Madras High Court
M.P.Nalini vs R.Karthikeyan on 11 February, 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.02.2013 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Civil Miscellaneous Second Appeal No.42 of 2012 and M.P.No.1 of 2012 M.P.Nalini .. Appellant -Versus- R.Karthikeyan .. Respondent Appeal filed under Section 28 of The Hindu Marriages Act r/w Section 100 of CPC, praying to set aside the Judgement and Decree dated 17.02.20122 passed in C.M.A.No.27 of 2010 on the file of the learned District Judge, The Nilgiris at Udhagamandalam, reversing the fair order and decretal order dated 16.06.2010 passed in H.M.O.P.No.34 of 2007 on the file of the learned Subordinate Judge, Udhagamandalam, The Nilgiris District. For Appellant : Mr.G.Sankar For Respondent : Mrs.Pushpa Sathyanarayana Amicus Curiae : Mr.N.Anand Venkatesh ORDER
The appellant is the wife of the respondent. They are Hindus. The marriage between them was solemnized on 14.02.2001. After the marriage, there arose dispute between them. The appellant allegedly deserted the respondent and started living separately. On these allegations, the respondent filed H.M.O.P.No.24 of 2004 on the file of the learned Subordinate Judge, Udhagamandalam, seeking restitution of conjugal rights. Accordingly, the learned Subordinate Judge, passed a decree for restitution of conjugal rights on 30.12.2004. Challenging the same, the appellant filed an appeal in C.M.A.No.12 of 2005 before the learned District Judge, The Nilgiris District at Udhagamandalam. After having considered the said appeal and after having heard the parties, the learned District Judge, by judgement and decree dated 24.11.2005, dismissed the said appeal thereby confirming the decree for restitution of conjugal rights granted by the trial court. Thus, the said decree and judgement of the trial court became final on 24.11.2005.
2. After the passing of the said decree, the appellant did not resume cohabitation with the respondent in obedience of the said decree. As per Section 13 (1-A) (ii) of The Hindu Marriage Act [hereinafter referred to as The Act], according to the respondent, he is entitled for divorce on the said ground. Therefore, he filed H.M.O.P.No.34 of 2007 before the learned Subordinate Judge, Udhagamandalam, under Section 13(1-A) (ii) of the Act seeking divorce. The matter was opposed by the appellant herein by filing a counter. On full trial, the learned Subordinate Judge, by order dated 16.06.2010, dismissed the said Original Petition. As against the same, the respondent filed an appeal in C.M.A.No.27 of 2010 before the learned District Judge, The Nilgiris District at Udhagamandalam. By decree and judgement, dated 17.02.2012, the learned District Judge allowed the appeal, reversed the fair and decretal order of the trial court and granted divorce. Aggrieved over the same, the appellant is before this Court with this civil miscellaneous second appeal.
3. I have heard the learned counsel on either side and also perused the records carefully.
4. A perusal of the records of the trial court would go to show that the trial court dismissed H.M.O.P.No.34 of 2007 on the sole ground that the respondent did not file any execution proceedings against the appellant to execute the decree for restitution of conjugal rights. Thus, according to the trial court, the failure of the respondent herein to initiate the proceedings for execution is wrong on his part and based on his own wrong, he cannot try to take advantage. According to the appellant, under Section 23(1)(a) of the Act, the respondent herein cannot be allowed to take advantage of his own wrong. But, the first appellate court reversed the said finding. According to the first appellate court, the failure of the respondent to initiate the proceedings for execution of the decree cannot be termed as wrong in terms of Section 23(1)(a) of the Act. It is on this ground, the first appellate court granted decree of divorce in favour of the respondent.
5. In this appeal, the learned counsel for the appellant would submit that the trial court was wrong in granting decree for divorce as the respondent is not entitled for divorce. According to him, the failure of the respondent to initiate execution proceedings to execute the decree is a misconduct on his part in terms of Section 23(1)(a) of the Act and, therefore, the respondent is not entitled for divorce. The learned counsel would further submit that not only the execution proceeding had not been initiated, even a simple notice demanding the appellant to join the respondent pursuant to the decree for restitution of conjugal rights, was not issued. The learned counsel would also submit that the conduct of the respondent herein in not having visited the house of the appellant at least once to see the child would go to show that it was only the respondent who was responsible for the non-resumption of the marital life.
6. Referring to the counter filed by the appellant herein before the trial court, the learned counsel would further submit that, as a matter of fact, on 15.01.2006, the appellant visited the house of the respondent, but she was not allowed to join the matrimonial home. For these reasons, according to the learned counsel, the decree granted by the lower appellate court is liable to be set aside.
7. But, the learned counsel appearing for the respondent herein would stoutly oppose this appeal. According to her, mere failure to file execution proceedings or mere failure to cause any notice or the alleged failure to see the child cannot be termed as wrong on the part of the respondent in terms of Section 23(1)(a) of the Act. She would further submit that there is no evidence at all that on 15.01.2006 the appellant had come to the house of the respondent in pursuance of the decree for restitution of conjugal rights. According to him, the appellant herein should have obeyed the decree on her own. Thus, according to the learned counsel for the respondent, this appeal deserves only to be dismissed.
8. Considering the complex nature of the legal issue involved in this matter, this court requested Mr.N.Anand Venkatesh, the learned counsel to assist the court as Amicus Curiae and to make his submissions on the legal issue involved in the matter. Accordingly, he brought to the notice of this court various judgements showing the march of law on this subject.
9. Prior to the introduction of Section 13(1-A) of the Act, as per Section 13 of the Act, the spouse who had obtained a decree for restitution of conjugal rights alone was entitled to apply for the relief of divorce on account of the fact that there was no resumption of marital life after the passing of the decree. The party against whom the decree for restitution of conjugal rights was secured was not entitled to file a petition for divorce on the said ground. It is because of this reason, to enable either of the parties to seek divorce , the Act was amended by Amendment Act, 1964 by which Section 13 (1-A) of the Act was introduced. Section 13, as it stood prior to the amendment and the ground for divorce on the ground of non-resumption of marital life in pursuance of the decree for restitution of conjugal rights was taken away from the purview of Section 13 of the Act. Now, section 13(1-A) of the Act reads as follows:-
13. Divorce (1) Any marriage solemnized ...............
(1-A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
... ... ... ...
... ... ... ...
10. A close reading of the above provision would give an indication that there is no need for a party who has obtained the decree for restitution of conjugal rights either to execute the decree or to take any other step to force the other spouse to join him or her in pursuance of the decree for restitution of conjugal rights. If once there is a decree, it is for the other party, against whom the decree has been obtained to join him or her in pursuance of such decree. If both parties do not take any step to resume the marital life, then, either of the parties irrespective of the fact as to who had obtained the decree for restitution of conjugal rights, is entitled to move the court for divorce on this ground.
11. Before the Hon'ble Supreme Court in Dharmendra Kumar v. Usha Kumar, AIR 1977 SC 2218, an argument was advanced that without having taken steps to execute the decree for restitution of conjugal rights, the party in whose favour such decree has been passed is not entitled for divorce. In other words, the argument was that the spouse who had obtained decree for restitution of conjugal rights, if fails to take any further steps, like filing execution proceedings, will be termed as wrong doer in terms of Section 23(1)(a) of the Act and, therefore, he cannot be allowed to take advantage of his own wrong. Negativing the said argument the Hon'ble Supreme Court in para 3 has held as follows:-
"13. .........Therefore, it would not be very reasonable to think that the relief which is available to the spouse against whom a decree for restitution has been passed, should be denied to the one who does not insist on compliance with the decree passed in his or her favour. In order to be a 'wrong' within the meaning of section 23 (1) (a) 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."
12. In Smt. Bimla Devi v. Singh Raj, AIR 1977 Punjab and Haryana 167, a Full Bench of Punjab and Haryana High Court was called upon to examine an identical situation. The Full Bench after having thoroughly examined Section 23(1)(a) as well as Section 13(1-A) of the Act, held that under Order XXI, Rule 32 of CPC, only a symbolical execution of the decree has been provided for and there is no provision to force the two spouses physically to resume cohabitation. The Full Bench has further held in paragraphs 9 & 10 as follows:-
"9. On the other hand, if the provisions of Section 23(1)(a) of the Act are held to be applicable to a petition under Section 13(1A)(ii) on the ground that the party against whom decree for restitution of conjugal rights has been passed having failed to comply with, is taking advantage of his or her own wrong, the provisions of Section 13(1A) would be rendered nugatory, which interpretation cannot be given. It would further be noticed that the legislature thought it fit not to provide the mode of execution of a decree of restitution of conjugal rights so as to unite the two spouses physically who could not live together for one reason or the other. Only symbolical execution of the decree has been provided for. Reference in this connection may be made to the provisions of Section 28 of the Act which provide that the decrees and orders made by the Court in any proceedings under the Act shall be enforced in a like manner as decrees and orders of the Court made in exercise of its original civil jurisdiction are enforced. Reference may be made to the provisions of Order 21, Clause (1) of Rule 32 of the Code of Civil Procedure wherein the mode for execution of a decree for restitution of conjugal rights has been provided. The said decree can be executed by attachment of the property of the judgement-debtor which is a symbolical mode of execution. There is no provision in the Code of Civil Procedure by which 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. That being the position, merely because the spouse, who suffered the decree, refused to resume cohabitation, would not be a ground to invoke the provisions of Section 23(1)(a) so as to plead that the said spouse is taking advantage of his or her own wrong.
10. We are, therefore, inclined to hold that in a case covered under Section 13(lA)(ii) of the Act, either of the parties can apply for dissolution of marriage by a decree of divorce if it is able to show that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in proceedings in which they were parties. The plea that the party against whom such decree was passed failed to comply with the decree or that the party in whose favour the decree was passed took definite steps to comply with the decree and the defaulting party did not comply with the decree and, therefore, such an act be taken to be taking advantage of his or her own wrong would not be available to the party, who is opposing the grant of divorce under Clause (ii) of Sub-section (1-A) of Section 13 of the Act. We are, therefore, inclined to hold that the law laid down in Chaman Lal's case (1971-73 Pun LR 104) (supra) is not the correct position of law and the said authority is, therefore, overruled.
This decision was made by the Bench in L.P.A. filed by Chaman Lal against the decision of a learned single Judge (P. C. Pandit, J.) reported as Chamal Lal v. Mohinder Devi, AIR 1968 Punj & Har 287. It was found by the learned single Judge that the husband having not made any effort to comply with the decree of restitution of conjugal rights passed against him at the instance of the wife could not be allowed to take advantage of his own wrong and thus was not entitled to claim divorce under Section 13(1A) of the Act The learned Judge held that it was the duty of the husband who suffered a decree for restitution of conjugal rights to take steps to comply with the said decree and that he could not choose to avoid restitution of conjugal rights for two years after the passing of the decree to create a ground for petition of divorce. In our opinion, the reasoning given by the learned Judge is not tenable.
No such obligation is imposed by law on the party who suffered such a decree as no provision has been made for physically bringing together the spouses who separated because of the fault of either of them. To hold that the person who suffered the decree is obliged to comply with the same and if he fails to do so, the provisions of Section 23(1)(a) can be invoked on this ground, will make the provisions of Section 13(1A)(ii) redundant. If that interpretation is given, then in every ease where a decree for restitution of conjugal rights has been passed, there being a duty cast on the spouse who suffered the decree to comply with the same, there can hardly be a case in which decree for divorce can be obtained under the provisions of Section 13(1A)(ii) at the instance of the party who suffered the decree. As has been pointed out, the policy of the legislature by making amendments to the provisions of Section 13 appears to be to liberalise divorce so that the broken marriages are dissolved and the parties to the marriage are freed from the bonds as they are unable to live together in spite of opportunities having been given to resolve the differences and to live together.
It may well be that the spouse who obtained the decree for restitution of conjugal rights may change his or her mind and may not be willing to live with the other spouse after the passing of the the decree. It would further be seen that a spouse who has suffered a decree of restitution of conjugal rights, has already been adjudged to have left the company of the other spouse without reasonable excuse. The said wrong was committed much before the passing of the decree for restitution of conjugal rights and it can-not be said that the said wrong has been committed after the passing of the decree for restitution of conjugal rights. Moreover, living separately from the spouse cannot be regarded as a wrong as the term 'wrong' as contemplated in Section 23(1)(a) of the Act contemplates causing of some injury to the other side. In this view of the matter, the decision of the learned single Judge, which was affirmed in L.P.A. in Chaman Lal's case (supra), in our opinion, is not correctly made. Similarly, a Single Bench decision of the Bombay High Court in Laxmibai Laxmichand Shah v. Laxmichand Ravaji Shah, AIR 1968 Bom 332 in our view, is not the correct position of law.
13. Similarly, the Gujarat High Court had an occasion to examine the same question in Anil Jayantilal Vyas v. Sudhaben, AIR 1978 Gujarat 74 wherein in paragraph 10, it has held as follows:-
"10. I am of the opinion that though S.13 (1-A) as amended in 1964 entitles even a defaulting party and not merely an aggrieved party to obtain dissolution of marriage by a decree of divorce if there is no cohabitation for a period of two years or upwards after the decree for judicial separation is passed or if the decree for restitution of conjugal rights is not complied with for the said period , it is the duty of the Court to see under S.23(1) whether the petitioner under S.13 (1-A) is disabled by his conduct subsequent to the decree of judicial separation or decree of restitution of conjugal rights, as the case may be, which may again amount to taking advantage of his own wrong."
14. In yet another judgement in Santosh Kumari v. Mohan Lal, AIR 1980 Punjab and Haryana 325, the Punjab and Haryana High Court in para 5 has held as follows:-
"Order XXI, R. 32 of the Civil P. C. provides method for executing the decrees for restitution of conjugal rights. According to sub-rule (1) if the judgement debtor fails to obey the decree it can be enforced against him by attachment of his property. Sub-rule (3) says that if in spite of attachment of the property for a period of six months the judgement debtor fails to obey the decree, the attached property shall be sold in case the decree-holder makes an application in this regard. The Court in that event may award to the decree-holder such compensation as it thinks fit. The rule does not provide that the Court shall give Physical custody of the person who suffered the decree to the decree-holder. Thus the decree for restitution of conjugal rights can be executed in a symbolic manner. The aforesaid rule has also been interpreted by the Full Bench in Shrimati Bimla Devi's case (supra) along with Section 13(1)(a} and S. 23(1) of the Act. The relevant observations of Dhillon, J. speaking for the Bench are as follows:-
"The provisions of S. 23(1)(a) cannot be invoked to refuse the relief under S. 13(1A)(ii) on the ground of non-compliance of a decree of restitution of conjugal rights where 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 Civil P. C. by which 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 invoke the provisions of S. 23(1)(a) so as to plead pat the said spouse is taking advantage of his or her own wrong. In a case covered under S. 13(1A)(ii), either of the parties can apply for dissolution of marriage by a decree of divorce if it is able to show that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in proceedings in which they were parties. The lea that the party against whom such decree was passed failed to comply with the decree or that the party in whose favour the decree was passed took definite steps to comply with the decree and the defaulting party did not comply with the decree and therefore, such an act 6e taken to be, taking advantage of. his or her own wrong, would not be available to the party, who, is opposing the grant of divorce under clause (ii) of sub-section (1A) of S. 13."
15. From these judgements , it is crystal clear that there is no need for the husband who had obtained the decree for restitution of conjugal rights against the wife to compel the wife to join matrimonial home by filing any execution petition. To hold him as a wrong doer in terms of Section 23(1)(a) of the Act, it should be proved to the satisfaction of the court that the wife could not resume cohabitation because of some hurdles put up by the husband. For example, after the passing of decree for restitution of conjugal rights, suppose, the husband had developed illicit intimacy with another woman and lives in adulterous life then, it would not be possible for the wife/judgement-debtor to join the husband. Here, the resumption of marital life was made impossible by the conduct of the husband. This is clearly a wrong in terms of section 23(1)(a) of the Act. In such event, if the husband files a petition for divorce then, the wife will be justified in resisting the same on the ground that the husband is not entitled for divorce as he is guilty of his own wrong in terms of Section 23(1)(a) of the Act. Similarly, if the wife issues a notice calling upon the husband to allow her to resume marital life and if the husband in whose favour restitution of conjugal decree has been passed issues a reply stating that he is not willing to join her, later on, the husband cannot take advantage of his own wrong and seek divorce. These are all only illustrations and the same cannot be said to be exhaustive. The crux of the issue is that if the party to the decree for restitution of conjugal rights has made the resumption of matrimonial life impossible by his own conduct, then, such party is the wrong doer in terms of Section 23(1)(a) and he cannot ask for divorce under Section 13 (1-A) of the Act. But, at the same time, the husband could very well ask for divorce on the very same ground against the other spouse as he is not the wrong doer in terms of Section 23(1)(a) of the Act.
16. But, the learned counsel for the appellant would rely on a judgement of this Court in T.Srinivasan v. T.Varalakshmi, I (1991) DMC 20. That was case where a plea was taken that the spouse who approached the court for divorce under S.13 (1-A) of the Act, prevented the other spouse from resuming the marital life. It was on this ground, as I have already pointed out, this Court declined to grant the decree of divorce in favour of the wrong doer. That matter was taken to the Hon'ble Supreme Court in Civil Appeals Nos.4904-05 of 1990 reported in T.Srinivasan v. T.Varalakshmi, (1998) 3 Supreme Court Cases 112, wherein a Full Bench of the Hon'ble Supreme Court in para 1 has held as follows:-
"1. The finding recorded by the courts below is that the husband obtained a decree for restitution of conjugal rights not to act in obedience thereof but, on the other hand, to keep the wife deprived of her right to perform her conjugal duties. The wife made a demand of the husband to let her join him but he refused to allow her enter the house rather he drove her away as also her relatives, whoever attempted to rehabilitate the wife. These acts of the husband were positive wrongs amounting to "misconduct", uncondonable for the purposes of Section 23(1)(a) of the Hindu Marriage Act, 1955. Hence, he was rightly denied relief under Section 13 (1-A) of the said Act. The appeals, therefore, fail and are hereby dismissed."
17. The learned counsel for the appellant tries to make use of the said judgement in favour of the appellant. But, I find that the said judgement is totally against the stand taken by the learned counsel for the appellant in this case. A close reading of the said judgement would go to show that factually in that case the husband did not permit the wife to join him and he drove her away and also her relatives who attempted to rehabilitate the wife. It was in those circumstances, the Hon'ble Supreme Court held that in terms of Section 23(1)(a) of the Act, the husband was the wrong doer and, therefore, he was not entitled for divorce. This again goes to support the case of the respondent herein.
18. In the case on hand, admittedly, neither the appellant nor the respondent took any step for resumption of marital life after the passing of the decree for restitution of conjugal rights passed in H.M.O.P.No.24 of 2004. Though it is stated by the appellant that on 15.01.2006, she went to the house of the respondent to resume the marital life, there is no acceptable evidence to prove the same. Further, there is no evidence at all to show that the respondent has committed any wrong in terms of Section 23(1)(a) of the Act. In the above circumstances, in my considered opinion, as I have already extracted above, the respondent herein is entitled for divorce under Section 13 (1-A) of the Act. Thus, the first appellate court was absolutely right in granting divorce in favour of the respondent herein.
19. In the result, the Civil Miscellaneous Second Appeal fails and the same is accordingly dismissed. The Judgement and Decree dated 17.02.20122 passed in C.M.A.No.27 of 2010 by the learned District Judge, The Nilgiris at Udhagamandalam are hereby confirmed. No costs. Consequently, connected MP is closed.
20. Before parting with the judgement, I place on record my appreciation for the excellent assistance rendered by the Amicus Curiae Mr.N.Anand Venatesh.
kmk To
1.The District Judge, The Nilgiris District at Udhagamandalam.
2.The Subordinate Judge, Udhagamandalam, The Nilgirist District