Sangrami v. Inder Singh — 1983 DIGILAW 688 (ALL)

JUDGMENT Deoki Nandan, J. - This is a wife's first appeal from the decree dated 26th Apr. 1980 of the court of the District Judge dismissing her petition for divorce. The cause of action pleaded by the petitioner- appellant was that a decree for restitution of conjugal rights was passed against her on 19th Sept. 1977 in Matrimonial Suit No. 44 of 1976 of the court of the District Judge, Tehri Garhwal. The respondent did not thereafter come to call the petitioner appellant and there had been no resumption of co-habitation between the parties in spite of the said decree. The petition for divorce also mentions the fact that the petitioner had filed a petition for divorce against the respondent, which was Matrimonial Suit No. 21 of 1979 of the court of the District Judge, Tehri-Garhwal, but was dismissed on 21st Apr. 1979 and it was because of that suit that the petitioner could not immediately institute the suit giving rise to the present first appeal. The petition mentions the further fact that the petitioner has a son who was not begotten upon her by the respondent but was conceived when she was raped in a jungle by an unknown person and because of the shame she has not disclosed that fact even to her parents. 2. The defence was that the petitioner had illicit relations with one Kundan Singh son of Chharia who was living in the same house with the petitioner, and the son born to the petitioner was begotten by Kundan Singh, that after the decree for restitution of conjugal rights, the respondent went to the petitioner's place, on two occasions, to call her but she did not come and was prevented by four persons who were made co-defendants with the petitioner, in the suit for restitution of conjugal rights. It was further pleaded that after the dismissal of the petitioner's suit for divorce, she had shifted to Kundan Singh's house and was living with him as his wife. Lastly it was pleaded that the petitioner could not take advantage of her own wrong and was not entitled to the relief of divorce claimed by her. 3. The following were the issues on which the parties went to trial : 1. Lastly it was pleaded that the petitioner could not take advantage of her own wrong and was not entitled to the relief of divorce claimed by her. 3. The following were the issues on which the parties went to trial : 1. Whether there has been no resumption of cohabitation as between the parties to the marriage for a period of one year after the passing of decree in Civil Suit No. 44 of 1976 dated 19-9-1977? 2. Whether the petition is liable to be dismissed in view of the provisions of S. 23 of the Hindu Marriage Act as alleged by the respondent? 3. Whether the petitioner is leading an adulterous life? If so, its effect? 4. To what relief, if any, is the petitioner entitled? The trial court took up the first three issues together for consideration. After noticing the pleas of the parties, the trial court observed that the respondent had instituted an application for execution of the decree for restitution of conjugal rights which was dismissed on 18th July, 1978. That application for execution of the decree was directed against the petitioner, her parents and Kundan Singh with whom she was alleged to be living in adultery. According to the trial court : "The above execution application clearly shows that the respondent wanted to keep the petitioner with him but it was the petitioner who has been avoiding to go and live with the respondent her husband". The trial court then quoted clause (a) of sub-sec. (1) of S. 23 of the Hindu Marriage Act and observed that it clearly showed : "that if the petitioner wants to take advantage of his or her own laches or wrong etc. no relief should be granted to her. "In the instant case........ the petitioner has herself defaulted in refusing to go and resume cohabitation with the respondent for which he has been trying and therefore she is not entitled to the relief of divorce because she was herself defaulted as noted above." On the third issue, the trial court found that the petitioner was most probably living in adultery with Kundan Singh and her child, who was about years old, could not have been the result of the alleged rape for she stated in the witness-box that she was raped about one year ago. According to the trial court the suggestion was that the way barred by petitioner's child was begotten on her by petitioner's earlier Kundan Singh. It found "that most probably the petitioner is leading an adulterous life.... but this point is not directly material so far the petition of divorce is concerned. No doubt this shows that because the petitioner is living in adultery with someone else hence she has got no intention to comply with the decree of restitution of conjugal rights, obtained by the respondent against her. This also shows the wrong and laches of the petitioner herself and she could not be permitted under law to take advantage of her own laches.......The evidence on record clearly shows that the petitioner is herself in the wrong and the court will, therefore, not permit her to take advantage of her own laches". The trial court finally held :- "I am of opinion that the petitioner has failed to make out a case of divorce because she herself has been in the wrong while refusing to comply with the decree of restitution of conjugal rights and then leading adulterous life giving further support to the contention of the respondent that she is not prepared to comply with the decree". 3A. Ext. A-1 is the certified copy of the judgment dated 21st Apr. 1979 dismissing the earlier petition for Divorce Suit No. 21 of 1978 of the court of the District Judge, Tehri-Garhwal. Ext. A-2 is the certified copy of that petition which is dated 15th Feb. 1978. That petition was based on the ground that the respondent had voluntary sexual intercourse with one Jhakora after marriage. The court found that the petitioner was unable to establish that Inder Singh had any sexual relation with Jhakora. Ext. 4 is the certified copy of an order of the court of the District Judge, Tehri Garhwal in the said Divorce Suit No. 21 of 41978. That order shows that the petitioner's application for amendment of that divorce petition for adding the ground that more than one year had elapsed since the passing of the decree for restitution of conjugal rights on 19th Sep. 1977 (Sic) was dismissed because the cause of action was different, and the ground sought to be raised was not open to the petitioner when that divorce petition was filed. 1977 (Sic) was dismissed because the cause of action was different, and the ground sought to be raised was not open to the petitioner when that divorce petition was filed. These documents establish that the present petition for divorce which has given rise to this first appeal is not in any the dismissal of the divorce petition No. 21 of 1978. 4. Ext.2 is the certified copy of the order dated 18th May, 1978 dismissing the respondent's application for execution of the decree for injunction against Kunwar Singh and others that was passed in his favour in suit No. 44 of 1976. The execution application was dismissed with the finding that "there is no reliable evidence to show that the opposite parties had wilfully failed to obey the decree" and, therefore, the question of detaining them in civil prison or attaching their property does not arise. Ext.A-3 is the certified copy of the execution application which shows that execution was sought against Kunwar Singh. Smt. Sona, Shri Jabar Singh and Shri Kundan Singh, who were defendants Nos. 2, 3, 4 and 5. It was submitted by the learned counsel for the appellant that this finding is binding on the parties in the present suit and it cannot be said that the petitioner had wilfully failed to obey the decree for restitution of conjugal rights. The decree for restitution of conjugal rights was not sought to be enforced at all. It was the decree of injunction that was passed against defendants Nos. 2 to 5 restraining them from preventing the present petitioner "from restitution with" the present respondent vide judgment dated 19th Sept. 1977 in suit No. 44 of 1976 Ext. 1, that was sought to be enforced in that execution application. 5. The respondent was not represented and did not appear at the hearing of the appeal in spite of due service of notice of the appeal on him. Having heard Mr. S.N. Dayal for the petitioner-appellant and having seen the law declared by the Supreme Court in Dharmendra Kumar v. Usha Kumar, AIR 1977 SC 2218 I am of the opinion that the trial court went wrong in holding that the petitioner was not entitled to relief on the ground that she has failed to comply with the decree for restitution of conjugal rights. The other facts brought out in the pleadings of the parties and the material on the record clearly show that there has been an irretrievable break-down of the marriage between the parties. I may also observe that in spite of the decree for restitution of conjugal rights that was obtained by the respondent against the petitioner and his application for execution, it is not easily possible to accept the respondent's case that he genuinely or honestly wanted a restitution of conjugal rights by resumption of cohabitation with the petitioner, in view of his allegation that the petitioner was living in adultery with Kundan Singh and had even a son born of adulterous intercourse. It is against the common course of human nature for a husband to complain of adultery against his wife and yet want to live with her. Even in the suit for restitution of conjugal rights which was filed by the respondent against the petitioner, Kundan Singh was joined as defendant No. 5. It is not a case where Kundan Singh may have come on the scene after the decree for restitution of conjugal rights Indeed, the decree for restitution of conjugal rights which was passed in favour of the present respondent husband against the present petitioner also restrained Kundan Singh who was defendant No. 5, among other defendants, from preventing the present petitioner "from restituting with" the present respondent, and the application for execution of the decree of injunction that was passed against defendants Nos. 2 to 5 was dismissed. There is nothing on the record to show that the decree for restitution of conjugal rights was ever sought to be enforced by execution against the present petitioner. The finding of the trial court to the contrary is not correct in face of Ext. A-3 which is the certified copy of the execution application and Ext. 4 which is the certified copy of the order dismissing the same. 6. The basis on which the trial court proceeded does not, therefore, appear to be correct. The finding of the trial court to the contrary is not correct in face of Ext. A-3 which is the certified copy of the execution application and Ext. 4 which is the certified copy of the order dismissing the same. 6. The basis on which the trial court proceeded does not, therefore, appear to be correct. However, even assuming that the decree for restitution of conjugal rights had been obtained bona fide and the respondent was interested in restitution, of conjugal rights with the petitioner, the fact remains that there was no restitution of conjugal rights as between the parties for a period of one year or upwards after the passing of the decree for restitution of conjugal rights in suit No. 44 of 1976. That fact gave rise to a cause of action for divorce statutorily prescribed by clause (ii) of sub-sec. (1-A) of S. 13 of the Hindu Marriage Act which was introduced thereinto by Act No. 44 of 1964, though the period of two years prescribed thereby was `reduced to one year by Act No. 68 of 1976. 7. In Dharmendra Kumar v. Usha Kumar, AIR 1977 SC 2218 , the petition for divorce had been filed by the wife who had earlier obtained a decree for restitution of conjugal rights against her husband. The husband's defence was that there was no restitution of conjugal rights inasmuch as the wife did not respond to his attempts at resumption of cohabitation after the decree. He said, he wrote several registered letters and otherwise invited her to live with him, but she "refused to receive some of the letters and never replied to those which she received". Thus, according to the husband she "has herself prevented the restitution of conjugal rights she prayed for and now she seeks to make capital out of her own wrong." Holding that the allegation even if true was not "misconduct grave enough to disentitle the petitioner to the relief' she had asked for and had been granted by the trial court, namely, dissolution of marriage by a decree of divorce, the Supreme Court maintained the decree. The Supreme Court expressly approved the following observations of the Delhi High Court in Gajna Devi v. Purshotam Giri, AIR 1977 Delhi 178, and the statement of the law in the Full Bench decision of the Supreme Court given in Ram Kali v. Gopal Dass, ILR (1971) 1 Delhi 6, as correct (at Pp. 2219-20) : Section 23 existed in the statute book prior to the insertion of Section 13 (1 A) ...... Had Parliament intended that a party which is guilty of a matrimonial offence and against which a decree for judicial separation or restitution of conjugal rights had been passed, was in view of S. 23 of the Act, not entitled to obtain divorce then it would have inserted an exception to S. 13(1A) and with such exception, the provision of S. 13(1A) would practically become redundant as the guilty party could never reap benefit of obtaining divorce, while the innocent party was entitled to obtain it even under the Statute as it stood before the amendment. Section 23 of the Act, therefore, cannot be construed so as to make the effect of amendment of the law by insertion of S. 13(1A) nugatory ........ the expression `petitioner is not in any way taking advantage of his or her own wrong occurring in Cl. (a) of S. 23(1) 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 S. 13(1 A)..... In such a case, a party is not taking advantage of his own wrong, but of the legal right following upon the passing of the decree and the failure of the parties to comply with the decree". The Supreme Court added :....... 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 S. 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." 8. In order to be a `wrong' within the meaning of S. 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." 8. What conduct would be "misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled", the Supreme Court did not elaborate. It was left to the posterity to find that, mere disobedience of the decree is not enough, a disinclination to enforce it is also not enough, and the failure of the parties to resume cohabitation for a period of one year or upwards, in spite of the decree commanding them to resume cohabitation, is the very foundation of relief, the relief by way of dissolution of the unhappy marriage by a decree of divorce. The statutory period of waiting, for one year now in place of the original period of two years, is only to make sure that there is no possibility of resumption of cohabitation between the parties. In the case of a decree of judicial separation, although it is granted on proof of some such guilt or ground as would have entitled the petitioner straightway to divorce, only if he/she had asked for it, also entitles the party against whom the decree is passed to obtain a dissolution of the marriage by a decree of divorce, although it is he or she who had sinned, and the other party who had been signed against does not want a dissolution of the marriage. Here again a one year period of waiting is prescribed in order to make sure that there is no possibility of the parties coming together again. All these provisions unmistakably point to the adoption of "irretrievable breakdown of marriage" as the ultimate ground for dissolution of marriage by a decree of divorce. Here again a one year period of waiting is prescribed in order to make sure that there is no possibility of the parties coming together again. All these provisions unmistakably point to the adoption of "irretrievable breakdown of marriage" as the ultimate ground for dissolution of marriage by a decree of divorce. The concept of matrimonial guilt continues, but, if the parties agree, a marriage can now be dissolved even where there is no matrimonial guilt, by mutual consent under S. 13-B, and where the parties cannot even agree to disagree but it is provable that one party has withdrawn from conjugal society without reasonable excuse and the aggrieved party approaches the court and obtains a decree for restitution of conjugal rights, the other party can have the marriage dissolved only by showing that the parties have not resumed cohabitation for one year or more. 9. In view of the above position of the law, this appeal must succeed and is allowed. The judgment and decree of the trial court are set aside. The marriage between the parties is dissolved by a decree of divorce. There will be no order as to costs as the respondent did not appear -at the hearing.