Karnataka High Court
K Jayanthi W/O B Nagaraj vs B Nagaraj S/O Late M Balakrishna Shastry on 3 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 3236
Bench: Ravi Malimath, B M Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 03RD DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
MISCELENEOUS FIRST APPEAL NO.4979 OF 2012
BETWEEN:
K. JAYANTHI
WIFE OF B. NAGARAJ
AGED ABOUT 42 YEARS
RESIDENT OF NO.71, SARASA NILAYA
APPAJI RAO COMPOUND
KOTE ROAD CROSS,
SHIMOGA - 577 201.
... APPELLANT
(BY SRI R. GOPAL, ADVOCATE)
AND
B. NAGARAJ
SON OF LATE. M. BALAKRISHNA SHASTRY
AGED ABOUT 48 YEARS
RESIDENT OF HOUSE NO 587
'NAGAKRISHNA NILAYA'
4TH CROSS, PARK EXTENSION
DURGIGUDI, SHIMOGA - 577 502.
... RESPONDENT
(BY SRI S. V. PRAKASH, ADVOCATE)
THIS MISCELENEOUS FIRST APPEAL IS FILED UNDER
SECTION 19(1) OF FAMILY COURTS ACT AGAINST THE
JUDGEMENT AND DECREE DATED 09.04.2012 PASSED IN
M.C.NO.47 OF 2011 ON THE FILE OF FAMILY COURT,
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SHIMOGA, ALLOWING THE PETITION FILED UNDER SECTION
13(1-A) OF HINDU MARRIAGE ACT FOR DECREE OF DIVORCE.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN
HEARD AND RESERVED ON 21.02.2019 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, B..M.SHYAM
PRASAD J., DELIVERED THE FOLLOWING:
JUDGEMENT
This appeal is by the wife calling in question the judgement and decree dated 9th April 2012 in MC No. 47 of 2011 on the file of the Family Court at Shivamoga (for short, 'the family Court'). This petition in MC No. 47 of 2011 is filed by the respondent-husband under the provisions of section 13(1-A)(ii) of the Hindu Marriage Act, 1955 for dissolution of the marriage. The petition is allowed, and the marriage is dissolved. Therefore, the wife has filed this appeal.
2. The marriage between the parties is solemnized on 2nd March 1994. A girl child is born to them on 3rd March 1995. The husband filed a petition for dissolution of the marriage in MC No.29 of 1996, 3 and the wife requited by filing a petition for restitution of conjugal rights in MC No.39/1996. These two petitions were taken up for common disposal, and by the common judgement dated 6th January 2005, the Family Court Shivamoga dismissed the husband's petition for dissolution of marriage and allowed the wife's petition for restitution of conjugal rights. The husband called in question the common judgement dated 6th January 2005 both as regards the dismissal of his petition for divorce and the grant of restitution of conjugal rights to the appellant. A co-ordinate bench of this Court dismissed both the appeals on 1st June 2009. It is after the dismissal of the appeals, the husband filed the present petition in MC No. 47 of 2011 for dissolution of marriage under the provisions of section 13(1-A)(ii) of the Hindu Marriage Act 1955 (for short, 'H M Act').
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3. The husband, in support of his plea for divorce in the present petition, contended that cohabitation is not resumed despite the fact that it was more than a year after the judgment of this Court on 1st June 2009, confirming the decree for restitution of conjugal rights granted by the Family Court Shivamoga. The wife, who obtained the decree for restitution of conjugal rights, has not made any effort to commence matrimonial life. The couple are separated for over 16 years, and the marriage between them is irretrievably broken down. There is no possibility of a reunion. The wife has not only caused mental distress and agony to the him, she has also hurt him physically. He is entitled for divorce on the ground that there has been no restitution of conjugal rights for over a period of one year from 1st June 2009, the date of dismissal of appeal confirming the grant of conjugal rights at the instance of the wife in MC No. 39 of 1996.
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4. The wife filed objection statement contesting the present petition, but without disputing the date of marriage, or the birth of the child, or the initiation of respective proceedings for divorce and restitution of conjugal rights, or the dismissal of the petition for divorce by the Family Court Shivamoga and the grant of the decree of restitution of conjugal rights, or the confirmation thereof with the dismissal of the appeals filed by the respondent. However, the wife contended that there was no resumption of marital life even after the confirmation of the decree for restitution of conjugal rights because the husband had not allowed her to join him in the matrimonial home and discharge her matrimonial obligations. The husband was taking advantage of his own wrong in filing the petition under the provisions of Section 13(1-A)(ii) of the H. M. Act, and as such, the petition was liable to be dismissed in view of the provisions of Section 23 of the H. M. Act. 6
5. The husband and wife examined themselves in support of the respective cases, and they relied upon the certified copy of the prior proceedings/judgements. The family Court formulated the question, 'Whether the petitioner has proved that there has been no restitution of conjugal rights between him and respondent for a period of one year and upwards after the decree of restitution of conjugal rights in the previous proceedings between them and therefore, he was entitled for a decree of divorce '.
6. The family Court on appreciation of the evidence on record concluded that the petitioner was able to establish the necessary ingredients viz., that there had been no cohabitation with the appellant and for over a period of one year from the date of the judgment of this Court on 1st June 2009 confirming the grant of the decree of restitution of conjugal rights. The family Court concluded that the wife was not able to 7 establish that she had done her best to join the husband after the judgment of this Court or that her efforts to ensure resumption of cohabitation were either obstructed or thwarted by the husband. The family Court also concluded that the couple were staying separately for over 18 years, and their marriage is irretrievably broken down and reached a point where it would not be worthwhile to continue the relationship. The family Court, for these reasons, by the impugned judgment allowed the petition by section 13(1-A)(ii) of the H. M. Act dissolving the marriage.
7. The learned counsel for the wife arguing in support of the appeal contended that a decree for divorce cannot automatically follow if there has been no resumption of cohabitation between spouses for more than one year after the passing of a decree for restitution of conjugal rights. The provisions of Section 23(1)(a) of the H M Act stipulate that a court can grant a 8 relief under the provisions of the H.M. Act, including the decree of divorce under the provisions of section 13(1- A)(ii) of the H. M. Act, only if the court is satisfied that the spouse, who is asking for such relief, is not taking advantage of his or her own wrong.
8. The learned counsel further argued that in the present case it is established that the husband has frustrated the decree of restitution of conjugal rights, and if it is established that the husband has frustrated the decree, the husband cannot contend that there has been no cohabitation for a period of more than one year and as such, he is not entitled for a decree of divorce. The family Court has erred in not considering the evidence on record in the light of the provisions of Section 23(1)(a) of the H. M. Act. The learned counsel relied upon decision of this Court in D Parthasarathy v. Vinayaprabha reported in AIR 2004 Kar 348 to buttress his argument.
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9. Per contra, the learned counsel for the husband - the respondent submits that there cannot be any quarrel with the proposition that a court, in view of the provisions of section 23(1)(a) of the H. M. Act, cannot grant a relief under the provisions of the H.M. Act, if it is satisfied that a spouse is taking advantage of his or her own wrong. But, as found by the Family Court, the wife, who has undisputedly kept quiet after the confirmation of the decree of restitution of conjugal rights by this Court without taking any measure for resumption of cohabitation, cannot contend that the husband has frustrated the decree of restitution of conjugal rights. It is undisputed that there has been no resumption of cohabitation. There is no evidence on record to indicate that the husband is guilty of any wrongdoing. Therefore, it would not be reasonable to conclude that the petition for divorce under section 13(1-A)(ii) of the H. M. Act should be 10 dismissed. As such, no interference is called for with the impugned judgment by the family Court.
10. In the light of the rival submissions the following question would arise for consideration:
"Whether in the facts and circumstances of the case, the family Court is justified in dissolving the marriage between the appellant and the respondent under Section 13(1-A)(ii) of the H. M. Act instead of dismissing such petition because of the provisions of section 23(1)(a) to (e) of the H. M. Act."
11. The husband has filed present petition in M.C.No.47 of 2011 under the provisions of Section 13(1- A)(ii) of the H. M. Act. The provisions of Section 13(1-A) reads as follows:
"(1-A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the 11 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 there 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 of restitution of conjugal rights in a proceedings to which they were parties."
It is obvious from the reading of these provisions that the necessary twin ingredients for relief under Section 13(1-A) (ii) of the H. M. Act are (a) that there must be a decree for restitution of conjugal rights between the parties to the proceedings in an earlier proceedings, and
(b) that there has been no restitution of conjugal rights 12 between these parties for one year or upwards after the passing of such a decree of restitution of conjugal rights. A spouse seeking dissolution of marriage under the provisions of the Section 13(1-A)(ii) of the H. M. Act must therefore necessarily establish these two ingredients.
12. In the light of the material on record and the rival submissions, it is obvious that there is no dispute that this Court's confirmation of the decree for restitution of conjugal rights in the earlier proceedings in MC No.39 of 1996 has attained finality. It is also obvious that there is no dispute that there was no resumption of cohabitation between the couple as of the date of the present petition in MC No. 47 of 2011. As such, the appellant has established the twin requirements under the provisions of the Section 13(1- A)(ii) of the H. M. Act. However, it is the wife's defense that the husband has frustrated the decree for 13 restitution of conjugal rights and in filing the petition for divorce under the provisions of the Section 13(1-A)(ii) of the H. M. Act on the ground that there has been no restitution of conjugal rights for more than a year from the date of the confirmation of the decree for restitution of conjugal rights, the husband is taking advantage of his own wrong doing. As such, the petition for divorce should be dismissed in the light of the provisions of Section 23(1)(a) of the H. M. Act.
13. The provisions of Section 23 of the H. M. Act, material for the purposes of this case, read as follows:
"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 grounds specified in sub-clause (a), sub-
clause (b) and sub-clause (c) of clause (ii) of Section 5 is not any way taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b) where the ground of the petition is the ground specified in clause (i) of subsection 14 (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground or the petition is cruelty the petitioner has not in any manner condoned the cruelty, and (bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and
(c) the petition not being a petition presented under section 11 is not presented or prosecuted in collusion with the respondent, and
(d) there has not been any unnecessary or improper delay in instituting the proceeding, and
(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly".
14. This Court in D. Parthasarathy v.
Vinayaprabha (supra) has exposited that the right to seek dissolution of marriage under Section 13(1-A)(ii) of the H. M. Act is not absolute but is conditioned by the provisions of Section 23 of the H. M. Act. It has been held as follows:
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"It is now settled by a catena of decisions of the Apex court, this court and other High courts that the right conferred under subsection (1-A) of section 13 is not absolute, but is qualified by the provisions of section 23 of the Act. Subsection (1-A) of Section 13 merely enlarges the right to apply for divorce and it is not compulsory to grant a decree for divorce on presenting a petition under the said section on the mere proof that there was no cohabitation. The provisions of section 23 presupposes that the Court seized of the petition under subsection (1)(a) of section 13 will grant the relief sought for, only if the conditions in section 23 are satisfied and not otherwise. It is trite that the grant of refusal to dissolve a marriage by a decree of divorce depends on the facts and circumstances of the case and there can be no general principles of universal application."
15. This Court can only be in agreement with this exposition of law, and add further as follows. The 16 Courts while considering a petition for grant of relief under the H. M. Act, even in cases that are undefended, will have to examine whether a petition should be rejected for any of the grounds mentioned in section 23(1)(a) to (e) of the H. M. Act, and only if the Courts are satisfied that a petition is not liable to be dismissed on any of the grounds listed in these provisions, the Courts shall grant the relief. In cases that are uncontested, therefore, the Courts will have to sieve the material on record to satisfy itself that the petition would not be barred because of any of the grounds mentioned in Section 23(1)(a) to (e) of the H. M. Act. However, in cases that are contested, if a contesting spouse specifically urges any of the grounds mentioned in Section 23(1)(a) to (e) of the H. M. Act as a defense, the contesting spouse must place material on record to establish the ground urged. The contesting spouse must discharge the burden of establishing the ground 17 urged, and if such burden is not discharged, it will be one of the circumstances that will have to be considered by the Courts while examining the question whether the petition under Section 23(1)(a) to (e) of the H. M. Act.
16. It is the wife's case that the husband having frustrated the decree of restitution of conjugal rights, which is confirmed by this Court on 1st June 2009, is trying to take advantage of his own wrong doing in seeking dissolution of marriage on the ground that there has been no cohabitation for a period of one year even after the confirmation of the decree of restitution of conjugal rights by this Court. The question is whether the wife is able to establish this defense.
17. As observed by the family Court, the wife has admitted in her chief examination that it is true that there has been no restitution of conjugal rights with her husband even after the confirmation of the decree of restitution of conjugal rights by the Court. Further, she 18 has stated that despite her efforts, the husband has not allowed her to join him and to discharge her duties as a wife. Except this assertion, she has not stated anything about the efforts put in by her to ensure resumption of cohabitation. She, in the least, should have detailed the efforts put in by her to bring about resumption of cohabitation after the confirmation of the decree for restitution of conjugal rights. She is completely silent both in her pleadings and evidence in this regard. In fact, she has also admitted in the cross- examination that she has not filed any execution petition for enforcement of the decree for restitution of conjugal rights.
18. In the light of the admitted facts and circumstances of the case, and in the absence of any material to establish that the husband has frustrated the resumption of cohabitation either by obstructing or thwarting the wife's efforts to resume cohabitation, the 19 family Court has rightly concluded that the husband - the respondent is entitled for divorce under 13(1-A)(ii) of the H. M. Act and the wife - the appellant has failed to establish her defense under section 23(1)(a) of the H. M. Act. The impugned judgement is neither capricious nor perverse nor irregular. Therefore, the appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE
nv*