ORDER
Motilal B. Naik, J
1. The
appellant who is the husband of the respondent, has filed this appeal aggrieved by the orders passed by the Family Court, Hyderabad in OP No.1 of 1997 dated 16-12-1998.
2. The appellant moved the Family Court at Hyderabad by presenting a petition under Section 13(1-A)(i) of the Hindu Marriage Act, 1955 for dissolution of his marriage with the respondent on the ground that there was no resumption of cohabitation between the parties to the marriage for a period of one year and upwards after passing of a decree for judicial separation.
3. For the purpose of convenience, the parties are addressed as petitioner and respondent as arrayed in OP No.1 of 1997.
4. The brief allegations in the petition, OP No.1 of 1997 are as under:
The petitioner was judicially separated from the respondent since 23rd December, 1995 pursuant to the order passed by the Family Court at Hyderabad in OP No.358 of 1995 filed by the respondent-wife. According to the petitioner, the decree for judicial separation though was passed on 23-12-1995 by the Family Court, there has been no resumption of cohabitation between him and the respondent since that date till 28-12-1996, the date on which the petition for dissolution of marriage was presented in OP No.l of 1997 before the Family Court, Hyderabad. The petitioner also alleged that the respondent deserted him on 1-2-1993 itself and had been cruel towards him all
along and after desertion he has been residing separately in the house bearing No.1-8-139/92 of Golnaka at Alwal near Alwal Railway Station, Secunderabad for the past one-and-a-half years. He further alleged that the respondent-wife is not at all interested in cohabitation with him and despite his making efforts for reconciliation, she determined not to lead marital life with him as reflected from the orders passed by the Family Court in OP No.358 of 1995 dated 23-12-1995.
5. According to the petitioner, the respondent through her supporters, instead of making efforts to resume cohabitation with him, has been continuously harassing him by phoning to his higher officials of his office and abusing him and intimidating him by threats to his life during the last one year and also blackmailing, demanding money and transfer of property in her name, in front of the well wishers and friends of the petitioner. As a result of the abnormal behaviour of the wife, petitioner complained, he suffered mental agony and was looked down by his friends circle which also hurt his feelings.
6. Petitioner alleged that he made efforts to contact her in person and through his well-wishers but all his efforts proved futile. As and when he tried to meet her, he found the doors of he house locked and her whereabouts are not known for the last one year. Since there was no resumption of cohabitation between the petitioner and respondent from 23-12-1995 onwards, petitioner was constrained to move the Family Court by presenting a petition seeking dissolution of his marriage with the respondent on the said ground.
7. The respondent filed a detailed counter denying the allegations made by the petitioner. The respondent stated that she was not interested in obtaining an order of judicial separation, but however, in order to bring some change in the attitude of the
petitioner, she had taken the step of approaching the Court and sought judicial separation. The respondent also stated that she desired to resume cohabitation, provided the petitioner behaved liked a normal individual and give up his cruel and irresponsible attitude. As there was no change in the attitude of the petitioner as he was continued to be cruel, she approached the Court for judicial separation, expecting that this period of judicial separation would bring some change in him and their grown-up daughter would also help them to change their altitude towards each other. The respondent further alleged that she had tried to contact the petitioner through well-wishers also but her efforts failed to yield fruitful results.
8. According to the respondent, immediately after passing of the decree for judicial separation in OP No.358 of 1995 on 23-12-1995 by the Family Court, the petitioner started giving advertisement in newspapers inviting matches for re-marriage. She stated that not only the petitioner made efforts by inviting alliances through newspaper advertisements but also his family members started inquiring about the matches for his remarriage. She alleged that the petitioner was residing with a woman by name Bhavani in Kukatpalli area and she has reason to believe that he has contracted second marriage with the said Bhavani as told to her by her friends and well-wishers.
9. The petitioner examined himself as PW1 and got marked Exs.A1 to A5 on his behalf. On behalf of the respondent-wife, she examined herself as RW1 and examined four more witnesses as RWs.2 to 5 and Exs.B1 to B13 are marked on her behalf.
10. The Court below on the basis of the pleadings and in the light of the oral and documentary evidence let in by both the parties, came to the conclusion that the
decree for judicial separation obtained by the respondent-wife is without any contest and it is literally a consent decree. The Family Court further held that a consent decree so obtained for judicial separation does not confer jurisdiction to pass a decree for divorce under Section 13(1-A) (i) of the Hindu Marriage Act. To reach to such a conclusion, the Family Court relied on a decision of the Division Bench of the Allahabad High Court in Smt. Hirakali v. Dr. Ram Asrey Awasthi, and held that as none of the grounds on which basis the decree for judicial separation is sougut, were proved and as such the Court lacked competency to pass a decree for divorce for want of jurisdiction and as such the earlier decree passed for judicial separation even though with consent of parties is without jurisdiction and as such the present petition filed under Section 13(1-A) (i) of the Act for dissolution of the marriage on the basis of a decree obtained for judicial separation, is not in accordance with Section 23 of the Hindu Marriage Act and that the decree of judicial separation earlier passed is in violation of the mandatory provisions of Section 23 of the Act and as such that decree cannot be regarded as a decree in terms of Section 10 of the Hindu Marriage Act. The Court below further observed that the intention of the parties can be gathered from the surrounding circumstances as the petitioner himself had consented for passing of a decree for judicial separation and as such the consent given by the petitioner itself is an indication that the petitioner desired to get rid of the respondent and the petitioner cannot be permitted to cover up his own misdeeds and permitted to take advantage of his own wrongs. While holding so, rejected the petition filed for dissolution of marriage under Section 13(1-A)(i) of the Hindu Marriage Act.
11. We have heard the appellant/party -in-person and also Smt. Sudha, learned Counsel for the respondent-wife elaborately.
12. The point for consideration is whether the appellant-husband is entitled to seek decree for divorce on the ground that there was no resumption of cohabitation between the parties to the marriage for one year and more after passing of a decree for dissolution on a petition filed by the respondent-wife in OP No.358 of 1995 dated 23-12-1995?
13. As discussed above, the Court below has rejected the application filed by this petitioner-husband seeking dissolution of his marriage with the respondent-wife under Section 13(1-A) (i) of the Hindu Marriage Act, 1955 on the ground that the earlier decree for judicial separation passed by the Family Court in OP No.358 of 1995 dated 23-12-1995 is not a decree on consent, the allegations made in the petition were not proved by the husband and as such the said decree so passed is not a decree in terms of Section 10 of the Hindu Marriage Act, 1955 which could be a basis for seeking dissolution of the marriage under Section 13(1-A) (i) of the Hindu Marriage Act. The Court below further opined that since the husband consented to passing of the decree for judicial separation on a petition filed by the wife in OP No.358 of 1995, such decree is a collusive decree and as such the petitioner-husband cannot take advantage of that decree for obtaining divorce under Section 13(1-A)(i) of the Hindu Marriage Act, 1955 on the ground that there is no resumption of cohabitation between them from the date of passing of the decree for judicial separation i.e., on 23-12-1995. The Court below placing reliance on the decision of the Allahabad High Court (supra), reached to the conclusion that the petitioner is not entitled to seek dissolution of his marriage with the respondent under Section 13(1-A) (i) of the Hindu Marriage Act, 1955 and dismissed the OP No.1 of 1997 by an order dated 16-12-1998.
14. Insofar as the decision of the Division Bench of the Allahabad High Court
in Smt. Hirakali’s case cited (supra), relied upon by the Court below while dismissing OP No.l of 1997, we must say, the view taken in the said decision by the Division Bench of the Allahabad High Court cannot be held to be a correct view in the light of the decision of the Supreme Court in Smt. Saroj Rani v. Sudarshan Kumar Chadha, . The Supreme Court in the decision above (supra), while agreeing with the view of a Full Bench decision of the Punjab and Haryana High Court in Joginder Singh v. Smt. Pushpa, , held that consent decrees per se in matrimonial matters cannot be treated as collusive decrees and as such, when a petition is filed for dissolution of marriage on the ground of non-resumption of cohabitation between the parties to the marriage from one year and Upwards from the date of passing a decree for judicial separation, the husband is not disentitled to get a decree of divorce.
15. The wife presented a petition under Section 10 of the Hindu Marriage Act, 1955 in OP No.358 of 1995 on the file of the Family Court, Hyderabad seeking a decree of judicial separation on several grounds. The husband filed an elaborate counter denying the allegations made by the wife in the said OP No.358 of 1995. However, the husband, in order to purchase peace with the wife indicated in his counter that he has no objection for grant of a decree for judicial separation as sought by her. The Court while disposing of OP No.358 of 1995 on 23-12-1995, at page 2 of its order, made the following observation, viz.
“After filing of the counter by the respondent(husband), the estranged couple were asked to attend the Court on 22-12-1995 for effecting re-conciliation. Every effort was made to persuade the couple for re-union or for re-conciliation in the interests of their marital life and for the future of their child. Both the couple did not show response and they
expressed that there is no possibility of re-union between them. The respondent (husband) expressed that he has no objection for granting relief of judicial separation. In the circumstances of the case, as desired by both the couple, it is desirable to pass a decree for judicial separation between them.”
16. The above observation of the Court which passed the decree for judicial separation at the instance of the wife in OP No.358 of 1995, amply demonstrate that both the parties were not willing to reach to a compromise for leading marital life jointly. The efforts made by the Court to persuade the couple for re-union or for reconciliation in the interest of their marital life also failed as is evident from the above observation of the Court. The above observation of the Court, in our considered view, demolishes the stand now taken by the respondent-wife that the decree for judicial separation passed in OP No.358 of 1995 on 23-12-1995 is a collusive decree and that the husband had seemingly planned to get rid of her and consented for passing of the said decree, cleverly, in order to lay foundation for obtaining a decree of divorce subsequently.
17. Section 13(1-A) (i) of the Hindu Marriage Act, 1955 provides for seeking dissolution of the marriage by a decree of divorce at the instance of either party to the marriage if there is no resumption of cohabitation between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties. This provision makes it abundantly clear that if a petition is filed seeking dissolution of the marriage by either party to the marriage on the ground of non-resumption of cohabitation between the parties to the marriage, such spouse has to adduce necessary evidence to prove that there is no resumption of cohabitation between the parties to the marriage for a
period of one year or upwards from the date of passing the decree for judicial separation.
18. In this case, the petitioner who was examined as PW1 categorically deposed before the Court below that there is no cohabitation between him and his wife from 23-12-1995 on which date the wife had obtained a decree for judicial separation in OP No.358 of 1995 till the date of presenting OP No. 1 of 1997 on 28-12-1996. The wife, however, examined herself as RW1 and also examined four more witnesses on her behalf and tried to bring on record that she made efforts to resume cohabitation with the husband and also both of them stayed together for some time and there was resumption of cohabitation between them. We have carefully scrutinised the evidence of RWs. 1 to 5. On a careful scrutiny of their evidence, we are unable to solicit the view that RWs.2 to 5 have seen the petitioner and respondent staying together as husband and wife. Though the wife has marked Exs.B3 to B7 which are paper publications, inviting matrimonial proposals by the husband, the source of such publications have not been proved by the wife. The evidence of RWs.2 to 4 who are friends and colleagues of the wife and who claimed that they have noticed the petitioner and the respondent staying together as husband and wife, fails to impress us to believe that there has been resumption of cohabitation between them. On the contrary, the petitioner who was examined as PW1 has admitted the fact that on two or three occasions he went to the house of the wife in order to settle the marriage proposals of his daughter. Except this, there is nothing worth on record to show that both of them have stayed under one roof as husband and wife and resumed cohabitation.
19. Counsel for the respondent-wife contended that Section 23 of the Hindu Marriage Act, 1955 imposes an obligation on the Court not to permit a wrong doer to
take advantage of his or her own misdeeds. She contended that the petitioner is trying to take advantage of the consent decree dated 23-12-1995 passed by the Court below to seek dissolution of the marriage between the parties, which cannot be permitted.
20. The principle enunicated under Section 23 of the Hindu Marriage Act is based on the cardinal rule that a wrong doer should not be permitted to take advantage of his or her own wrong while seeking relief under the Act from the Court. It is this factor, which obligates the Court to satisfy itself whether the wrong doer is trying to take advantage of his/her misdeeds. The conduct of the parties who approached the Court for any relief under this Act has to be viewed from this angle also, even if the other party does not contest the matter.
21. We have carefully examined this aspect also. In this case, on a careful scrutiny of the evidence on record, we are of the view that the allegation of the wife that the husband has given his consent for passing the decree of judicial separation designedly in order to obtain a decree of divorce subsequently, is unfounded inasmuch as the Court which passed the decree for divorce on 23-12-1995 has found the parties not positively responding to the reconciliation efforts made by the Court to lead the marital life jointly and as such held that there is no possibility of re-union between them. Therefore, it cannot be said that the husband is trying to take advantage of his own misdeeds.
22. The Court below, however, did not go into these aspects but dismissed the OP No.1 of 1997 filed by the husband mainly on the ground that the earlier decree obtained by the wife in OP No.358 of 1995 dated 23-12-1995 is a collusive decree and as such it is not a decree in terms of Sectiort 10 of the Hindu Marriage Act, 1955
and that decree cannot be a basis for seeking dissolution of the marriage in the subsequent proceedings. Since we have discussed in the preceding paragraphs about the implication of the earlier decree passed in OP No.358 of 1995 for judicial separation, we must say, the decree earlier passed in the said OP is a decree in terms of Section ] 0 of the Hindu Marriage Act, 1955 and is available to the husband for seeking dissolution of the marriage with the wife under Section 13(1-A)(i) of the Hindu Marriage Act, 1955 on the ground of non-resumption of cohabitation between the parties to the marriage subject to the petitioner satisfying about the non-resumption of cohabitation.
23. We may, incidentally mention, though not relevant, that in the counter filed by the wife, she has made allegations against the husband that he has contracted second marriage with one Bhavani and he is living with her in Kukatpalli area and has also invited matrimonial alliances through newspapers. In support of her claim, she has also examined RWs.2 to 5. However, RWs.2 to 5 could not state as to the source of those paper publications Exs.B3 to B7. The evidence of RWs.2 to 4 is only hearsay evidence and as such, the allegations made against the husband by the wife could be held as unfounded allegations. The letters Exs.B 1 and B2 addressed by the husband to his daughter, which have been relied upon by the wife to support her claim that the husband had planned to get rid of her, would, on the contrary reflect that the husband was very much fond of his family and was longing for the love and affection from the family. Apparently, the husband was disguested with the manner in which the wife moved the Family Court for seeking a decree for judicial separation, which prompted him to say goodbye to her, who is viewed as an unwilling partner.
24. All these factors would invariably go to show that the allegations made by the
wife against the husband that the husband is a schemer and had planned to get rid of her and in that direction he consented for the decree of judicial separation with the sole intention of getting a decree of divorce subsequently, are unfounded and are based on hypothetical presumptions not supported by any tangible evidence. It is apparent that both the husband and wife are gainfully employed and have a grown up daughter and yet both of them, despite the efforts made by the Family Court in OP No.358 of 1995, have not reconciled to lead a marital life together.
25. Having regard to the above discussion, we are inclined to hold that the Court below has erroneously held that the earlier decree passed in OP No.358 of 1995 dated 23-12-1995 is not a decree in terms of Section 10 of the Hindu Marriage Act, 1955 and on which basis, no petition could be presented seeking dissolution of the marriage under Section 13(1-A)(i) of the Hindu Marriage Act. This finding of the Court below, in our view, is unsustainable. We hold that the decree passed in OP No.358 of 1995 dated 23-12-1995 is a valid decree and it is not collusive. In the light of our findings, we hold that the petitioner has established the ingredients as required under Section 13(1-A)(i) of the Hindu Marriage Act, 1955 and as such he cannot be denied a decree of divorce. Accordingly, the order and decree of the Court below passed in OP No.1 of 1997 dated 16-12-1998 are set aside. We allow OP No.1 of 1997. Consequently, we grant a decree of divorce, while dissolving the marriage between the petitioner and the respondent in terms of Section 13(1-A)(i) of the Hindu Marriage Act, 1955.
26. In the result, this appeal is allowed. However, no costs.