Tej Kour vs Hakim Singh

J.N. Bhat, J.

1.This is an appeal against the decree of the learned District Judge Jammu dated 5th January 1965 whereby he has rejected the petition of the

Appellant for divorce.

2.The facts of the case are very brief. The Appellant was granted a decree for judicial separation by the District Judge Jammu on 28-8-58.

According to the Appellant she did not resume cohabitation with the Respondent since then. The present application was brought by her on 30-9-

Therefore u/s 13(viii) of the Hindu Marriage Act she claimed a decree for divorce.

The defence of the Respondent was that he had been sentenced to life imprisonment and there-lore it was impossible for him to perform his

marital obligations towards the Appellant. The Appellant was living an adulterous life.

The trial Court of the District Judge Jammu framed only one issue in the case and it was as follows:

Whether the applicant has not resumed cohabitation with the non-applicant after the passing of the decree for judicial separation ?

The finding of the lower Court is:

It is an admitted fact that the Petitioner has obtained a decree for judicial separation on the ground of cruelty from this Court on 28-8-58. The

present application for dissolution of marriage by divorce has been made by her on 30-9-63. There is also no dental of the fact that the

Respondent was serving a. sentence of life imprisonment at the time when the decree for judicial separation was passed in favour of the Petitioner

against him. He is still serving a sentence of life imprisonment in central jail Jammu.

He has therefore held ""Therefore, by operation of law, it was not possible for the Respondent to resume cohabitation with, the Petitioner as he was

serving a sentence of imprisonment: in the Central Jail Jammu ....

We are afraid the learned District Judge has misinterpreted the law. The decision of this case depends upon the interpretation of Section 13 (viii)

of the Hindu Marriage Act. This section reads:

Any marriage may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party

has not resumed cohabitation for a space of two years or upwards ' after the passing of a decree for judicial separation against that party.

A plain reading of this section would lead to the inference that a decree for divorce has to follow a decree for judicial separation after two years or

up-wards as a matter of course, unless the parties to litigation resume cohabitation by that time. No conditions or limitations are imposed in this

Sub-section. The only exception when a decree for divorce will not follow is the matter of resumed cohabitation.

In this case it is admitted by the parties that there has been no cohabitation between the parties after the passing of a decree for judicial

separation. Why cohabitation has not been resumed is not material to the language of the section. The scheme of the Act seems to be that under

certain circumstances cither party to a marriage may be entitled to a decree for judicial separation. After a decree for judicial separation is passed

in favour of a party, this subjection gives the winning spouse a right to claim divorce after two years, unless he or she, as the case may be, waives

this right by resuming cohabitation within a period of two years from"" the previous decree. It cannot have been the intention of the law to make this

Sub-section enforceable upon an act, desire or volition of the defeated party, because if a decree for judicial separation is passed against one of

the spouses on any ground it will be not only the desire but the attempt of that party in most cases to get the decree- defeated and rendered null

and void by resuming cohabitation.

The desire to resume cohabitation by the defeated party is of no consequence. A decree for judicial separation provides a preliminary step to the

winning spouse to obtain a full divorce after two years. During this period even after a decree for judicial separation is passed the marriage is not

dissolved. The marriage remains intact and comes to an end only when a decree for divorce is passed u/s 13(viii). The legislature therefore, by

enacting this provision laid down that after a decree for judicial separation is obtained by one of the parties to the marriage, before the marriage

can be finally dissolved between the parties, a period of two years should elapse during which time the parties might come to a settlement or the

winning party might change his or her opinion and may reconcile himself or herself to the marriage. This can be done if the winning spouse resumes

co-habitation with the defeated party. It is an option given exclusively to the winning spouse. The defeated spouse does not at all figure in the

matter because unless the winning party consents, despite the desire of the defeated party, cohabitation cannot be resumed.

Therefore as already stated the fact that the defeated party was prevented from this cause or that, in the present case by the incarceration of the

Respondent in jail, from resuming cohabitation will not affect the matter at all. If the winning spouse means to relax the rig ours of the decree and its

effects that party alone can do so.

In the instant case the lady has shown no inclination to resume cohabitation with the Respondent during the last two years and therefore whether

the husband was anxious to resume cohabitation with the Appellant or not would to of no consequence. In these circumstances we think that the

lady Appellant in this case is entitled to claim the benefit of Section 13(viii) and get a decree for divorce as admittedly no cohabitation has been

resumed by her with her husband for more than two years after the passing of the decree for judicial separation. In our opinion therefore the

decree passed by the lower Court is not maintainable. We set it aside and pass a decree for divorce in favour of the Appellant against the

Respondent, but in the circumstances of this case we leave the parties to bear their own costs throughout.

S. Murtaza Fazl Ali, J.

I agree.