Kerala High Court
Radhakumari vs Dr. K.M.K. Nair on 2 February, 1988
Equivalent citations: AIR1988KER235, AIR 1988 KERALA 235, (1988) 1 KER LT 461, (1988) 24 REPORTS 162, (1988) 2 DMC 166, (1988) 2 HINDULR 486, (1988) 1 KER LJ 246
JUDGMENT Shamsuddin, J.
1. The above M.F.A. is directed against the order passed by the District Court, Trivandrum in O.P. (H.M.A.) No. 63 of 1983, an application filed by the appellant herein under Section 13(1A) (ii) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act'). By order dated 16th August, 1982 the learned District Judgedismissed the application. The appellant husband challenges the said order in this, M.F.A.
2. A.S. No. 265 of 1986 is filed by the appellant (husband) against the judgment and decree of the court of Subordinate, Judge, Trivandrum in O.S. No. 532 of 1983, in so far as it related to maintenance awarded by the lower court to the respondent at the rate of Rs. 250/- per mensem. The appellant has not challenged the order of maintenance awarded to the children, the plaintiffs 2 and 3 in the suit at the rate of Rs. 250/- each per mensem.
3. The parties are Hindus belonging to Nair community whose marriage was solemnised on 19-5-1967 in accordance with the customary rites and ceremonies Applicable to their community. After the marriage the parties lived as husband and wife in the ancestral houses of the petitioner and the respondent alternatively and also at plot No. 11 in Padma Nagar within Trivandrum City. In 1977 the appellant and the respondent shifted to a house referred to a 'Binushma' which was purchased for their use and occupation. Two children, a boy and girl were born out of their wedlock. The appellant was an Assistant Surgeon at the General Hospital, Trivandrum till he was relieved on 18-5-1978 on his transfer as the Medical Officer, Employees State Insurance Dispensary, Chathannoor, Quilon District. On 29-5-1979 the appellant entered on leave for a period of 120 days. According to him he did so with a view to make arrangements for the shifting of his family establishment from Trivandrum to Quilon and for putting the children at proper schools at Quilon. He further alleged that while the appellant was making such arrangements for shifting the family to Quilon, the respondent openly declared that she would not move out of Trivandrum. He also alleged that early in June, 1979 the respondent shifted her residence to plot No, 11. Padma Nagar in Trivandrum City. His further case is that the respondent refused to cohabit with the appellant in spite of the repeated requests for that purpose and therefore he was compelled to file O.P. (H.M.A.) No. 278/1979 for restitution of conjugal rights. As per order dated 18-4-1980 the learned 1st Addl. District Judge allowed the O.P. and a decree was passed directing the respondent to cohabit with the appellant. On 19-7-1980 the appellant caused a notice to be served on the respondent reminding her of her obligation to resume cohabitation with him in terms of the decree passed in O.P. (H.M.A.) 278/1979. The notice was served on the respondent but the respondent caused to send a reply notice on 2-8-1980 refusing to resume cohabitation with the appellant. It was averred that in the circumstances he was entitled to get a decree for divorce under Section 13( 1 A) (ii) of the Act.
4. The respondent resisted the petition and contended that while the appellant was working as a doctor at the Karamana Govt. Dispensary he was placed under suspension on 24-4-1980 and later was reinstated and was transferred to Chathanoor as Insurance Medical Officer and that though the appellant took charge as doctor at Chathannoor he has no intention to live at Chathannoor or to continue in his job at Chathannoor, or at any other place except Trivandrum city, and it was under those circumstances that the appellant entered on leave. According to the respondent the appellant did not resume duty either at Chathannoor or at Thannithode but continued to reside at Binushma in Trivandrum City. The respondent also averred that the appellant has at no time any intention to shift his family to Quilon or to any other place nor has he made any attempt to put the children at any of the schools at Quilon. The averment in the petition that early in June, 1979 she shifted to plot No. 11 Padmanagar, Fort at Trivendrum is false. The respondent was living at Binushma in Fort Trivandrum. She also contended that the appellant did not make any attempt to enforce the decree in O.P. (H.M.A..) 278/79 and the sole purpose of the appellant was to make use of that order to get a divorce. She also averred the facts set out in the lawyer's notice caused to be sent by the appellant on 19-7-1980 were wrong and the said notice was sent by the appellant while he was staying at Binushma but making it appear that he was staying at Thannithode. She also stated that a reading of the notice would indicate that the intention in sending the said notice was not to invite the respondent to resume cohabitation with the appellant but to prevent the respondent from alienating the building in plot No. 11 Fort, Trivandrum. She sent a suitable reply setting out the true facts. Since the appellant was willfully evading the company of the respondent even after the decree for restitution of conjugal rights it is clear that he was not at all willing to live with the respondent. The petition for restitution of conjugal rights itself was filed by the appellant with malicious intention of creating a ground for a decree of divorce, and the appellant should not be allowed to make use of his own wrong. It was also averred even before filing the petition for restitution of conjugal right the appellant himself prepared a divorce deed through a document writer and corrected himself and handed over the same for approval and signature, but the respondent refused to oblige the appellant. It was also alleged that the appellant was sending letters making false allegations while he was staying at Binushma demanding the respondent to go and live at Krishna Bhavan, Karikode and Suprakash, Koikkamukku Quilon and also at other fictitious places to which the appellant himself had no access. It was also alleged that the appellant was having illicit connection with one nurse by name Usha residing at Saradalayam, Chalakkuzhi lane Medical College, and the real intention of the appellant was to neglect the respondent and her children and to marry Usha after deserting them. She also stated in her objection that she was ready and willing to live with the appellant either in Plot No. 11 or at Binushma or at any other rented house where the respondent chooses to live with family. She further averred that there was resumption of cohabitation between the respondent and the appellant from 16-8-1980 for a period of four days. According to her, there was a mediation by her mother and uncle with the appellant as a result of which the respondent went to the house Binushma on 16-8-1980 in obedience to the decree for conjugal rights and stayed there till 19-8-1980, but the appellant forcibly got rid of the respondent and her children and locked the house. The appellant was adamant to get rid off the respondent and her children and that was why he has not attempted to execute the decree for restitution of conjugal rights.
According to her the appellant was simply waiting for the lapse of the statutory period of one year without making any bona fide attempts for reconciliation. In the circumstances, the appellant cannot be allowed to make use of his own wrong, by giving a decree for dissolution. She further contended that the provision contained in Section 23(1) (b) of the Act is a bar to the present application. On behalf of the appellant, besides himself PWs. 2 and 3 were examined and Exts. A1 to A5 were marked. On behalf of the respondent besides herself, CPWs. 2 and 3 were examined and Exts. B1 to B8 were marked.
6. The appellant has sought relief in this case, on the basis of Section 13(1 A) (ii) of the Act, Section 13(lA)(i) and (ii) reads as follows : --
13(1A). 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."
7. The learned counsel for the appellant contended that in the instant case a decree for restitution of conjugal rights was passed on 18-4-1980. But there was no restitution of conjugal rights between the parties for a period of more than one year after the passing of the decree and therefore the appellant was entitled to get a decree for divorce under Section 13(lA)(ii)of the Act. The learned counsel for respondent countered this argument by contending that even after the passing of the decree for conjugal rights the appellant has not made any attempt for consortium or any bona fide efforts to reconcile with the appellant and that the sole motive of the appellant in-obtaining the decree for conjugal rights was to seek for a divorce after the statutory period specified in Clause (11) of Section 13(1A) of the Act was over. He also argued that the respondent did not oppose the petition for restitution of conjugal rights and was always willing to go and live with her husband On the basis of these averments, the counsel for the respondent invoked the provisions of Section 23 of the Act, and contended that the effect of granting the relief of divorce to the appellant would be to permit him to take advantage of his wrong.
8. In order to appreciate the tenability of this contention, it would be convenient to quote the provisions contained in Section 23(1) (a) of the Act:
"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 any way taking advantage of his or her own wrong or disability for the purpose of such relief, xxx xxx xxx xxx then, in such a case, but not otherwise the court shall decree such relief accordingly."
9. The bone of contention of the learned counsel for the respondent is that even after the passing of the decree for restitution of conjugal rights, the appellant failed to make any attempt for consortium or for reconciliation and this would amount to "wrong" within the meaning of Clause (a) of Sub-section (1) of Section 23 of the Act.
10. Learned counsel for the appellant ventured to counter this argument by inviting our attention to Ext. A2, Ext. A2 is a lawyer's notice caused to be sent by the appellant to the respondent in which it was stated that the 1st Additional District Court, Trivandrum directed the respondent to reside with the appellant at Binushma but in spite of, the order she did not obey the order. It was also stated therein that the appellant was transferred to Thannithode Government Dispensary and therefore he wanted the respondent to stay with him at Thannithode and that he made adequate arrangement for putting the children in a boarding school at Quilon. It is further stated in the said notice that Plot No. 11, Padma Nagar, Fort, Trivandrum in which the respondent was staying belonged to the appellant even though the respondent managed to obtain the title deed in respect of the said plot No. 11 in her name by misrepresentation and fraud. The notice ends with a warning that she had been prohibited from alienating or creating any document in respect of 'Plot No. 11, Padmanagar, Fort, Trivandrum, without the written permission of the appellant. The respondent caused to send a reply to this notice in which it is stated that she was always prepared to reside with the appellant in. Trivandrum, but the appellant failed to, take her to Binushma, though she was residing in the house in Plot No. 11, Padma Nagar, Fort, Trivandrum within a distance of 200 feet from Binushma. It was also stated that the respondent was always ready to reside with the appellant in Binushma with her children, that the children were studying in Trivandrum and their studies should not be disturbed by putting the children at the boarding school at Quilon that the request made by the appellant to the respondent to stay at Thannithode was without any bona fides and made with ulterior motives. It was also stated that Plot No. 11 exclusively belonged to her and the allegation of misrepresentation and fraud contained in Ext. A2 letter was absolutely incorrect and was made with mala fides and ulterior motives and the appellant had no authority to prohibit her from alienating or creating any document in respect of the said property, since she had full authority to deal with the property as she liked. In her objection to the petition and also in the court, she reiterated that she was willing to resume cohabitation. We do not find any justification to doubt the bona fides of the respondents in making this submission. The learned counsel for the respondent further submitted that the real purpose of sending the lawyer's notice evidenced by Ext.A2 was to prevent her from selling the Plot No. 11 which stood in her name and the request contained in Ext. A2 to come and stay with him at Thannithode where he did not make any arrangement for stay by taking out a building for rent was absolutely, without any bona fides. There is substance in the contention put forward by the learned counsel for the respondent that the appellant had not made any effort to execute the decree for restitution of conjugal rights and Ext. A2 did not disclose a genuine, sincere and serious desire on the part of the appellant to resume cohabitation and the prime motive in issuing Ext.A2 was to prevent her from disposing of plot No. 11. No evidence has been adduced by the appellant to show that he had made any arrangement at Thannithode for stay of the respondent and children. We are generally in agreement with the learned counsel for the respondent that the tenor and temper of Ext. A2 letter do not exhibit any serious concern to re-establish cohabitation or to secure a reunion or to execute the decree for restitution he obtained from the court. In fact, in her reply Ext. A3, she had expressed her willingness to go and stay with him at Binushma at Trivandrum. We are also inclined to accept the submission of the learned counsel for the respondent that the respondent was always willing to cohabit and that was why she did not oppose a decree being passed for restitution of conjugal rights. But the question that arises for consideration is that the conduct of the appellant is sufficient to reject the relief sought by the appellant under Clause (ii) of Section 13(1A) of the Act. In other words, whether his inaction in not enforcing the decree for restitution of conjugal rights-or his lack of genuine desire for consortium or cohabitation in the circumstances of this case will amount to a "wrong" within the meaning of Section 23(1) (a) of the Act. Both sides have placed before us a few authorities to substantiate their respective contentions in this regard
11. In Smt. Saroj Rani v. Sudarshan Kumar Chadha (AIR 1984 SC 1562), a Similar question arose. In that case the respondent husband turned the wife out of Ms house and withdrew himself from her society. The wife filed a suit against the husband under Section 9 of the Hindu Marriage Act for restitution of conjugal rights in which a decree was passed granting the relief sought for. After the statutory period of one year was over the husband filed a petition under Section 13 of the Act for divorce on the ground that one year had passed from the date of passing the decree for restitution of conjugal rights, but no actual cohabitation had taken place between parties. The case of the wife that the husband had gone to the house of the wife and lived with her was not accepted by the court. It was contended in that case that it was due to the inaction of the husband that there was no resumption of cohabitation and this could amount to 'wrong' within the meaning of Section 23(1) (a) of the Act and therefore the husband was disentitled, to get a decree for divorce. Dealing with this argument, the Supreme Court observed as follows :
"10................It was sought to be urged that from the very beginning the husband wanted that decree for divorce should be passed. He therefore did not deliberately oppose the decree for restitution of conjugal rights. It was submitted on the other hand that the respondent/husband had with the intention of ultimately having divorce allowed the wife a decree for the restitution of conjugal rights knowing fully well that this decree he would not honour and thereby he misled the wife and the Court and thereafter refused to. cohabit with the wife and now, it was submitted, cannot be allowed to take advantage of his 'wrong'. There is, however, no whisper of these, allegations in the pleadings. As usual, on this being pointed out, the counsel prayed that be should be given an opportunity of amending his pleadings and, the parties, with usual plea, should not suffer for the mistake of the lawyers. In this case, however, there are insurmountable difficulties.
Firstly there was no pleading, secondly this ground was not urged before any of the courts below which is a question of fact, thirdly the facts pleaded and the allegations made by the wife in the trial court and before the Division Bench were contrary to the facts now sought to be urged in support of her appeal. The definite case of the wife was that after the decree for restitution of conjugal rights, the husband and wife cohabited for two days. The ground now sought to be urged is that the husband wanted the wife to have a decree for judicial separation (sic restitution of conjugal rights) by some kind of a trap and than not to cohabit with her and thereafter obtain this decree for divorce. This would be opposed to the facts alleged in the defence by the wife. Therefore quite apart from the fact that there was no pleading which is a serious and fatal mistake, there is no scope of giving any opportunity of amending the pleadings at this stage permitting the wife to make an inconsistent case. Counsel for the appellant sought to urge that the expression "taking advantage of his or her own wrongs" in Clause (a) of Sub-section (1) of Section 23 must be construed in such a manner as would not make the Indian wives suffer at the hands of cunning and dishonest husbands. Firstly even if there is any scope for accepting this broad, argument it has no factual application to this case and secondly if that is so then it Requires a legislation to that effect. We are therefore unable to accept the contention of counsel for the appellant that the conduct of the husband sought to be urged against him could possibly come within the expression his own wrong in Section 23(1) (a) of the Act so as to disentitle him to a decree for divorce to which he is otherwise entitled to as held by the courts below. Furthermore we reach this conclusion without any mental compunction because it is evident that for whatever be the reasons this marriage has broken down and the parties can no longer live together as husband and wife; if such is the situation it is better to close the chapter."
A similar question as arose in the instant case came up for consideration before the Supreme Court in Dharmendra Kumar v. Ushakumari, AIR 1977 SC 2218 = (1978)1 SCR 315.
Negativing the contention that inaction will amount to wrong within the meaning of Section 23(1)(a) of the Act, the Supreme Court observed thus: -
"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."
The Supreme Court affirmed the view taken by the Delhi High Court in Ram Kali v. Gopal Dass ILR (1971) 1 Delhi 6 (FB) and Gajna Devi v. Purshotam Giri AIR 1977 Delhi 178 that the expression "petitioner is not in any way taking advantage of his or her own wrong" in Section 23(1) (a) of the Act, does not apply to taking advantage of the statutory right to obtain dissolution of marriage which has been conferred on him by Section 13(1 A), after the passing of a decree for restitution of conjugal rights and in such a case the party is not taking advantage of his or her wrong, but the legal right following upon of the passing o the decree and the failure of the parties to comply with the decree or resume cohabitation thereafter. The Supreme Court in Saroj Rani's case (AIR 1984 SC 1562) pointed out that if such a conduct of the husband is intended to be treated as wrong, then it requires a legislation to that effect. We cannot rule out the possibility of a party obtaining a decree for restitution of conjugal rights and in not enforcing the same with the sole purpose of getting a divorce after the lapse of statutory period, but such an abuse can be prevented only by bringing necessary legislation plugging this device and it is certainly a matter which requires serious consideration of the Parliament. But as law stands now, we are helpless in the matter and can only grant relief as one naturally flowing from the fact that there was no restitution of conjugal rights for a period of more than one year after passing of the decree, if there is no acceptable, evidence to show that there was institution within the statutory period.
12. Learned counsel for the respondent has, however, brought to our notice the decision of the Andhra Pradesh High Court in Geeta Lakshmi v. G.V.R.K. Sarveswara Rao, AIR 1983 Andh Pra 111, of the Punjab High Court in Cap. B. R. Syal v. Smt. Ram Syal (AIR 1968 Punj and Har 489) and of the Calcutta High Court in Smt. Kanak Lata Ghose v. Amal Kumar Ghose, AIR 1970 Cal 328. In Geeta Lakshmi's case, AIR 1983 Andh Pra 111, the wife obtained a decree for restitution of conjugal rights and she went to her husband's place and lived for 15 days, that during that period she was ill-treated by her husband and mother-in-law and ultimately she was driven out from the house and she went to her parents' house. The Court held that after the decree the husband had not only not complied with the decree, but did positive acts by ill-treating her and finally drove her away from the house. On the basis of these facts, the Court held that it was not a mere non-compliance of the decree but fresh positive acts of wrong and therefore the respondent was not entitled to the relief under Section 13(1A) of the Act. In this case there is no evidence of positive ill-treatment after the decree was passed and therefore the above decision will not be helpful in any way to the respondent. The broad proposition laid down in Cap. B. R. Syal's case, AIR 1968 Punj and Har 489 cannot be considered to be good law in view of the Supreme Court decision referred to above and the Full Bench decision of the Punjab and Haryana High Court in Smt. Bimla Devi v. Singh Raj, AIR 1977 Punj and Har 167 which took theview that Section 23(1) cannot be invoked to refuse the relief under Section 13(lA)(ii) on the ground of non-compliance of a decree for restitution of conjugal rights for the statutory period. Similarly in the light of the authoritative pronouncement of the Supreme Court, it has to be held that Kanakalatha's case, AIR 1970 Cal 328 has not been correctly decided In view of the decisions of the Supreme Court referred to above, it cannot be held that the failure on the part of the appellant in this case in not enforcing the decree for restitution of conjugal rights will disentitle him from getting a decree for divorce under Section 13(lA)(ii) of the Act if there was no resumption of cohabitation between the appellant and the respondent for a period of one year or more after the passing of the decree for restitution of conjugal rights. As a matter of fact, the lower Court rightly held that there is no material in this case evidencing any conduct on the part of the appellant which would amount to a wrong within the meaning of Section 23(1)(a) of the Act, disentitling him to the relief of divorce.
13. Now we have to consider the question whether there was restitution of conjugal rights from 16-8-1980 for a period of 4 days as contended by the respondent. The respondent who was examined as CPW 1, in her evidence deposed that there was resumption of cohabitation for a short period of 4 days and during that period the appellant treated her with cruelty. The counsel for the appellant very seriously challenged the truth of the case put forward by the respondent that she had joined the appellant at Binushma on 16-8-1980. The evidence of CPW 2 was pressed into service by the counsel for respondent to substantiate the contention. CPW 2 is only a cousin of the respondent and he had no direct knowledge about the matter. Neither the mother nor the uncle who were stated to be instrumental for the mediation which led to the alleged resumption of cohabitation was examined in the case. In the circumstances, we are unable to subscribe to the view of the learned District Judge that in all probability the respondent might have made an attempt to comply with the decree for restitution of conjugal rights and there was a resumption of cohabitation between the parties in the sense that they occupied Binushma together after the decree for restitution was passed. Except the evidence of CPW 1 and CPW 2 which we have already referred to above, we find no material in support of the contention. Having regard to the background of the past conduct of the parties, we are unable to accept this part of the case of respondent in the absence of better materials, to substantiate the same. We, therefore, hold that there is no acceptable evidence to show that there was restitution of conjugal rights after the passing of the decree. That being the position, the appellant is entitled to get a decree for divorce under Section 13(lA)(ii) of the Act and accordingly a decree will be passed for divorce under the above section.
14. Learned counsel for the respondent contended before us that in the social Reality in the Indian Society a divorced wife would be materially at a great disadvantage. The counsel is fully justified in this submission. In the circumstances of this case, we shall follow the procedure adopted by the Supreme Court in Saroj Rani's case (AIR 1984 SC 1562) (supra) and direct that even after the final decree for divorce, the appellant-husband would continue to pay maintenance to the respondent-wife at the rate of Rs. 250/- per mensem until she remarries. It will be open to the parties to file proper application before the lower Court for variation of the order if circumstances change necessitating variation.
15. We shall next examine the challenge made by the appellant in A.S. 265 of 1986 in regard to the decree awarding maintenance at the rate of Rs. 250/- to the respondent in M.F. A. No. 444 of 1982. As pointed out earlier, the appellant has not challenged the maintenance awarded to the children. We have ordered that the appellant will continue to pay maintenance at the rate of Rs. 250/- to the respondent until she remarries. We have also passed a decree for divorce. In this appeal no ground has been made out to hold that the maintenance at the rate of Rs. 250/- awarded to the wife is in any way wrong or illegal. We have already held that it was on account of the conduct of the appellant that she was forced to live separately. Therefore we confirm the judgment and decree of the Court below in O.S. 552 of 1983.
In the result we allow M.F.A. as stated above and dismiss A.S. 265 of 1986. In the peculiar circumstances of the case, we will direct the appellant to pay the cost of the respondent in these cases which we fix at Rs. 2,500/-.