CHITRA SENGUPTA Vs. DHRUBA JYOTI SENGUPTA

JUDGEMENT

(1.) In this appeal by the defendant against a decree of divorce on the ground stated in Section 13(1A)(ii) of the Hindu Marriage Act, it has been urged on behalf of the appellant that the suit, having been brought by the respondent before the expiry of the statutory period of one year contemplated by the aforesaid section, was premature and further, looking to the provisions of Section 23(1)(a), no relief should have been granted in his favour as he was taking advantage of his own wrong. In order to substantiate the allegation of wrong conduct of the respondent, an application for production of additional evidence under Order 41 Rule 27 Civil Procedure Code was also filed.

(2.) To develop the first point, the learned Advocate for the appellant has argued that although the suit for divorce was instituted one year after the date on which the decree for restitution of conjugal rights was granted, still the suit should be regarded as premature because the evidence disclosed that the respondent came to know of the decree within one year of a date immediately preceding the institution by him of the suit for divorce. The whole idea behind the provision on requiring a spouse to wait for one year after passing of the decree for restitution of conjugal rights, according to the learned Advocate for the appellant, was to give an opportunity to the parties to obey the decree, and, therefore, the period of one year should be counted not from the date of the decree but from the date on which the parties had knowledge about it. This argument is liable to be rejected as without any merit. Section 13(1A)(ii) of the Act lays down in unambiguous terms that the period of one year is to be computed from the date of passing of the decree for restitution of conjugal rights and, therefore, the argument of the learned advocate for the appellant cannot be accepted save by deleting few words from the section and introducing some other words in place thereof, which cannot be permitted by any rule of interpretation of a statute. If really the intention of the legislature was that the period of one year should be counted from the date of knowledge of the decree, nothing prevented it to make appropriate provision in this regard by using suitable language but instead the legislature in its wisdom has specifically provided the date of passing of the decree for restitution of conjugal rights as the starting point for counting the period of one year. Moreover it does not appear that the case was contested on this footing as no defence was taken in the written statement that the suit was liable to be dismissed as premature having been brought within one year from the date on which the respondent acquired knowledge of the decree for restitution of conjugal rights. The contention that the evidence on record indicated that the respondent came to know of the decree for restitution of conjugal rights within one year from the date of institution of suit for divorce is also not acceptable. The learned Advocate for the appellant has pointed out the evidence of the present respondent before the learned trial Judge to the effect that he had seen the exparte decree in the suit for restitution of conjugal rights within last one or one and a half year. This evidence was recorded by the learned Judge on the 19th November, 1985 and, therefore, according to the learned advocate for the appellant the present respondent came to know of the exparte decree for restitution of conjugal rights in or about the month of May 1984 at the earliest. This can never be true because it is on the record that the suit for divorce was instituted sometime in February 1984. Further the respondent had also deposed before the learned Judge that or 23-12-82 the suit for restitution or conjugal rights was decreed exparte and that he was informed about it by his lawyer. Therefore, although he might have seen the exparte decree within the last one year or one and half year as deposed by him on 19-11-85, still it cannot be said that he had no information about it before he had actually seen the same. Thus neither on fact nor on law the contention that the suit was liable to be dismissed having been brought before the expiry of the statutory period of one year can be sustained.

(3.) Regarding the point that no relief should have been granted to the respondent as he was taking advantage of his own wrong, the learned Advocate for the appellant has stated that the respondent was guilty of committing as many as three wrongs viz. (1) he had made false allegations against the appellant about her illicit intimacy with one Babu Sen, (2) that the respondent himself was living with an European lady in London and (3) he had always secreted his address and thereby prevented the appellant to persuade him to obey the decree. Now, a plain perusal of Section 23(1)(a) leaves no manner of doubt that relief under the Act should be refused if the petitioner was found to take advantage of his or her own wrong which must have been committed after the decree for restitution of the conjugal rights was passed and before the suit for divorce was brought. If any authority is needed in this connection reference may be made to a decision of Delhi High Court in Smt. Gajna Devi v. Purshottam Giri. In the instant case it appears from the application filed by the appellant for production of additional evidence under Order 41 Rule 27 C.P. Code duly supported by an affidavit that the present respondent had alleged in the written statement filed by him in the suit for restitution of conjugal rights that the present appellant had illicit intimacy with Babu Sen. Therefore even if such conduct of the respondent is regarded as a wrong, it cannot stand in the way of granting relief to him in the suit for divorce. The same application affirmed on the 9th September 1987 also discloses that the present appellant-recently came to know about the respondent's wrongful co-habitation with an European woman in London. Therefore, even if this allegation is accepted as true it could at best prove that the respondent had committed a wrong, if at all, only after the suit for divorce was decreed on he 19th February, 1986 and as such no notice of it could be taken to refuse relief in the suit. The third wrong alleged to have been committed by the respondent was that he had all along secreted his residential address and thereby prevented the appellant from persuading him to obey the decree. In substance this is another way of saying that the respondent stayed away and declined to comply with the decree for restitution of conjugal rights. An answer to this contention is to be found in the decision of the Supreme Court in Dharmendra Kumar v. Usha Kumar, A.I.R. 1977 S.C. 2219, in which it has been held by their Lordships that in order to be a wrong within the meaning of Section 23(1)(a) the alleged conduct must be something more than a mere disinclination to agree to an offer of re-union. Therefore even assuming that the respondent had stayed away from the proceeding for restitution of conjugal rights and secreted his address, which is of course denied by him, it cannot constitute a ground for refusing a decree for divorce. It must also be noted in this connection that in the written statement filed by the appellant in the suit for divorce she never took any plea specifically about the wrongs said to have been committed by the respondent but made just an omnibus statement that the respondent could not take advantage of his own wrong. Therefore, the case sought to be made out by the appellant that the suit was barred by the provision of Section 23(1)(a) of the Act is liable to be rejected also on ground of inadequate pleading.