Yamsani Janamma vs Yamsani Veeresham

P. Venkatarama Reddi, J.—This appeal is filed against an order in OP 217 of 1983 (on the file of the Subordinate Judge, Karimnagar) granting divorce to the parties u/s 13(1 A)(ii) of the Hindu Marriage Act. Section 13(1 A)(ii) provides for the dissolution of the marriage by a decree of divorce if there has been no restitution of conjugal rights for a period of one year or upwards after the passing of a decree for restitution of conjugal rights. The decree for restitution of conjugal rights was passed on 28.1.1981. Exhibit Al is the certified copy of the decree in OP 146 of 1980 on the file of the Subordinate judge, Karimnagar, granting the decree for restitution of conjugal rights. On the ground that there was no resumption of marital relations after the said decree for more than two years, the present OP was filed in March, 1983. The wife (appellant herein) filed a counter stating that the husband (respondent) did not make any efforts to take her back after the decree was passed and that the allegation that he has been persuading her to come and join him was wrong. It is also stated therein that the respondent married another woman and he has been living with her at Karimnagar. In the deposition before the Court, she maintained that the respondent did not come to her nor sent anybody requesting her to join him and stated that the husband was not interested in taking her back. She also stated that the respondent married a girl by name Dhanalakshmi.

The lower Court held that the decree for restitution of conjugal rights was not complied with for more than one year and, therefore, in terms of Section 13(1 A)(ii), a decree of divorce ought to be granted.

It is an admitted case that there was no reunion between the appellant and the respondent after the decree for restitution of conjugal rights was granted on 28.1.1981. The OP for dissolution of marriage was filed more than two years after the decree for restitution of conjugal rights was passed. Though the decree was an exparte decree, it cannot be said that the appellant was unaware of the same because she filed an application to set aside the exparte decree in the year 1981 itself. The decree was initially set aside, but in the CRP, that order was reversed, thereby confirming the decree for restitution of conjugal rights. When such is the case, it was incumbent on the part of the appellant to take the lead to join the husband. Assuming that the husband''s version that he went to her alongwith PW 2 to persuade her to come back to the martial home is unreliable, even then it does not absolve the appellant from the obligation to take initiative to join the husband in veiw of the decree for restitution of conjugal rights opera ting against her. In M. Suryakantham v. Ranga Rao (1973) An. WR158, a Division Bench of this Court considered the scope of Section 13(1 A)(ii) and repelled the contention that the failure of the respondent (husband in that case) to take any steps to enforce the decree for restitution of conjugal rights by filing an execution petition is riot a bar for maintaining the OP for annulment of the marriage u/s 13(1 A)(ii) of the Act. The legal position has been laid down thus :

"Admittedly the onus is on the party who approaches the Court to establish to the satisfaction of the Court that there has been no restitution of conjugal rights between the parties for a period of two years or more after passing of a decree for restitution of conjugal rights."

The period is now curtailed to one year. As far as the initial onus is concerned, that has been discharged by the respondent because, as already noted, it is an admitted case that there was no resumption of marital life after the decree for restitution was passed.

The learned Judges then observed :

"The party who suffered a decree for restitution of conjugal rights has a statutory duty and obligation to make an honest and bonafide attempt to satisfy the decree. Thereupon the person who obtains such decree has a duty and obligation to receive his or her spouse and do every reasonable act for his or her comfortable stay. The person who obtained the decree for restitution of conjugal rights should not by his positive act make it impossible for the other spouse to go and live with that party. For instance, the husband who obtained a decree for restitution of conjugal rights is not entitled to claim divorce on the ground that the wife did not come and live with him for a period of two years or upwards, if he was living with a concubine or married again or has made himself not eligible to the company of his wife. In such a case, the wife may refuse to live with her husband inspite of his obtaining a decree for restitution of conjugal rights. But, where no such impediments are found for the wife to go and live with her husband, she cannot successfully resist the claim of her husband for divorce if she did not make any attempt to go and live with him.

Section 23(1) makes it obligatory for the Court to satisfy itself about two factors before granting a decree for any relief in any proceeding under the Act, whether defended or not. They are (i) the existence of the grounds for granting the relief sought for by the applicant, and (ii) that the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief....

A person who seeks any relief under the Act is prohibited from taking advantage of his or her own wrong or disability for the purpose of such relief. Whether a person is trying to take advantage of his or her own wrong or disability is a question of fact depending upon the facts and circumstances of each case."

In Balabhadra Pradhan Vs. Sundarimani Devi, , it was laid down that if the wrong was committed by a spouse subsequent to the passing of the decree for restitution of conjugal rights and that wrong is serious enough, the same would disentitle him /her to obtain a decree for divorce. This principle accords with the view expressed by the Division Bench in the first case.

Applying the tests enunciated by the Division Bench in M. Sutyakanthatn''s case, (supra), we are of the view that the appellant, having suffered a decree for restitution of conjugal rights, did not discharge the duty cast on her to make a bonafide attempt to set aside the decree. However, she had taken the stand that the respondent remarried and, therefore, he was not interested in living with her. Excepting her bare statement, there is no evidence about the respondent re- marrying. It may be seen that in the counter filed in the OP, the name of the person whom the respondent married again was not given. It was merely stated that "the petition married another woman as his second wife and at present he is living with her at Karimnagar". However, in the deposition given three years later, the name was mentioned as. Dhanalakshmi. The omission to mention the name of the woman whom the respondent allegedly married is, in our view, material and it casts a doubt on the version of the appellant. Moreover, according to the appellant (examined as RW1) the remarriage took place about three years back. She was examined in April, 1986. Giving due allowance to the fact that she had given only an approximate date, we may take it that the marriage took place some time in the year 1982. Even by that time, the one year period from the date of Exhibit Al decree had elapsed. There is no explanation forthcoming as to why she did not join the husband during that period. On the other hand, her conduct in seeking to set aside the ex-parte decree and contesting the matter further in the High Court is indicative of her intention not to comply with the decree for restitution of conjugal rights. In the circumstances, we are not inclined to interfere with the decree granted by the lower Court, The civil miscellaneous appeal is, therefore, dismissed. No costs.