Smt. K. Vinayamani vs K. Subramanyam

P.L.N. Sarma, J.—This is an appeal filed by the wife challenging the order of the II Additional judge, City Civil Court, Hyderabad dissolving the marriage between the parties by granting a decree of divorce.

The husband filed an application u/s 13(1-A)(i) of the Hindu Marriage Act, 1955 (hereinafter called as the Act) seeking dissolution of the marriage between the parties by a decree of divorce. He stated in the application that the marriage between the parties was solemnized according to the Hindu customs on 9-8-1974 and the same was consummated immediately. Later on a son was born during the wedlock on 22-7-1975 who was aged 7 years by the time of the filing of the application. The husband alleged that the wife deserted and living away from him in her parents'' house. According to him eversince 1977 she never returned to the house. The wife herself filed O.P. 25/86 on the file of the said Court seeking judicial separation on the ground of desertion by the husband. In the said proceeding the husband remained ex parte and did not contest it with a view that better sense would prevail on her and on her parents and also for facilitating reconciliation between the parties. In the said O.P. 25/86 a decree for judicial separation was passed in favour of the wife on 25-4-1986. Alleging that there was no resumption of cohabitation or reconciliation after the passing of the decree for judicial separation on 25-4-1986 the said application has been filed. The husband also referred to the fact that far from any reconciliation between the parties, the wife filed suit O.S.No. 1177 of 1986 on the file of the II Additional Judge, City Civil Court, Hyderabad against him for her maintenance and the maintenance of the minor son. The filing of the suit indicates that there was no possibility of the parties coming together and lead a marital life and, therefore, the application was filed stating that the statutorily required period has elapsed and that he is entitled to a decree for divorce.

The said application was resisted by the wife on the ground that the husband deserted her and left her at her parents'' place for delivery and never took her back. She also stated that there has been no meeting between the petitioner and the respondent and her marital relationship with the husband has broken down since 31st August, 1978. But she complained that the husband alone is responsible for the state of affairs. She also stated that she was driven out of the marital home on 31st August, 1978 and all the efforts made by her, her parents and well-wishers for reconciliation proved futile. Having regard to the above facts she was forced to file O.P. 25 of 86 seeking judicial separation which was granted ultimately by the Court. She also had to file O.S. 1177/86 on the file of the II Additional Judge, City Civil Court, Hyderabad for maintenance. She pleaded that the husband cannot take advantage of his own wrong and obtain a decree for divorce. She stated that the husband is the erring party and he cannot take advantage of his own wrong. The other allegations made in the counter are not necessary for the purpose of disposal of this appeal.

The parties adduced evidence in respect of their cases. The husband as well as the wife examined themselves as P.W.I and R.W.I respectively, and no documentary evidence was adduced in the case by either of the parties. On a consideration of the material placed before the learned Judge, the application was allowed by the learned Judge holding that after the passing of the decree for judicial separation on 25-4-1986 till the date of the filing of the application there has been no resumption of cohabitation between the parties and that the husband is not taking advantage of his own wrong. Questioning the said order the present C.M.A. has been filed by the wife.

Shri Suresh Kumar, learned Counsel appearing for the appellant raised the contention that Section 13(1-A)(i) of the Act is subject to the provisions of Section 23(1)(a) of the Act and that in this case the husband having sufferred a decree for judicial separation on the ground of desertion, is trying to take advantage of his own wrong and, therefore, the application should not have been granted. To appreciate this contention, it is necessary to refer to the two provisions which are as under:

"Section 13(1-A)(i):-"

"Section 13(1-A)(i): 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 two years or upwards after the passingof a decree for judicial separation in a proceeding to which they were parties;"

xxxx xxxx xxxx

"Section 23(1)(a): In any proceeding under this Act, whether defended or not, if the Court is satisfied that -

(a) any of the grounds for 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,

xxxx xxxx xxxx (b) xx xx

(c) xx xx

(d) xx xx

(e) xx xx

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

The argument of the learned Counsel is, that the husband had sufferred a decree for judicial separation on 25-4-1986 in O.P.No. 25 of 1986 on the ground of desertion and cruelty, that is to say, the husband was accused by the wife of being guilty of desertion and cruelty. Even though, that was an ex parie decree the fact that the decree was passed on those grounds disentitled the husband from obtaining a decree for divorce u/s 13(1-A)(i) of the Act as he is the erring party in view of the provisions of Section 23(1)(a) of the Act. In this context the learned Counsel strongly relied upon the words, occurring in Section 23(1)(a), viz.,

".......any of the grounds for 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........."

The learned Counsel contends that when once the husband was found guilty of desertion in O.P.25/86 filed by the wife, he shall not be allowed to take advantage of his own wrong. He will be taking advantage of his own desertion if the decree passed by the Court below is not set aside in the present appeal. In support of his contention, the learned Counsel relied upon the judgment of Madras High Court in Soundarammal Vs. Sundara Mahalinga, Nadar, .

To appreciate this contention, it is necessary to have certain fundamentals in mind. The Act, enables either of the party to a marriage to approach the Court for any one of the reliefs like restitution of conjugal rights, judicial separation, divorce etc. An application can be filed for judicial separation u/s 10(1) on any of the grounds mentioned therein by either party to a marriage. One such ground being desertion for a continuous period of not less than two years immediately proceding the presentation of the application. When once a decree for judicial separation was passed u/s 10(1) either party to a marriage can present a petition for dissolution of marriage by a decree of divorce on the ground that there has been no resumption of co-habitation between the parties to the marriage for a period of two years or upwards after the passing of a decree for judicial separation. Therefore, a plain reading of the section indicates that either party to the marriage, irrespective of the fact as to who is the successful party in the earlier application for judicial separation, can approach the Court u/s 13(1-A)(i) for a decree of divorce on the ground that there was no resumption of cohabitation between the parties to the marriage for a period of two years or upwards after the passing of the decree for judicial separation. The section does not say that a successful party in the earlier proceeding for judicial separation alone is entitled to file the application u/s 13(1-A)(i). This is a clear indication of the legislative intendment that even though a person suffers a decree for judicial separation, yet that party also can approach the Court u/s 13(1-A)(i) seeking a decree for divorce. It is also well settled that a decree passed for judicial separation or for restitution of conjugal rights etc., against a party cannot be treated as "wrong" or "disability" within the meaning of Section 23(1)(a) of the Act as against the said party. It is also well settled that Section 13(1-A)(i) is subject to Section 23(1)(a) of the Act as held in Dharmendra Kumar Vs. Usha Kumar, , Dharmendra Kumar Vs. Usha Kumar, . Therefore, we have to see as to what is meant by "wrong" or "disability" within the meaning of Section 23(1)(a) of the Act. In fact the decisions in Dharmendra Kumar, Dharmendra Kumar Vs. Usha Kumar, ., Smt. Bimla Devi Vs. Singh Raj, . and the very decision cited by the learned Counsel for the appellant viz., Soundarammal (1 supra) held that non- compliance of a decree for restitution of conjugal rights or failure to cohabit in the case of grant of a decree for judicial separation, by itself will not be a "wrong" or "disability" within the meaning of Section 23(1)(a) of the Act. In fact, the Supreme Court in Jeet Singh and Others Vs. State of U.P. and Others, ., stated the effect of judicial separation as under:

"The judicial sanction of separation creates many rights and obligations. A decree or an order for judicial separation permits the parties to live apart. There would be no obligation for either party to cohabit with the other. Mutual rights and obligations arising out of a marriage are suspended. The decree however, does not sever or dissolve the marriage. It affords an opportunity for reconciliation and adjustment."

Therefore, when a person suffers a decree of judicial separation, there is no obligation for "either party to cohabit with the other",

Then the question is what is meant by a "wrong" or "disability" within the meaning of Section 23(1)(a) of the Act ? In our considered view, the "wrong" or "disability" contemplated by Section 23(1)(a) is something which is done by the party seeking relief after the passing of the decree for judicial separation or restitution of conjugal rights or the like. In fact in a judgment of a Division Bench of this Court in Murahari Rao v. Vasantha Manohari 1983 (2) ALT 151, the Bench summarised the position as under:

"Section 23(1)(a) holds the reins over Section 13(1-A)(i) and the person cannot make capital out of own wrong and the relief will be denied in the event of this conduct notwithstanding the efflux of time stipulated in Section 13(1-A)(i)."

It was further stated in the said judgment as follows:-

"The conduct anterior to the decree should not be permitted to cast a shadow and the subsequent conduct alone is germane."

With respect, we are of the view that this decision lays down the law correctly. To construe it otherwise will disable or disentitle the person who sufferred a decree of judicial separation or restitution of conjugal rights from approaching the Court seeking the relief u/s 13(1-A)(i) of the Act which is not the intention of the Legislature. We have already referred to this aspect in the foregoing paragraphs. The learned Counsel for the appellant relied upon the judgment of Madras High Court in Soundarammal''s case (1 supra). This decision is not an authority for the proposition contended for by the learned Counsel for the appellant. In the said case, the wife obtained the decree for judicial separation on the ground of adultery on the part of the husband. Subsequently, after the statutory period had elapsed,as provided u/s 13(1-A)(i) of the Act, the husband filed application for divorce on the ground that there has been no resumption of cohabitation between the parties for the statutory period. Evidence was let in to establish that even after the passing of the decree for judicial separation and even during the statutory period, as well as during the pendency of the O.P. for divorce till the date of recording of evidence of the husband, the husband continued to lead the adulterous life. The said evidence was believed by the Courts and, therefore, on the finding that the husband continued to lead an adulterous life even after the decree for judicial separation, the learned judge came to the conclusion that the factor viz., ''leading an adulterous life'' would amount to "wrong" or "disability" disentitling the husband from obtaining the decree for divorce u/s 13(1-A) of the Act. This was made very clear by the learned judge himself in the following words:

"The very fact that he relies upon the order based in O.P.85/1967, as a ground for relief, proves beyond any doubt that he still lives with another woman. Even the lower appellate Court had framed the point on the admitted fact that he is still living with Thirunamakkani."

Again the learned Judge stated as under:

"Even thereafter, it continues to exist totally constituting a ''wrong'' within the meaning of Section 23(1)(a) of the Act. After the order was passed in O.P.85 of 1967 if the husband had ceased to lead an adulterous life, or if the woman had abondoned him or even if she had died, then there can be no valid ground for the appellant herein to refuse to cohabitate with him, in which event, respondent may establish that he has not committed any wrong subsequent to the earlier decree."

Therefore, it is clear that the "wrong" contemplated by Section 23(1)(a) of the Act is a "wrong" arising out of the conduct of the party after the passing of the earlier decree for judicial separation or restitution of conjugal rights etc.

In this case, R.W.1 in her evidence has not stated anything to establish that the husband was guilty of any reprehensible conduct which can be termed as "wrong" within the meaning of Section 23(1)(a) of the Act. On the contrary she has stated that even in the earlier O.P., she did not allege any cruelty against the husband. She had specifically stated that her parents came and took her for Dassera festival in 1977 and thereafter she did not go to the husband. She was waiting for the husband or his parents to come and take her. She did not attempt to go to the marital home. Finally she also stated that after she obtained the decree for judicial separation, she did not make any attempt for reconciliation. This evidence far from showing that the husband did any ''wrong'' or had any ''disability'' from claiming Section 13(1-A)(i) relief, indicates clearly that she herself is the erring spouse. There is nothing on the record to establish that after the passing of the decree for judicial separation in O.P.25 of 1986, the husband has committed any "wrong" or disabled himself from obtaining the relief of divorce u/s 13(1-A)(i) of the Act.

For the foregoing reasons, we do not find any substance in this appeal. The appeal is dismissed but in the circumstances, without costs.