FAO No. 155-M of 1998
-1-
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
FAO No. 155-M of 1998
Date of Decision : October 22, 2008
Smt. Asha Rani
..........Petitioner
Versus
Madan Gopal
......Respondent
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. R.S. Mamli, Advocate
for the petitioner.
Mr. Sanjiv Sharma, Advocate
for the respondent.
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VINOD K. SHARMA, J. (ORAL)
The appellant wife seeks setting aside of the judgment and
decree dated 12.8.1998 passed by the learned Addl. District Judge,
Yamunanagar at Jagadhri allowing a petition moved under Section 13 of the
Hindu Marriage Act.
The respondent-husband was married with the appellant at
Yamunanagar according to Hindu rites and ceremonies about 17 years back.
They lived together and cohabited as husband and wife. Two children
namely Kirti and Naveen Kumar, who were of the age of 10 years and 7
years respectively at the time of filing of petition, were born out of the said
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wedlock. It was the case of the respondent-husband that on 28.3.1991 the
appellant went to the house of her parents from where she never returned to
the matrimonial home inspite of the efforts made by the respondent/husband
personally as well as through his relatives and friends.
The respondent-husband thereafter moved a petition under
Section 9 of the Hindu Marriage Act on 25.7.1991, which was dismissed.
On 18.4.1992, the appellant-wife filed a petition under Section
9 of the Hindu Marriage Act, which was decreed by way of ex parte decree
on 4.11.1993.
It is the case of the appellant that after passing of the abovesaid
decree the husband tried to bring the appellant-wife to matrimonial home
but she did not join him. It is the case of the respondent-husband that inspite
of passing of decree dated 4.11.1993 there had been no restitution of
conjugal rights between the parties for a continuous period of more than one
year.
Therefore, the respondent-husband sought a decree of divorce
on the ground that there had been no restitution of conjugal rights for a
period of more than one year after passing of the decree under Section 9 of
the Hindu Marriage Act.
The petition was contested by the appellant and a specific plea
was taken that due to behaviour of the respondent-husband she was
compelled to leave the matrimonial home and ultimately she had to file a
petition for restitution of Conjugal Rights. The husband failed to comply
with the decree passed by the Court. It was also the claim of the appellant-
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wife that respondent-husband was estopped from filing the petition in view
of the bar under Section 23 of the Hindu Marriage Act as inspite of decree
having been passed under Section 9 of the Hindu Marriage Act the
respondent-husband intentionally and deliberately failed to comply with the
decree and, therefore, could not take advantage of his own wrong to get the
divorce on the basis of said decree.
On the pleadings of the parties, the learned matrimonial Court
famed the following issues :-
“1. Whether there has been no restitution of conjugal
rights between the parties after the passing of the
decree dated 4.11.1993. If so its effect ? OPP
2. Whether the present petition is not maintainable
as alleged in the preliminary objection No.1 of the
written statement ? OPR
3. Whether the petitioner is estopped from filing the
present petition ? OPR
4. Relief.”
Issues No. 1 to 3 were taken up together. In support of the
issues framed, respondent-husband appeared as PW-1, who deposed that his
wife i.e. the appellant obtained decree for restitution of Conjugal Rights on
4.11.1993 but since then there was no restitution of Conjugal Rights. It was
denied by the husband-respondent that he did not make efforts to bring the
respondent with him after passing of the decree rather she refused to come
and settle with him. The copy of the judgment and decree was also placed
on record as Ex. PA.
The appellant appeared as RW-1 where she claimed that after
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passing of the decree the respondent-husband never came to take her instead
she tried to join the company of the husband and also visited his house to
live with him but he refused to do so as he wanted to take divorce. The
appellant also placed on record copy of the order as Ex. PB passed in
execution petition on 14.12.1995.
The learned matrimonial Court observed that the respondent-
husband had taken a separate room from his parents for residence with his
wife and, therefore, he could not be said to be at fault.
The learned matrimonial Court thereafter recorded a finding
that even if it was presumed that the appellant was ready to live with the
husband who was not ready to keep her, the relief of divorce could not be
denied to the petitioner when the decree dated 4.11.1993 for restitution of
Conjugal Rights was not complied with till 6.2.1996 when the petition for
divorce was filed. In support of this finding the reliance was placed on the
judgment of the Full Bench of this Court in the case of Smt. Bimla Devi
D/o Bakhtawar Singh Vs. Singh Raj s/o Dasonadhi Ram AIR 1977
Punjab & Haryana 167 wherein it has been held as under :-
“The provisions of S. 23(1)(a) cannot be invoked to
refuse the relief under S. 13(1-A)(ii) on the ground of
non-compliance of a decree of restitution of conjugal
rights where there has not been restitution of conjugal
rights as between the parties to the marriage for a
period of one year or upwards after the passing of
decree for restitution of conjugal rights in proceedings
in which they were parties. There is no in the Code of
Civil Procedure by which the physical custody of the
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the spouse who obtained the decree for restitution of
conjugal rights. Thus, merely because the spouse, who
suffered the decree, refused to resume cohabitation,
would not be a ground to invoke the provisions of S. 23
(1)(a) so as to plead that the said spouse is taking
advantage of his or her own wrong.”
The Court thus came to the conclusion that in view of the law
laid down by this Court, the respondent-husband was entitled to the decree
of divorce and consequently all the issues were decided in favour of the
respondent-husband.
Mr. R.S. Mamli, learned counsel appearing on behalf of the
appellant vehemently contends that the impugned order cannot be sustained
in view of the law laid down by the Hon’ble Supreme Court in the case of
Hirachand Srinivas Managaonkar V. Sunanda AIR 2001 Supreme Court
1285 wherein the Hon’ble Supreme Court has been pleased to laid down as
under :-
” All that is provided in S. 13 (1A) is that either party to
a marriage may present a petition for dissolution of the
marriage by a decree of divorce on the ground that there
has been no resumption of cohabitation between the
parties to the marriage for a period of one year or more
after the passing of a decree for judicial separation in a
proceeding to which they were parties or that there has
been restitution of conjugal rights as between the parties
to the marriage for a period of one year or more after
the passing of a decree for restitution of conjugal rights
in a proceeding to which both the spouses were parties.
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The section fairly read, only enables either party to a
marriage to file an application for dissolution of the
marriage by a decree of divorce on any of the grounds
stated therein. The section does not provide that once the
applicant makes an application alleging fulfillment of
one of the conditions specified therein the Court has no
alternative but to grant a decree of divorce. Such an
interpretation of Section will run counter to the
provisions in S. 23 (1) (a) or (b) of the Act. In S. 23 (1) it
is laid down that relief should be granted if the Court is
satisfied that any of the grounds for granting relief exists
and further that the petitioner is not in any way taking
advantage of his or her own ‘wrong’ or disability for the
purpose of such relief. If the provisions in S. 13 (1A) and
S. 23 (1) (a) are read together the position that emerges
is that the petitioner does not have a vested right for
getting the relief of a decree of divorce against the other
party merely on showing that the ground in support of
the relief sought as stated in the petition exists. It has to
be kept in mind that relationship between the spouses is
a matter concerning human life. Human life does not run
on dotted lines or charted course laid down by statute. It
has also to be kept in mind that before granting the
prayer of the petitioner to permanently snap the
relationship between the parties to the marriage every
attempt should be made to maintain the sanctity of the
relationship which of importance not only for the
individuals or their children but also for the society.
Whether the relief of dissolution of the marriage by a
decree of divorce is to be granted or not depends on the
facts and circumstances of the case. In such a matter it
will be too hazardous to lay down a general principle of
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universal application.
The contention that the right conferred by sub-sec. (1-A)
of S. 13 is absolute and unqualified and that this newly
conferred right is not subject to provisions of S. 23 is
fallacious. Prior to the amendment under clauses (viii)
and (ix) of S. 13 (1) the right to apply for divorce was
restricted to the party which had obtained a decree for
judicial separation or for restitution of conjugal rights,
such right was not available to the party against whom
such a decree was passed. By the amendment the right
was conferred on either party. This is the limited object
and effect of the amendment introduced by Act No. 44 of
1964. The amendment was not introduced in order that
the provisions contained in S. 23 should be abrogated
and that is also not the effect of the amendment. The
object of sub-sec. (1-A) was merely to enlarge the right
to apply for divorce and not to make it compulsive that a
petition for divorce presented under sub-sec. (1-A) must
be allowed on a mere proof there was no cohabitation or
restitution for the requisite period. The very language of
S. 23 shows that it governs every proceeding under the
Act and a duty is cast on the Court to decree the relief
sought only if the conditions mentioned in the sub-
section are satisfied, and not otherwise.
A decree for judicial separation passed at the behest of
the wife, cannot be said to relieve the husband of duty to
cohabit and therefore it is incorrect to say that S. 10 (2)
vests right in the husband to get a decree of divorce.
Section 10 (2) provides that where a decree for judicial
separation has been passed it shall no longer be
obligatory for the petitioner to cohabit with the
respondent, but the Court may, on the application by
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petition of either party and on being satisfied of the truth
of the statements made in such petition, rescind the
decree if it considers it just and reasonable to do so. On
a fair reading of the sub-sec. (2) it is clear that the
provision applies to the petitioner on whose application
the decree for judicial separation has been passed. Even
assuming that the provision extends to both petitioner as
well as the respondent it does not vest any absolute right
in the petitioner or the respondent not to make any
attempt for cohabitation with the other party after the
decree for judicial separation has been passed. As the
provision clearly provides the decree for judicial
separation is not final in the sense that it is irreversible;
power is vested in the Court to rescind the decree if it
considers it just and reasonable to do so on an
application by either party. The effect of the decree is
that certain mutual rights and obligations arising from
the marriage are as it were suspended and the rights and
duties prescribed in the decree are substituted therefor.
The decree for judicial separation does not sever or
dissolve the marriage tie which continues to subsist. It
affords an opportunity to the spouse for reconciliation
and re-adjustment. The decree may fall by a conciliation
of the parties in which case the rights of respective
parties which float from the marriage and were
suspended are restored. Therefore the impression that S.
10 (2) vests a right in the petitioner to get the decree of
divorce notwithstanding the fact that he has not made
any attempt for cohabitation with the respondent and has
even acted in a manner to thwart any move for
cohabitation does not flow from a reasonable
interpretation of the statutory provisions.”
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The contention of the learned counsel for the appellant by
placing reliance on the judgment of the Hon’ble Supreme Court is that the
judgment of the Full Bench of this Court, therefore, cannot hold the field,
nor the respondent husband was entitled to decree of divorce in the facts of
the present case as the learned matrimonial Court had granted the decree of
divorce on the presumption that even if the respondent-husband was at
wrong still he was entitled to the decree of divorce in view of the law laid
down by the Full Bench of this Court.
The learned counsel for the appellant also placed reliance on
the judgment of this Court in the case of Rakhi Nautiyal Vs. Mohit
Nautiyal 2007(1) RCR (Civil) 56 wherein this Court was pleased to lay
down that the husband could not be allowed to take advantage of his wrong,
it was held that when a party has not complied with the decree of restitution
of conjugal rights it does not have vested right to get divorce merely on the
ground that it is entitled to divorce on the plea that there is no cohabitation
between the parties even after one year of the passing of a decree of
restitution of conjugal rights.
It may be relevant to mention here that the parties were called
where they agreed to reconcile the matter as the appellant showed her
willingness to go to her matrimonial home from the Court itself. It is not
disputed that thereafter respondent-husband refused to take her along with
him.
Mr. Sanjiv Sharma, learned counsel appearing on behalf of the
respondent, however, contends that the marriage between the parties has
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irretrievably broken down as they are living separately for number of years
and, therefore, the decree of divorce granted in favour of the husband-
respondent be upheld.
The reliance in support of this contention has been placed on
the judgment of the Hon’ble Supreme Court in the case of Naveen Kohli Vs.
Neelu Kohlu 2006(2) R.C.R. (Civil) 290.
The reliance was placed on the judgment of this Court in the
case of Jasbir Kaur @ Pinky Vs. Dr. Harjinder Singh 2008(2) RCR (Civil)
895 to contend that the continuous long separation by wife without reason
amounts to cruelty and it will damage the husband both mentally and
physically. This Court also held that registration of a case under Section
406/498-A IPC against husband and relatives which is found to be false
amounts to cruelty.
On consideration of the matter I find force in the contention
raised by the learned counsel for the appellant.
The judgment in the case of Jasbir Kaur @ Pinky Vs. Dr.
Harjinder Singh (supra) is not even remotely connected with the facts of
the present case as the divorce has been sought by the petitioner under
Section 13(1)(A)(ii) of the Hindu Marriage Act on the ground that the
decree of restitution of conjugal rights was not acted upon for a period of
one year from the date of passing of the decree.
Similarly, the judgment of the Hon’ble Supreme Court in the
case of Naveen Kohli Vs. Neelu Kohlu (supra) can not be of any help to the
respondent at it is well settled law that a party cannot take advantage of his
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own wrong. The divorce was granted by the learned matrimonial Court by
placing reliance on the Hon’ble Full Bench of this Court, wherein it was laid
down that a decree of divorce can be granted merely on showing that the
decree of restitution of conjugal rights did not stand complied with even if
the husband was at wrong.
This finding cannot be sustained in view of the judgment of the
Hon’ble Supreme Court in the case of Hirachand Srinivas Managaonkar
V. Sunanda (supra).
In the present case it is proved that the respondent-husband is
taking advantage of his own wrong in not complying with the decree of
restitution of conjugal rights.
Thus, keeping in view the conditions as envisaged under
Section 23 of the Hindu Marriage Act and keeping in view the fact that the
respondent-husband is seeking to take advantage of his own wrong he
cannot be permitted to seek divorce on the ground of non-compliance of
decree of restitution of Conjugal rights.
For the reasons stated above, this appeal is allowed. The
judgment and decree passed by the learned matrimonial Court is ordered to
be set aside and the application moved by the husband-respondent under
Section 13 of the Hindu Marriage Act is ordered to be dismissed with no
order as to costs.
October 22, 2008 ( VINOD K. SHARMA ) 'sp' JUDGE