SUMITRA Vs. GOBINDA

JUDGEMENT

(1.) The questions that have been referred to me under Clause 36 of the Letters Patent, on a difference of opinion between my Learned brothers Das Ghosh, J. and Ghosh, J., have been formulated by the learned Judges as hereunder :- "1. Does S.10(2) of the Hindu Marriage Act, 1955 impose any liability on the husband to cohabit with the wife, after the wife obtains a decree for judicial separation against the husband and, if so, does the failure of the husband to discharge this obligation constitute a 'wrong' within the meaning of S.23(1)(a) of the Hindu Marriage Act, 1955 ?

(2.) Does failure on the part of the husband to pay alimony to the wife, after the wife obtains a decree for judicial separation against him, constitute any 'wrong', keeping in view the provisions of S.13(2)(iii) of the Act, and if so, does this 'wrong' disentitle the respondent also to get a decree of divorce under S.13(1A) of the Hindu Marriage Act ?" 2. The facts in brief. The wife appellant obtained in 1980 an ex parte decree for judicial separation against the husband-respondent under S.10 of the Hindu Marriage Act. In 1983, the husband has initiated this present matrimonial proceeding, giving rise to this appeal, for dissolution of the marriage under S.13(1A) of the Act on the ground that there has been no resumption of cohabitation as between the parties since the decree for judicial separation in 1980 and the husband has obtained a decree for divorce which has now been assailed by the wife in this appeal.

(3.) Das Ghosh, J., is of the view that as the husband has admittedly taken no steps towards resumption of cohabitation after the wife obtained the decree for judicial separation, the granting of a decree for divorce at his instance and in his favour would be allowing the husband to take advantage of his own "wrong" within the meaning of S.23(1)(a) of the Act. According to Das Ghosh, J., even though the wife who obtained the decree for judicial separation was, in view of S.10(2) of the Act, no longer under any obligation to cohabit with the husband, the latter against whom such decree was passed, was very much under such obligation and he admittedly not having done anything towards the discharge of that obligation, is guilty of such misconduct or "wrong" as would disentitle him from obtaining a decree for divorce under S.13(1A) of the Act in view of S.23(1)(a) thereof Ghosh, J., has, however, held that once a decree for judicial separation was passed, though at the instance of the wife and against the husband, the husband was no longer under any such obligation and is not disentitled from obtaining a decree for divorce on the ground of non-resumption of cohabitation between the parties under S.13(1A) of the Act, even though he has taken no steps towards resumption of cohabitation. In view of this difference of opinion between my learned brothers, I have given the matter my anxious consideration and I would express my respectful concurrence with the view of Ghosh, J. and my equally respectful dissent from the view of Das Ghosh, J., I would extract hereinbelow the relevant provisions of the Hindu Marriage Act, 1955 which are material for my present purpose for the facility of discussions :-