N VARALAKSHMI Vs. N V HANUMANTHA RAO

JUDGEMENT

(1.) The petitioner - husband filed O. P. No. 47 of 1965 against the respondent - wife for judicial separation on the ground that the respondent wife had any reasonable cause deserted him. It was decided on 2nd Dec. 1966 and the decree for judicial separation was passed. Two years thereafter elapsed and on 9-12-1968 the present petition was filed by the petitioner husband for divorce. There was no resumption of cohabitation between the parties. The learned trial Judge allowed the petition and granted to the petitioner husband the decree for divorce. In this petition the respondent - wife filed an interlocutory application praying for maintenance under S. 25 (1) of the Hindu Marriage Act, 1955. That claim made by the respondent - wife was in view of her conduct, rejected by the learned trial Judge.

(2.) It is that decree which is challenged by the respondent - wife in this appeal. Mr. Kulkarni, who appears for the wife, has contended that she has made attempts at resumption of cohabitation and that the husband had thwarted all those attempts. Therefore, according to him, the husband was entitled to a decree for divorce. The wife has led the evidence of two witnesses besides deposing herself as a witness. She has also produced seven letters in support of her case. The learned trial Judge has disbelieved the evidence of the wife and recorded the conclusion that there was no resumption of cohabitation between the parties. Mr. Kulkarni has however argued that if the party against whom a decree for judicial separation has been passed makes an attempt at resumption of cohabitation and if the party who has obtained the decree for judicial separation thwarts that attempt then the party in whose favour the decree has been passed is not entitled to a decree for divorce. We are unable to agree with this contention raised by Mr. Kulkarni. The facts of the case show that the petitioner - husband had obtained the decree for judicial separation. He was, therefore, under the orders of the court entitled to live separately from his wife.

(3.) Now if, during this prescribed period, the wife makes an attempt to resume cohabitation against the will of her husband and if the husband thwarts that attempt can it be said that the decree for judicial separation obtained by the husband is rendered nugatory ? Now the husband is entitled to live separately from his wife under the orders of the Court and if during the period of two years as contemplated by the Act the wife makes an attempt to resume cohabitation against the will of the husband, then the decree which the husband had obtained would not be nullified. That decree cannot be nullified by a unilateral act of one of the parties. Secondly it is quite probable that in order to nullify the decree the spouse against whom the decree has been passed may make an attempt at resumption of cohabitation and thereafter withdraw form the society of the other spouse. If such a mischievous move is made by the spouse against whom the decree has been passed, will the decree for judicial separation be rendered nugatory and will the other spouse be required to institute fresh proceedings for obtaining a fresh decree for judicial separation ? Such a situation, in our opinion, is inconceivable. The parliament, when it enacted the Hindu Marriage Act, in our opinion, did not contemplate such a situation. We are, therefore, of the opinion that within the meaning of sub-sec. (1-A) of S. 13 of the Hindu Marriage Act resumption of cohabitation between the parties after decree for judicial separation has been passed is resumption of cohabitation by the meeting of the minds, by volition of both the parties or by reconciliation. Resumption of cohabitation within the meaning of S. 13 (1-A) is not a unilateral attempt made by one of the one of the spouses against the will of the other to resume cohabitation. To take such a view of S. 13 (1-A) is to introduce into that section a number of mischiefs which the parliament did not contemplate. Therefore, though the husband, who obtained the decree for judicial separation might be morally wrong in not resuming cohabitation when the wife wanted it and thereby wanted to bring about reconciliation still the law entitled him to resist the attempts of his wife to resume cohabitation. Therefore, in any view of the matter the husband was entitled to decree for divorce in as much as there was no resumption of cohabitation by volition of both the parties within two years after the decree for judicial separation was passed. The learned Judge was, therefore, justified in passing the decree for divorce and we uphold it.