T SRINIVASAN Vs. T VARALAKSHMI

JUDGEMENT

(1.) THESE Appeals coming on for bearing on Thursday the 5th Wednesday the 11th and Thursday the 19th day of April, 1990 in the presence of the respective Advocates, and having stood over for consideration till this day, the court delivered the following Judgment:?

(2.) THESE two appeals by the husband arose out of a common judgment passed by the VIII Additional Judge, City Civil Court, Madras, in A.S No. 49 of 1981 and C.M.A. No. 33 of 1981.

(3.) LET us first consider the decisions relied on by the learned consuel for the appellant and see how far they are helpful to the case of the appellant, The learned counsel first cited the decision in Dharmendra Kumar v. Usha Kumar 1 . That was a case where the wife filed a petition under S. 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. On the expiry of two years, she filed a petition under S. 13(1-A) (ii) of the Act for dissolution of marriage and for a decree of divorce. The said application was resisted by the husband on the ground that there has been no restitution of conjugal rights between the parties after passing of the decree in the earlier proceedings. Further, he made attempt to comply with the decree by writing several letters to the petitioner and otherwise inviting her to live with him. But the petitioner refused to live with him and never replied to his letters. He contended that she now wants to make capital out of her own wrong. In the circumstances it was held as follows: ?In order to be a ?Wrong? within the meaning of S. 23(1A), the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled.? In Bimle Devi v. Singh Raj 1 , it was held: ?The provisions of S. 23(1)(a) cannot be invoked to refuse the relief under S. 13(1-9)(ii) on the ground of non-compliance of a decree of restitution of conjugal rights wnsre 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 provision in the Code of Civil Procedure by whicn the physical custody of the spouse, who has suffered the decree, can be made over to 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 invoice the provisions of S. 23(1) (a) so as to plead that the said spouse is taking advantage of hisor her own wrong.? In Smt. Salna Devi v. Purushotam Giri 2 , it has been held that S. 23 and 13 (1-A) of the Act have to be harmoniously construed and unless after the earlier decree, it be established that thereafter any circumstances had occurred which would be a wrong under S. 3 of the Act, relief can oe obtained under S. 13 (1-A) of the Act even by a wrong-doer, on mere lapse of the statutory period. The learned counsel for the appellant also relied on the decision in Madhukar v. Saral 3 . That was a case where a decree for judicial separation was passed in favour of the respondent. After a lapse of two years, the petitioner filed a petition under S. 13(1-A) of the Hindu Marriage Act praying for a decree of divorce on the ground that there has been no resumption of cohabitation as between the parties. It was held that ?in granting relief under S. 13 (1-A) the Court will and must take into consideration S. 23(1) and consider the conduct of the petitioner subsequent to the passing of the decree for judicial separation or restitution of conjugal rights and not grant relief to a party who is taking advantage of his own wrong.? But, it was observed ?It has however no reference to remedying the wrong which led to the decree for judicial separation or restitution of conjugal rights.? On the facts of the said case, it was held. ??The petitioner in such a case is under no obligation to assure the other party that his previous cruelty would cease and that he would treat her well or to ask her to come and stay with him. A fortiori there cannot be any question of his being in the wrong by not carrying out such obligation such as to disentitle him to the relief of divorce.? It has to be noted that in the case of a decree for judicial separation, none of the spouses is bound to cohabitate with the other, as by reason of the said decree, they were prevented from doing so. Therefore, there was no desertion by one party after the judicial separation. No doubt after the decree for judicial separation, the parties may make an attempt of reconciliation between them. But, there is no obligation to make such an attempt. Hence, in such circumstances, this decision is not helpful The lower court considered the decision of the Bombay High Court in Madhukar v. Saral 3 , for the proposition that in granting relief under S. 13(1-A) the Court must take into consideration under S. 23(1) and consider the conduct of the petitioner subsequent to the passing of the decree for judicial separation or restitution of conjugal rights and not grant relief to a party who is taking advantage of his own wrong. The decision of our High Court in Soundrammal v. Sundara Mahalinga Nadar 4 was referred by the lower appellate court; This Court came to the conclusion in the above quoted case: ?After deep consideration, in my view, the claim of made, and which found acceptance in the Full Bench decision of the Punjab and Haryana High Court and in the decision of the Delhi High Court, that the law on the aspect of divorce has been liberalised so as to facilitate even the defaulting spouse/wrong-doer husband to secure divorce, cannot be acceded to.? That was a case where the husband filed the petition under S. 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights and it was ailowed. The petition filed by the wife for restitution of conjugal rights was later onwithdrawn. The wife filed another O.P. for a declaration that the marriage is null and void or in the alternative for judicial separation. That petition was allowed and permenent alimony at the rate of Rs. 25 per mensem was ordered. After the expiry of the statutory peried of two years, the respondent filed O.P. for dissolution of marriage under S. 13(1-A) of the Hindu Marriage Act. The said application was resisted by the wife on the ground that the husband cannot take advantage of his own wrong. He had with a wicked intention married another woman and lived with her and the restitution of conjugal rights asked for by him was a pretence and a farce, and that it is only the respondent-husband who made it impossible for her to lead a married life and he being in the wrong, he cannot allege his own wrong and wickedness in living with another woman as the basis for securing relief in the petition, Further, he had not paid maintenance so far. The trial court dismissed the petition on the ground that the respondent cannot take advantage of his own mistake while the appellate court allowed the appeal. This Court elaborately considered the earlier decisions of the Supreme Court and Full Bench of the Punjab & Haryana High Court and decisions of the Delhi High Court and other High Courts and held as follows:? ??The points which have come up for consideration before the High Courts of Punjab and Haryana, and Delhi in the decisions above referred to, can be resolved by holding that the two amending'Acts have now enabled defaulting spouses to seek for the relief of divorce, provided he or she satisfies the Court, that S. 23 of the Act is not attracted since non-compliance of a decree for judicial separation or restitution of conjugal rights is not a ?wrong? within the meaning of S 23(1)(a) of the Act. Thus, in a ll those instances in which S 23 is not attracted, the two amending acts hare enabled even defaulting spouses to get relief under S. 13(1-A) of the Act. The amending Acts (Central Acts XLIV of 1954 and LXVIII of 1976) have not enabled wrongdoers who would come within the ambit of S. 23(1) (a) of the Act to get the relief of divorce on the plea that liberalisation had been brought about towards divorce to such an unlimited extent. In my view, the amending Acts XLIV of 1954 and LXVIII of 1976 have not ena bled all sorts of defaulting spouses to get relief for divorce, which was not at all available earlier, but it would be available only in such of those instances wherein S. 23 of the Act cannot be applied. Hence, I hold that the respondent herein, a continuing wrongdoer, cannot plead that, after the said two amending Acts, S. 23(1)(a) cannot be invoked against him, and therefore the decision of the lower appellate Court is hereby set aside.? I am in entire agreement with the view expressed by the learned Judge. The learned counsel for the respondent drew my attention to the decision of Division Bench in Geetha Lakshmi v. G.V.N.K. Sarveswara Rao 1 , where also the learned Judges after considering the decision of the Supreme Court as well as the Full Bench decisions of the Punjab and Haryana held as follows:? ?Before and after the amendment of the Hindu Marriage Act, the provisions of S 13 are subject to provisions of S. 23 (1) (a) of the Act. The amendment to S. 13 must be limited to the extent to which the amendments have been made. They cannot be given an extended operation. S. 13 cannot be taken out of the limits of S. 23(1) (a). If it were otherwise, the Parliament would have added the words ?notwithstanding anything to the contrary? in S. 23(1)(a) or would have been suitably amended S. 23(1)(a) itself, as it was well aware of the provisions of S. 23 (1) (a) when S. 13 was amended. A decree for restitution of conjugal rights was obtained by the wife under S 9 of the Act on the ground that the husband had without reasonable cause withdrawn from her society. A decree for resitiution of conjugal rights was granted to the wife. After the decree, the husband not only, not complied with the decree, but did positive acts by ill-treating her and finally drove her away from the house. It was not a case of mere non-compliance of the decree, but fresh positive acts of wrong. In such a case, the husband was not entitled to the relief under S 13(1A) of the Act.? Applying the ratio in the abovesaid case to the facts of this case, it is seen that the marriage between the appellant and the respondent took place on 31 -1-1975 and that the appellant and the respondent lived together in the house of the respondent for 2 or 3 days and thereafter they lived in the house of the appellant for 10 days. According to the respondent wife, the appellant husband was pressing her to get gifts from her parents' house and so she left the appellant's house on 13-2 1975. She could not return back to the house of the appellant in view of the demand. It is seen that though the wife left the house of the husband on 13-2-1975, the husband was keeping quiet till July, 1975. The case of the wife is that she was always ready and willing to live with her husband and that it was only the appellant husband who did not allow her to live with him without getting gifts from her father. To a notice issued by the husband under Ex.A-1 on 28 7-1975, the wife immediately sent a reply Ex.A-2 denying the allegations made in Ex. A-1 that she has withdrawn from the society of her husband without reasonable cause. But, on the other hand, she has specifically stated that she was always anxious to live with her husband and she never thought of living away from the respondent. In spite of the reply, the husband filed O.P. No. 420 of 1975 for restitution of conjugal rights. In the counter, which has been marked as Ex.A-3, the wife has specifically stated that she is always ready and willing to live with the husband, that she never thought of living alone and that she is willing to join her husband. Thereupon the said petition was allowed on 21-2-1977, Within a few days, namely, on 8-3-1977 the respondent-wife sent a notice to the husband appellant wherein she has stated that she is willing to join her husband and lead a happy life and requested him to send some female relations to take her back to his house. Though the husband received the notice Ex.A-4, he did not send any reply. Again, another notice was sent on 25-5-1977 to the effect that the respondent sent one Rajabadar, who is related to the husband on 19-5-1977 to inform the appellant about her coming to the appellant's house on 23-5-1977. Bat, her husband informed the emissary that he would lock up the house and go away elsewhere. In spite of the same, the wife went to the house on 23-5-1977 accompanied by her grandfather, grand-mother and others to join her husband. The husband turned the wife away and refused to allow her to enter the house. He did not also send any reply to Ex.A-5 nonce. The wife sent ano ther notice Ex.A-6 dated 13-8-1977 stating that her husband did not allow her to enter the house and deserted her without any reasonable cause and claimed maintenance, to which he sent a reply. Ex.A-8 is the rejoinder of the wife wherein she has reiterated her earlier stand that she was ready and willing to join her husband but the husband was never willing to take her back and on the other hand, he wantonly refused to take her back and thereby deserted her. The respondent also went to the nearest police station and requested the help of the police for joining her husband. Though the Inspector sent for the appellant and asked him to live with the respondent in his house, he refused to take her and gave in writing to the effect that he would not take her back to his house on any account. The wife had to file a suit for maintenance on 8-11-1977 within a period of one year. The husband did not deny these facts. Besides examining herself as P.W.1, the respondent-wife examined her brother-in-law as P.W 2 in support of her contention. Both the courts have concurrently found that it is only the husband who deserted his wife without probable and reasonable cause and the wife is entitled to claim maintenance. Further, the husband cannot take advantage of his own wrong within the meaning of S. 23 (1)(a) of the Hindu Marriage Act and in view of his conduct in filing the petition for restitution of conjugal rights and subsequently not allowing her to enter into the house and join him and provide maintenance and driving her away, he is not entitled to the relief of dissolution under S. 13 (1. A) of the Hindu Marriage Act. It is also worthwhile to note that the petition for dissolution of marriage under S. 13(1. A) was filed during the pendency of the maintenance proceedings instituted by the wife and also long after the institution of the said proceedings, wherein it is alleged that the appellant wilfully neglected to maintain her and consequently deserted her without probable and reasonable cause and inspite of repeated requestes and notices. The above conduct of the appellant is also relevant in deciding the question of ?wrong? as contemplated under S. 23 (1-A) of the Act. It is not a case of mere failure to render conjugal rights but something more and it is a case of misconduct serious enough so as to justify negativing the claim for dissolution of marriage. As rightly observed by the learned counsel for the respondent, i t is clear from the materials available in the case that the appellant has got the decree for restitution of conjugal rights only to see that he, gets a further decree for divorce. The finding of both the courts be ow is that the husband obtained the decree for res itution of conjugal rights, not to act as per the decree, and on the other band, from the various acts attributed to him, it is clear that he deserted the wife without reasonable and probable cause, and as such, the wife was granted a decree for separate maintenance and in spite of her attempts to join her husband, her husband refused to allow her to enter the house and on the other hand, he turned out her request and her relations and drove her away. As observed by the courts below, it is not mere non-compliance of decree, but it is an act of positive wrong on the part of the husband and in view of S. 23 (1-A), he is not entitled to the relief under S. 13(1-A). Hence, I answer substantial questions of law 1 to 3 in C.M.S.A. 39/81 in favour of the respondent and against the appellant. As rightly observed by the learned counsel for the respondent-wife, in view of the findings on substantial questions of law and in view of the concurrent findings of both the courts below that the appellant-husband deserted the respondent-wife without reasonable and probable cause and the wife is entitled to maintenance and in view of the fact that the concurrent finding with regard to liability as well as quantum have not been disputed in the appeal, I find that the substantial questions 1 to 3 in the second appeal S.A. 2237/81 are answered in favour of the respondeat and against the appellant.