dissolution of the marriage by a decree of divorce on the ground that there had been no restitution of conjugal rights between the parties for a period of two years or upwards after the decree for restitution of conjugal rights had been passed in favour of the wife against him. But u/s 23(1)(a) of the Act the Court, before granting the relief to the husband, has to be satisfied that he was not in any way taking advantage of his own wrong for the purpose of getting such relief. It was the duty of the husband to make efforts to comply with the decree for restitution of conjugal rights passed against him. He could not avoid the restitution of conjugal rights for two years after the decree and then make a petition for divorce on that ground, thus taking advantage of his own wrong. It was for him to show that he made efforts to comply with the said decree and inspite of his attempts in that behalf, there had been no restitution of conjugal rights between the parties. It would be then that it could be said that he was not taking advantage of his own wrong.

To the similar effect is the judgment of P.D. Sharma, J. in Kishni Bai v. Dr. Bhola Nath (1967) 69 P.L.R 59, on the basis of these two judgments I have no hesitation in holding that the appellant is not entitled to maintain the petition for divorce as she did not comply with the decree for restitution of conjugal rights passed against her. She is, therefore, in the wrong and cannot take advantage of her own wrong. The learned counsel for the appellant has brought to my notice a Single Bench judgment of Delhi High Court in Smt. Ram Kali v. Gopal Dass (1968) 70 P.L.R. D. 327. The learned Jugde has held as under:

The decision of the question, whether a spouse, who has failed to comply with the decree of restitution of conjugal rights, and then applies for dissolution of marriage by a decree of divorce, on the ground that there has been no restitution of conjugal rights for two years or upwards, is disentitled to the relief asked for, tinder section 23(1)(a)of the Act, will depend on the facts and circumstances of each case. But the failure to perform the decree of restitution of conjugal rights, per se, without more, will not disentitle the spouse to the relief. To hold otherwise will, in most cases, defeat the purpose of the amendment, made in section 13 by the Hindu Marriage (Amendment) Act, 1964, (44 of 1964) whereby s. 13 (1A) was introduced. Before the amendment, the relief to obtain divorce, on the ground that there had been no cohabitation for a period of two years or upwards, after the passing of the decree for restitution of conjugal rights, was available only to the spouse who had obtained the decree and not to the defaulting spouse. After the amendment the relief is available to either party to the marriage and the spouse against whom the decree for restitution of conjugal rights had been passed but who had failed to comply with the decree, can also apply for the dissolution of marriage by a decree of divorce, u/s 13 (1A)(ii) of the Act, on the ground that there has been no restitution of conjugal rights, between the parties, for a period of two years or upwards after the passing of the decree for restitution of conjugal rights.

This judgment does not go contrary to the judgments of this Court referred to above. All that it says is that the facts of each case have to be seen to find out whether the decree of divorce should be granted or not and mere failure to comply with the decree for restitution of conjugal rights will not disentitled the party in default from obtaining the decree for divorce. On the facts of that case it was held that apart from the decree which had remained unsatisfied, the parties were at logger heads and were involved in litigation which made it impossible for them to live together. In the instant case, no such facts existed. The facts found in the case of restitution of conjugal rights were that the appellant after marriage with the respondent had stayed only for one night in the house of her husband whereafter she left him without any reasonable excuse. The appellant has, therefore, never tried to live with the respondent and has concocted stories of cruelty and maltreatment which were not believed by the learned trial Court or this Court in the previous case. Agreeing with the learned trial Court, I hold that the appellant is not entitled to sue for the decree of divorce because she is the party in default and cannot be allowed to take advantage of her own wrong. The plea that the respondent also is at default because he never sued out the execution of the decree which shows that he was not willing to accept her back as his wife, is without any substance. It was held by D.K. Mahajan, J. in Gulab Kaur v. Gurdev Singh Rattan Singh AIR 1963 Punj. 493 = 65 PL R 598, (as per the head note) that-

Where a decree for restitution of conjugal rights has not been complied with by the judgment debtor for a period of two years or upwards, the decree-holder would be entitled u/s 13(1) (ix), Hindu Marriage Act to a decree for divorce notwithstanding the fact that the decree holder has not taken any steps to execute the decree for restitution or has not made any oral demand for its compliance. The compliance has to be by the judgment-debtor. The decree-holder does not come in the picture at all. Therefore, the argument that the decree-holder had to execute the decree or to otherwise seek its compliance is untenable.

For the reasons given above, I find no force in this appeal which is dismissed but with no order as to costs.