Uttarakhand High Court
Mahesh Belwal vs Poonam Belwal on 19 February, 2020
Bench: Sudhanshu Dhulia, Narayan Singh Dhanik
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
First Appeal No. 100 of 2018
Mahesh Belwal ....... Appellant
Vs.
Poonam Belwal .......Respondent
Present: Mr. Lalit Belwal, Advocate for the appellant.
Mr. B.D. Pande, Advocate for the respondent.
Coram: Hon'ble Sudhanshu Dhulia, J.
Hon'ble Narayan Singh Dhanik, J.
Hon'ble Sudhansu Dhulia, J. (Oral) This first appeal has been filed by the appellant under Section 19 of the Family Courts Act, 1984, against the judgment and order dated 15.05.2018 passed by the Family Court, Nainital in Case No. 310 of 2014, whereby the petition of the appellant for dissolution of his marriage has been dismissed.
2. The marriage of the appellant was solemnized as per the Hindu rites and ceremonies on 22.11.2009. At the relevant time, the present appellant was working as Assistant Librarian in a Degree College at Kashipur, District Udham Singh Nagar, Uttarakhand.
3. The case of the appellant is that while they were living as husband and wife in Haldwani, his wife i.e. respondent left her matrimonial house on 07.07.2010 on her free will and started living in her maternal house, 2 which is also in the same town. Since then she has never returned.
4. The respondent (wife) later filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 (from hereinafter referred to as the "Act") before the Family Court, Nainital. The petition was contested by the appellant/husband and was ultimately decreed on 21.09.2013.
5. The appellant alleges that though the decree was passed under Section 9 of Act for restitution of conjugal rights in favour of the respondent on 21.09.2013 by the Family Court, yet the conjugal rights have not been restituted and she continues to live separately in her maternal house in Haldwani.
6. The case of the wife, on the other hand, is that she made every possible effort to live with her husband after the decree of restitution of conjugal rights was passed. She did not execute her decree for obvious and practical difficulties. A notice was sent by her through a lawyer on 09.06.2014 for compliance of the order of the Family Court, but in vain.
7. Meanwhile, on 21.11.2014, a petition for dissolution of marriage was filed by the present appellant under sub-section (1-A) of Section 13 of the Hindu Marriage Act. Sub-section (1-A) of Section 13 of the Act.
8. Sub-section (1-A) of Section 13 of the Hindu Marriage Act reads as under:-
3"13. Divorce.-
(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."
(Emphasis provided)
9. All the pleadings and evidences which were adduced before the Family Court were in order to prove that there has been no restitution of conjugal rights between the parties even after one year of the passing of the decree for restitution of conjugal rights in favour of the decree holder i.e. the wife, and therefore, now this is a ground for divorce and the marriage of the parties be dissolved on this ground alone.
10. The pleadings of the plaintiff/appellant, however, did not find favour with the Family Court and the Family Court was of the opinion that the benefit of his own wrong cannot be given to the plaintiff/appellant inasmuch as he did not comply with the decree of the restitution of conjugal rights. Having himself failed to obey the decree of the Family Court, he cannot be given the benefit of his own wrong. This view was apparently taken in terms of Section 23(1) (a) of Act.
411. Sub-section (1) (a) of Section 23 of Act reads as under:-
"23. Decree in proceedings.- (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that-
(a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause
(ii) of Section 5 is not in anyway taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b)....
(bb)...
(c).....
(d).....
(e).....
(2).....
(3).....
(4)....."
12. In other words, the court below came to the finding that the plaintiff/appellant cannot take benefit of his own wrong. This own wrong being that he did not comply with the decree of the family court and he continued to live separately denying his wife her conjugal rights.
13. The admitted fact in the present case is that the marriage was solemnized on 22.11.2009 and the wife is staying separately from the husband since 7.7.2010 i.e. after eight months of their marriage. She is living separately in her maternal house in the same city. There has been no cohabitation between them since 7.7.2010. There is also no child born out of the wedlock. It is the wife who filed a petition for restitution of conjugal rights in 5 the year 2011 which was decreed in the year 2013, as already referred above.
14. As per the amendment made in sub-section (1-A) of Section 13 of Act, as it stands today, in case after the decree for restitution of conjugal rights if conjugal rights have not been restored, this becomes a ground for dissolution of marriage Section 13 of the Act. There is a short history of this amendment which is given in paragraph that follows:
15. Initially under the original provisions for dissolution of marriage i.e. under Section 13 of the Hindu Marriage Act, there were several grounds for dissolution of marriage. Of these the two grounds for grant of a decree of divorce which existed prior to 1964 were when one of the parties - "(a) has not resumed cohabitation for a space of two years or upwards after the passing of a decree for judicial separation against that party"; and the second when one of the parties - "(b) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree". These grounds were given in sub-section (1)(viii) and sub-section (1) (ix) of Section 13 of the Act, respectively. These were omitted by an amendment by Act of 44 of 1964, and were then brought into force w.e.f. 20.12.1964 after then rephrasing by inserting sub-section (1-A) to Section 13 of the Act, as already referred above.
16. The difference between the earlier provision i.e. prior to 1964 and post 1964 was that whereas prior to 1964 the right to file a petition for dissolution of marriage was given only to the decree holder after the amendment of 1964, this right was given to both the decree holder as 6 well as the judgment debtor. In other words, even a person against whom a decree of restitution of conjugal right was passed, was entitled to raise Sub-section (1-A) as a ground for dissolution of marriage. It is also necessary to mention here that in the year 1976 another amendment was brought and the period of "two years"
was reduced to "one year".
17. The question which kept on coming before the court after the aforesaid amendment (Amendment of 1964) was whether a party can be given benefit of his own wrong i.e. wrong of not complying with the court's order. Will such an action on the part of a person also entitle him to file a petition for divorce against his wife under sub-section (1-A) of Section 13 of the Act.
18. This matter was examined in detail by a Full Bench of Delhi High Court in the case of Ram Kali vs. Gopal Dass reported in (1971) ILR 1 Delhi 6 in which the judgment was authored by Hon'ble H.R. Khanna, C.J. (as His Lordship then was). The question before the Full Bench was whether benefit of sub-section (1-A) of Section 13 of the Act can be given to a person who has successfully resisted restitution of conjugal rights or should be denied to him as that would amount to giving him benefit of his own "wrong", in light of Section 23 of the Hindu Marriage Act, 1955.
19. The Full Bench of Delhi High Court was of the view that an interpretation of the two provisions which denies the benefit in terms of sub-section (1) (a) of Section 23 of the Act would make a dead letter of the amendment introduced in Section 13 of the Act by Act No. 44 of 1964. It was stated by the Full Bench as under:-
7"A decree for judicial separation or for restitution of conjugal rights necessarily presupposes that the spouse against whom such a decree is granted has been guilty of marital wrong or has failed to discharge an essential marital obligation. Despite such a wrong or failure on the part of the defaulting spouse, the legislature has given a right by the amending Act to the defaulting spouse to apply for a decree of divorce if the other conditions mentioned in sub-section (1A) are fulfilled. To non-suit such a petitioner by invoking clause
(a) of sub-section (1) of Section 23 would have the effect of defeating the manifest purpose of the amending Act and reducing it to futility. A construction which would lead to such a result must be avoided. The provisions of Section 23(1)(a), in our opinion, should be so construed that they operate in harmony with those of Section 13 (1A) rather than in such a manner as may have the effect of nullifying the change brought about by insertain of sub-section (1A) in Section 13 of the Act. As observed on page 45 of Maxwell on the Interpretation of Statutes, 12th Edition, "if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result." The duty of Courts is to place such construction on a statute as shall suppress the mischief and advance the remedy.
In construing an enactment and determining its true scope it is permissible to have regard to all such factors as can legitimately be taken into account to ascertain the intention of the legislature such as the history of the Act the reason which led to its being passed and the mischief which it intended to suppress as well as the other provisions of the statute."
20. The Full Bench was also of the opinion that when two interpretations are possible of a provision or provisions then that interpretation should be adopted 8 which gives true meaning to the Statute. The court has also to keep in mind as to what was the law earlier and what is the new law and what is the mischief which the new law has tried to create by way of an amendment. Keeping all these factors into mind, the Full Bench came to the conclusion as under:-
"Keeping the above principles in view, we are of the opinion that the intention of the legislature while amending the Act by Act 44 of 1964 was that the non-resumption of cohabitation or absence of restitution of conjugal rights as between the parties to the marriage for a period of two years or upwards, after the passing of a decree for judicial separation or for restitution of conjugal rights, would not constitute a wrong within the meaning of clause (a) of sub-section (1) of Section 23 of the Act, so as to disentitle the spouse, against whom the earlier decree for judicial separation or for restitution of conjugal rights had been granted, from obtaining the relief of dissolution of marriage by a decree of divorce. The underlying object of the legislature in inserting sub-section (1A) in Section 13 seems to be that if there has been no resumption of cohabitation or no restitution of conjugal rights as between the parties to the marriage for a period of two years or upwards, after the passing of a decree for judicial separation or for restitution of conjugal rights, the Court should assume that the relations between the parties have reached a stage where there is no possibility of reconciliation and as such it might grant the decree of divorce. The aforesaid object is in consonance with the modern trend not to insist on the maintenance of union which has utterly broken down. It would not be a practical and realistic approach, indeed it would be unreasonable and inhuman, to compel the parties to keep up the facade of marriage even though the rift between them is complete and there are no prospects of their ever living together as husband and wife."
21. The view taken by the Full Bench of Delhi High Court in terms of interpretation of sub-section (1-A) of 9 Section 13 of the Act was held to be the correct view by the Hon'ble Apex Court in the case of Dharmendra Kumar Vs. Usha Kumar reported in (1977) 4 SCC 12.
22. Learned counsel for the respondent Sri B.D. Pande, however, relies upon a later decision of the Hon'ble Apex Court in the case of Hirachand Srinivas Managaonkar vs. Sunanda reported in (2001) 4 SCC 125, where somewhat a different view has been taken. It has been held that the provision as contained in sub- section (1) (a) of Section 23 of the Act does not become redundant after the incorporation of sub-section (1-A) of Section 13 of the Act and the wrong on the part of the party has to be considered by the court while considering the dissolution of marriage under sub-section (1-A) of Section 13 of the Act. What has been said in Hirachand Srinivas Managaonkar (supra) judgment is as follows:-
"The contention that the right conferred by sub-section (1-A) of Section 13 is absolute and unqualified and that this newly conferred right is not subject to the provisions of Section 23 is fallacious. This argument appears to be based on the erroneous notion that to introduce consideration arising under Section 23(1) into the determination of a petition filed under sub- section (1-A) of Section 13 is to render the amendments made by the Amending Act No.44 of 1964 wholly meaningless. As noted earlier, prior to the amendment under clauses (viii) and
(ix) of Section 13(1) the right to apply for divorce was restricted to the party which had obtained a decree for judicial separation or for restitution of conjugal rights. Such a right was not available to the party against whom the decree was passed. Sub-section (1-A) of Section 13 which was introduced by the amendment confers such a right on either party to the marriage so that a petition for divorce can, after the amendment, be filed not only by the party which had obtained a decree for judicial separation or for restitution of conjugal rights 10 but also by the party against whom such a decree was passed. This is the limited object and effect of the amendment introduced by Act No.44 of 1964. The amendment was not introduced in order that the provisions contained in Section 23 should be abrogated and that is also not the effect of the amendment. The object of sub-section (1-A) was merely to enlarge the right to apply for divorce and not to make it compulsive that a petition for divorce presented under sub-section (1-A) must be allowed on a mere proof that there was no cohabitation or restitution for the requisite period. The very language of Section 23 shows that it governs every proceeding under the Act and a duty is cast on the Court to decree the relief sought only if the conditions mentioned in the sub-section are satisfied, and not otherwise.
Therefore, the contention raised by the learned counsel for the appellant that the provisions of Section 23(1) are not relevant in deciding a petition filed under sub-section (1-A) of Section 13 of the Act, cannot be accepted."
23. In Hirachand Srinivas Managaonkar case (supra) before the Hon'ble Apex Court, the matter was firstly not of restitution of conjugal rights but of judicial separation where a decree of judicial separation was granted in favour of the wife and maintenance was also given in her favour. The husband by his continuous conduct disobeyed the decree of the court, inasmuch as he continued to live with his mistress and also refused to pay the maintenance as directed by the court. Under these circumstances, the conduct of the husband was considered to be "wrong", and when he subsequently moved a petition for dissolution of marriage under sub- section (1-A) of Section 13 of the Act, the relief of a decree of divorce was declined.
24. Section 23(1)(a) will not be applicable to the situation at hand. The "wrong" contemplated in Section 23 11 does not always include a non-compliance of a decree. It also does not mean that in every case where a situation as contemplated under sub-section (1-A) of Section 13 exists the court must grant a decree for divorce. It will depend upon facts of each case.
25. In the present case, even after the decree for restitution of conjugal right was passed in favour of the wife on 21.09.2013, she has not produced any reliable evidence before the court to suggest that any positive efforts were made by her to live with the husband. She sends a notice to her husband through a lawyer only on 09.06.2014 after a period of nine months of passing of the decree for restitution of conjugal rights. Even though it is only symbolic in nature, but the wife could have moved for execution of the decree for restitution of conjugal rights under Order 21 Rule 32 of CPC, which she did not. No reliable evidence was placed by her to show that positive efforts were made by her in this direction. Admitted position is that she is living separate in the same town, since 07.07.2010. There is no apparent act of cruelty or any misdemeanor on the part of the husband. None shown before the court below or before this Court.
26. Under these circumstances, we are of a considered view that sub-section (1) (a) of Section 23 of the Act will not be applicable in the present case and the decree of divorce ought to have been granted to the appellant/husband, in terms of sub-section (1-A) of Section 13 of the Act. The Family Court has wrongly applied the provisions of Section 23(1)(a) to the facts of the present case. In our considered view, the husband has not 12 committed any "wrong" as contemplated under Section 23(1)(a) of the Act.
27. In view of the above, appeal is allowed. The judgment and order dated 15.05.2018 passed by the Family Court, Nainital in Case No. 310 of 2014 is hereby set aside. The petition of the husband/appellant for dissolution of marriage on ground contained under Section 13(1-A) of the Hindu Marriage Act, 1955 is hereby decreed.
28. The appellant/husband earns more than Rs.50,000/- per month as he is working as an Assistant Librarian in a degree college. The respondent has no source of income. There is no child out of the wedlock. We therefore deem it proper that a sum of Rs. 12,50,000/- (Rupees Twelve Lakh Fifty Thousand only) will be sufficient as permanent alimony to be paid by the appellant to the respondent. Out of the aforesaid amount, a sum of Rs. 5,00,000/- (Rupees Five Lakh only) shall be deposited by the appellant with the concerned Family Court within ten days, from the date he obtains a certified copy of this order, and the remaining amount shall be deposited by the appellant with the concerned Family Court within three months thereafter. Our order will be subject to the above deposit. The respondent will be at liberty to withdraw the above amount thereafter.
(Narayan Singh Dhanik, J.) (Sudhanshu Dhulia, J.) 19.02.2020 Avneet/ 13