{"id":144646,"date":"2009-02-04T00:00:00","date_gmt":"2009-02-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-ajith-kumar-vs-k-jeeja-sanila-on-4-february-2009"},"modified":"2016-07-03T11:21:59","modified_gmt":"2016-07-03T05:51:59","slug":"m-ajith-kumar-vs-k-jeeja-sanila-on-4-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-ajith-kumar-vs-k-jeeja-sanila-on-4-february-2009","title":{"rendered":"M.Ajith Kumar vs K.Jeeja @ Sanila on 4 February, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
M.Ajith Kumar vs K.Jeeja @ Sanila on 4 February, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nMFA.No. 950 of 2002()\n\n\n1. M.AJITH KUMAR, AGED 41 YEARS,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. K.JEEJA @ SANILA, AGED 31 YEARS,\n                       ...       Respondent\n\n                For Petitioner  :SRI.P.B.SAHASRANAMAN\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice P.R.RAMAN\nThe Hon'ble MR. Justice C.T.RAVIKUMAR\n\n Dated :04\/02\/2009\n\n O R D E R\n                     P.R. RAMAN & C.T. RAVIKUMAR, JJ.\n            ----------------------------------------------------------------\n                            M..F.A.NO. 950 OF 2002\n            ----------------------------------------------------------------\n                   Dated this the 4th day of February, 2009.\n\n                                   JUDGMENT\n<\/pre>\n
Ravikumar, J.\n<\/p>\n<\/p>\n
      The petitioner – husband in O.P. No.50 of 2001 on the file of the<\/p>\n
Family Court, Kozhikode is the appellant herein.                  The said Original<\/p>\n
Petition was filed under Section 13(1A)(ii) of the Hindu Marriage Act,<\/p>\n
1955 (hereinafter referred to as “the Act”) for divorce. The admitted facts<\/p>\n
are as follows:\n<\/p>\n
              The marriage between the appellant and the respondent who<\/p>\n
belong to Hindu Ezhava community was solemnised on 24.5.1991. After<\/p>\n
the marriage, they lived together only for a very short period of two and a<\/p>\n
half months. A male child was born in the wedlock and he is residing with<\/p>\n
the respondent.\n<\/p>\n<\/p>\n
      2.    With respect to what had happened                subsequent to the said<\/p>\n
period of two and a half months, there are conflicting versions by the<\/p>\n
appellant and the respondent. According to the appellant, he left for Gulf<\/p>\n
after the said period and thereafter, the respondent was taken to her house<\/p>\n
for delivery in December, 1991.              When he returned from Gulf in<\/p>\n
December, 1994, the parents of the respondent did not permit her to stay<\/p>\n
M.F.A. NO. 950\/2002                  2<\/span><\/p>\n
with him. In the year 1995, the respondent herein had filed O.P. No.61 of<\/p>\n
1995 before the Family Court, Kozhikode under Section 9 of the Act for<\/p>\n
restitution of conjugal rights. The said Original Petition was allowed on<\/p>\n
14.7.1997 with a direction to resume cohabitation within two months from<\/p>\n
the date of the judgment. In the year 1996, the respondent filed M.C.<\/p>\n
No.109 of 1996 seeking maintenance for the child and that was also<\/p>\n
allowed on mutual consent. Subsequent to the passing of the decree in<\/p>\n
O.P. No. 61 of 1995, the respondent – wife did not resume cohabitation<\/p>\n
despite several attempts on the part of the appellant. The respondent had<\/p>\n
no genuine intention to resume cohabitation and they are residing<\/p>\n
separately for the last 9 1\/2 years. It was with the aforesaid allegations<\/p>\n
that the appellant herein filed O.P. No.50 of 2001 for dissolution of their<\/p>\n
marriage by a decree of divorce.\n<\/p>\n<\/p>\n
       3. The respondent contested the matter contending that it was the<\/p>\n
appellant who stood against the resumption of cohabitation pursuant to the<\/p>\n
decree in O.P. No.61 of 1995.          In the counter affidavit, she had<\/p>\n
specifically expressed her willingness to live with the appellant-petitioner.<\/p>\n
She had also stated therein that after the appellant left for Gulf, she was<\/p>\n
subjected to mental torture by his parents during her stay at his house.<\/p>\n
Considering the aforesaid conflicting versions, the Family Court<\/p>\n
M.F.A. NO. 950\/2002                      3<\/span><\/p>\n
formulated the point as to ‘whether the petitioner is entitled to get a decree<\/p>\n
of divorce’ for consideration.\n<\/p>\n<\/p>\n
      4. The evidence in this case consists of the oral testimonies of<\/p>\n
PW.1 and RW.1. Exts.A1 to A4 were marked on the side of the petitioner.<\/p>\n
The Family Court considered the entitlement of the appellant herein to<\/p>\n
get a decree of divorce under Section 13(1A)(ii) of the Act in the light of<\/p>\n
Section 23(1)(a) of the Act.      In order to appreciate the contentions, it is<\/p>\n
necessary and profitable to refer to the aforesaid provisions of the Act and<\/p>\n
they read as follows:\n<\/p>\n<\/p>\n
             “13(1A) Either party to a marriage, whether
\n             solemnized before or after the commencement of
\n             this Act, may also present a petition for the
\n             dissolution of the marriage by a decree of divorce
\n             on the ground–\n<\/p><\/blockquote>\n
                    (i) xx    xx     xx      xx     xx<\/p>\n<\/blockquote>\n
                    (ii) that there has been no restitution of
\n             conjugal rights as between the parties to the
\n             marriage for a period of one year or upwards
\n             after the passing of a decree for restitution of
\n             conjugal rights in a proceeding to which they
\n             were parties.”\n<\/p><\/blockquote>\n
                    “23. Decree in proceedings.–(1) In any
\n             proceeding under this Act, whether defended or
\n             not, if the court is satisfied that, –\n<\/p><\/blockquote>\n
M.F.A. NO. 950\/2002                    4<\/span><\/p>\n
                    (a) any of the grounds for granting relief
\n             exists and the petitioner except in cases where the
\n             relief is sought by him on the ground specified in
\n             sub-clause (a), sub-clause (b) or sub-clause (c) of
\n             clause (ii) of Section 5 is not in any way taking
\n             advantage of his or her own wrong or disability
\n             for the purpose of such relief.”<\/p><\/blockquote>\n
       5. Evidently, the Original Petition was filed after the stipulated<\/p>\n
period under Section 13(1A)(ii) of the Act. To sustain the ground for<\/p>\n
dissolution of marriage by a decree of divorce and to establish that he is<\/p>\n
entitled to get divorce under Section 13(1A)(ii) of the Act notwithstanding<\/p>\n
Section 23(1)(a) of the Act, he relied on various decisions. His attempt<\/p>\n
was to canvass the position that in order to be a ‘wrong’ within the<\/p>\n
meaning of Section 23(1)(a) of the Act so as to disentitle for a decree of<\/p>\n
divorce, the conduct alleged has to be something more than a mere<\/p>\n
disinclination to agree to an offer of reunion. According to him, it must<\/p>\n
be a misconduct serious enough to justify the denial of the relief. To<\/p>\n
buttress the said point, the appellant – petitioner relied on the decisions of<\/p>\n
the Honourable Apex Court reported in Dharmendra Kumar v. Usha<\/p>\n
Kumar<\/a> (1977) 4 SCC 12 and Saroj Rani v. Sudarshan Kumar<\/p>\n
Chadha<\/a> (1984) 4 SCC 90. The appellant has also relied on the decision<\/p>\n
of this Court in Radhakumari v. Dr. K.M.K. Nair<\/a> reported in AIR<\/p>\n
1988 Kerala 235. In that decision, it was held that the failure on the part<\/p>\n
of the husband in not enforcing the decree for restitution of conjugal rights<\/p>\n
M.F.A. NO. 950\/2002                    5<\/span><\/p>\n
will not disentitle him from getting a decree for divorce under Section 13<\/p>\n
(1A)(ii) of the Act if there was no resumption of cohabitation between<\/p>\n
the parties for a period of one year or more after the passing of the decree<\/p>\n
for restitution of conjugal rights. It was further held therein that there was<\/p>\n
no material for evidencing any conduct on the part of the appellant-<\/p>\n
husband therein which would amount to a wrong within the meaning of<\/p>\n
Section 23(1)(a) of the Act disentitling him to the relief of divorce.<\/p>\n
      6. While considering the scope of Section 13(1A) of the Act, the<\/p>\n
Family Court referred to the decision of the Honourable Apex Court<\/p>\n
reported in Hirachand Srinivas Managaonkar v. Sunanda, A.I.R.<\/a> 2001<\/p>\n
S.C. 1285. It was held therein that the section does not provide that once<\/p>\n
the applicant makes an application alleging fulfillment of one of the<\/p>\n
conditions specified therein, the court has no alternative but to grant a<\/p>\n
decree of divorce and that such an interpretation of the section will run<\/p>\n
counter to the provisions of Section 23(1)(a) or (b) of the Act.           The<\/p>\n
decision in Dharmendra Kumar v. Usha Kumar<\/a> was also referred.               It<\/p>\n
was held that the said decision should not be read to be laying a general<\/p>\n
principle that the petitioner in an application for divorce is entitle to the<\/p>\n
relief merely on establishing      the existence of the ground pleaded by<\/p>\n
him\/her in support of the relief.\n<\/p>\n
M.F.A. NO. 950\/2002                    6<\/span><\/p>\n
       7. After considering the rival contentions, relying on the decisions,<\/p>\n
the Family Court went on to consider the entitlement of the appellant –<\/p>\n
petitioner. Ext.A1 is the order passed in O.P. No.61 of 1995 filed by the<\/p>\n
respondent – wife for restitution of conjugal rights.     The Family Court<\/p>\n
held that it is evident from Ext.A1 that the appellant – petitioner had no<\/p>\n
intention to resume cohabitation lest he would not have resisted granting<\/p>\n
of the prayer in O.P. No.61 of 1995. In O.P. No. 61 of 1995, the appellant<\/p>\n
had produced five letters sent by him. The Family Court found that at<\/p>\n
page 7 of Ext.A1 order, an observation was made to the effect that the<\/p>\n
appellant had sent the said letters to create evidence. Taking into account<\/p>\n
the said circumstances, the Family Court held that the appellant had no<\/p>\n
intention to resume cohabitation. The fact that he resisted O.P. No.61 of<\/p>\n
1995 was also taken into consideration by the Family Court.       Further, it<\/p>\n
was found that the respondent herein was always ready and willing for a<\/p>\n
reunion.   After such consideration, the Family Court found that the<\/p>\n
appellant had no intention to resume cohabitation and hence he is not<\/p>\n
entitled to claim a decree under Section 13(1A)(ii) of the Act and<\/p>\n
dismissed the Original Petition.\n<\/p>\n<\/p>\n
       8. A careful consideration of the decisions mentioned above would<\/p>\n
make it abundantly clear that the efflux of time stipulated under Section 13<\/p>\n
M.F.A. NO. 950\/2002                      7<\/span><\/p>\n
(1A)(ii) of the Act constitutes only satisfaction of the ground for relief and<\/p>\n
the court can still deny the relief if it is satisfied that the appellant –<\/p>\n
petitioner is taking advantage of his or her own wrong by virtue of Section<\/p>\n
23(1)(a) of the Act.     The word ‘satisfied’ used in the section has to be<\/p>\n
construed as ‘satisfied on the basis of the legal evidence’ adduced before<\/p>\n
the court that the petitioner is not in any way taking advantage of his or her<\/p>\n
own wrong or disability for the purpose of the Act and not merely on<\/p>\n
probabilities. It must be on the matter on record and based on evidence.<\/p>\n
Certain aspects of law are also to be borne in mind while considering the<\/p>\n
question as to whether a party who fails to comply with the decree for<\/p>\n
restitution of conjugal rights could be stated to be taking advantage of his<\/p>\n
or her own wrong and should he or she be denied the decree for divorce on<\/p>\n
that ground. In that regard, it is to be noted that mere non compliance of<\/p>\n
the decree for restitution of conjugal rights per se would not amount to<\/p>\n
taking advantage of one’s own wrong.        In other words, mere reluctance<\/p>\n
on the part of one of the spouses in resuming cohabitation cannot be<\/p>\n
construed as a ‘wrong’ so as to disentitle him or her to get a decree of<\/p>\n
divorce under Section 13(1A)(ii) of the Act notwithstanding Section 23(1)<\/p>\n
(a) of the Act. It leads to the conclusion that even on satisfaction of the<\/p>\n
ground for dissolution of marriage by a decree of divorce under Section 13<\/p>\n
(1A)(ii) of the Act, the entitlement to the relief depends on satisfaction of<\/p>\n
M.F.A. NO. 950\/2002                      8<\/span><\/p>\n
the court that the petitioner is not in any way taking advantage of his or her<\/p>\n
own wrong or disability for the purpose of such relief. There can be no<\/p>\n
doubt that in all cases other than those excluded from the operation of the<\/p>\n
provisions under Section 23(1)(a) of the Act, the court is under an<\/p>\n
obligation to satisfy itself based on the evidence adduced before it that the<\/p>\n
petitioner is not taking advantage of his or her own wrong or disability for<\/p>\n
the purpose of such relief.\n<\/p>\n<\/p>\n
       9. Now, the question is whether the Family Court has discharged<\/p>\n
the said obligation under Section 23(1)(a) of the Act while denying the<\/p>\n
relief to the petitioner. A careful analysis of the order of the court below<\/p>\n
in the light of the aforesaid discussions would reveal that the court below<\/p>\n
has not properly addressed such relevant questions for the purpose of<\/p>\n
arriving at a conclusion in terms of Section 23(1)(a) of the Act.<\/p>\n
Admittedly, in this case, it was the respondent who obtained a decree for<\/p>\n
restitution of conjugal rights. Of course, she has deposed that she was<\/p>\n
always ready and willing for a reunion. Reluctance on the part of the<\/p>\n
appellant – husband is also alleged. In such circumstances, the court<\/p>\n
below should have considered the question as to whether there was any<\/p>\n
obstacle for the wife to join the husband, who could be regarded as the<\/p>\n
‘wrong doer’ for the purpose of Section 23(1)(a) of the Act and if it was<\/p>\n
M.F.A. NO. 950\/2002                    9<\/span><\/p>\n
the appellant\/petitioner, then whether he was attempting to take advantage<\/p>\n
of his own wrong etc. In short, without identifying the wrong doer,<\/p>\n
especially in view of the allegations and counter allegations, as made in<\/p>\n
this case, it would not be possible to properly consider the question as to<\/p>\n
whether the appellant – petitioner is taking advantage of his or her own<\/p>\n
wrong. In view of the decisions of the Honourable Apex Court referred<\/p>\n
above, the question whether the conduct on his part would amount to a<\/p>\n
wrong within the meaning of Section 23(1)(a) of the Act disentitling him<\/p>\n
to the relief of divorce, also should have been considered.<\/p>\n
       10. In this case, Family Court after referring to the observation<\/p>\n
made in O.P. No.61 of 1995 based on Exts.A1 to A5 entered in to the<\/p>\n
finding that the appellant had no intention to resume cohabitation. The<\/p>\n
action on the part of the appellant in not pursuing O.P. No.561 of 1997<\/p>\n
filed by him for divorce was also taken to his detriment without assigning<\/p>\n
any reason. It is true, the respondent had deposed that she was always<\/p>\n
ready and willing for a reunion. It is evident that the Family Court has<\/p>\n
denied a decree of divorce to the appellant\/petitioner under Section 13<\/p>\n
(1A)(ii) of the Act on the ground that he had no intention to resume<\/p>\n
cohabitation. However, it is obvious that before holding the petitioner as<\/p>\n
disentitled by virtue of Section 23(1)(a) of the Act, the Family Court has<\/p>\n
M.F.A. NO. 950\/2002                   10<\/span><\/p>\n
not discharged the obligation. Before observing that the petitioner cannot<\/p>\n
take advantage of his own wrong, the Family Court should have<\/p>\n
considered the question as to whether he is the wrong doer and if so,<\/p>\n
whether the conduct on his part would amount to a wrong within the<\/p>\n
meaning of Section 23(1)(a) of the Act so as to disentitle him to the relief<\/p>\n
of divorce.    It is a fact that the appellant and respondent were living<\/p>\n
separately for a considerably long period and that they had lived together<\/p>\n
only for a very short period of 2 1\/2 months.\n<\/p>\n<\/p>\n
      11. In the circumstances, we are of the view that in the interest of<\/p>\n
justice, the matter has to be remanded to the Family Court for being<\/p>\n
disposed of in accordance with law. Accordingly, we set aside the order<\/p>\n
passed by the Family Court, Kozhikode dated 17.1.2002 in O.P. No.50 of<\/p>\n
2001 and remand the case for disposal in accordance with law.<\/p>\n
      The appeal is disposed of as above.\n<\/p>\n<\/p>\n
                                             (P.R. RAMAN)
\n                                                JUDGE<\/p>\n
                                             (C.T. RAVIKUMAR)
\n                                                  JUDGE
\nsp\/<\/p>\n
M.F.A. NO. 950\/2002    11<\/span><\/p>\n
                                C.R.\n<\/p>\n
\n                           P.R. RAMAN &
\n                           C.T. RAVIKUMAR, JJ.\n<\/p>\n
                           M.F.A.NO. 950\/2002<\/p>\n
                                JUDGMENT<\/p>\n
                           4th February, 2009.\n<\/p>\n
M.F.A. NO. 950\/2002    12<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court M.Ajith Kumar vs K.Jeeja @ Sanila on 4 February, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM MFA.No. 950 of 2002() 1. M.AJITH KUMAR, AGED 41 YEARS, … Petitioner Vs 1. K.JEEJA @ SANILA, AGED 31 YEARS, … Respondent For Petitioner :SRI.P.B.SAHASRANAMAN For Respondent : No Appearance The Hon’ble MR. Justice […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-144646","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nM.Ajith Kumar vs K.Jeeja @ Sanila on 4 February, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-ajith-kumar-vs-k-jeeja-sanila-on-4-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.Ajith Kumar vs K.Jeeja @ Sanila on 4 February, 2009 - 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