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2000 DIGILAW 654 (MAD)

V. Sreedevi v. V. Varadarajan

2000-07-11

V.KANAGARAJ, V.S.SIRPURKAR

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Judgment :- V.S. SIRPURKAR, J. This appeal pertains to a decree of divorce passed in between the appellant v. Sreedevi and V. Varadarajan. They were married on 4-6-1971 at Secunderabad. Both of them are Hindus. V. Varadarajan filed H.M.O.P. No. 737 of 1992 for divorce on the ground of cruelty and desertion against the present appellant V. Sreedevi. That petition was allowed in part on 28-1-1992 wherein the husband was granted a decree for judicial separation. The said decree for judicial separation remained in force as it was not appealed against and the husband Varadarajan thus filed a further petition for a decree of divorce, which was registered as F.C.O.P. 938 of 1993. This was on the ground that the decree for judicial separation passed on 28-1-1992 had remained in force for one year therefore under Sec. 13 (1-A) the husband was entitled to the decree of divorce. The wife/appellant herein opposed this petition on various grounds alleging that it was the petitioner who was guilty of misbehaviour and that he had developed illicit relationship with one Dhanalakshmi and was ill-treating his wife. It was alleged that it was with the idea to give legal status to Dhanalakshmi that the present petition for divorce was filed by the husband. 2. Learned Trial Court did not accept the defence of the wife and proceeded to pass the decree of divorce, on the ground that the husband had become entitled to the same under Sec. 13(1-A) of the Hindu Marriage Act, as the decree for judicial separation between them, which was obtained by the husband himself had remained in force for more than one year. 3. It is this decree which is being challenged before us. Learned counsel appearing on behalf of the appellant wife has forcefully argued that in fact the husband was himself guilty of living in illegal intimacy with Dhanalakshmi and it was because of that the wife though she could have joined the company of the husband did not do so. In short, learned counsel contended that the husband in presenting a petition under Sec. 13 (1A) was taking advantage of his own wrong as contemplated under Sec. 23 (1) (a) of the Hindu Marriage Act and therefore, the trial Court should not have awarded the decree of divorce in his favour. In short, learned counsel contended that the husband in presenting a petition under Sec. 13 (1A) was taking advantage of his own wrong as contemplated under Sec. 23 (1) (a) of the Hindu Marriage Act and therefore, the trial Court should not have awarded the decree of divorce in his favour. Learned counsel also submits that since the decree earlier passed against her was only for judicial separation and not for divorce as prayed by the husband in fact, the wife could have joined the company of the husband in time and she did not do so because of the wavered behaviour on the part of the husband and therefore, the husband should not be allowed to take advantage of his wayward behaviour which prevented the wife joining his company. 4. Learned counsel appearing for the appellant very heavily relied on the provisions of Sec. 23 (1) (a). The provisions undoubtedly prevent any party from taking advantage of his/her own wrong and there can be no doubt that no party to a marital dispute can be allowed to take that advantage. However, the question here is as to whether the husband is taking advantage of his own wrong. According to us there is no question here in this case of the husband taking advantage of his own wrong. The husband is merely relying on a right created by the Statute by Sec. 13 (1-A) wherein the pendency of the decree for judicial separation for more than one year can be a valid ground for the decree of divorce. it has to be remembered that it was the husband who sued his wife for a decree of divorce. For one reason or the other that decree was not given, but he was certainly able to get the decree for judicial separation. This decree for judicial separation was based on his plea that his wife had been behaving in a cruel manner with him. Unfortunately for the appellant, wife has remained silent and did not challenge the decree, thereby in a way she has accepted the finding of the Court that she behaved in a cruel manner with husband. This decree for judicial separation was based on his plea that his wife had been behaving in a cruel manner with him. Unfortunately for the appellant, wife has remained silent and did not challenge the decree, thereby in a way she has accepted the finding of the Court that she behaved in a cruel manner with husband. Under such circumstances, such a decree which remained for more than one year and therefore has remained pending and within this one year if there is no marital resumption between the husband and the wife, the husband would certainly become entitled to pray for a decree of divorce. Such a view was expressed by Delhi High Court in the case of Ganga Devi v. Purshotam Giri reported in 1977 AIR(Delhi) 178 where the learned Judge in paragraph 15 has expressed that under such situation the husband does take advantage of his own wrong but utilises his right created under Sec. 13(1A). In that case, in fact, the decree was obtained by the wife against the husband and the husband was a losing party in the initial proceedings for restitution of conjugal rights. There, the husband after the decree remained pending for the periods specified in Sec. 13 (1A) applied for divorce and the Delhi High Court took the view as indicated earlier. This view has been approved by the Apex Court in the case of Dharmendra Kumar v. Usha Kumar reported in. The observations of the Delhi High Court in paragraph 15 have been approved by the Apex Court in paragraph 3 of the judgment. The following observations were of the Delhi High Court and were approved in that case by the Apex Court. The observations are to the following effect (at Page 2220) : "petitioner is not in any way taking advantage of his or her own wrong " occurring in clause (a) of Sec. 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 Sec. 13(1A) . . . . . . In such a case a party is not taking advantage of his own wrong, but of the legal right following upon of the passing of the decree and the failure of the parties to comply with the decree . . . . . . . . . . . In such a case a party is not taking advantage of his own wrong, but of the legal right following upon of the passing of the decree and the failure of the parties to comply with the decree . . . . . . ." The Supreme Court says "In our opinion that law has been stated correctly in Ram Kali v. Gopal Das, ILR 1971 Delhi 6 (FB) and Gajna Devi v. Purshotam Giri 1977 AIR(Delhi) 178." 5. Once this position is clear, then the wife cannot now raise a plea that she did not join the company of the husband because he was living with some other lady. In fact, that is not even the issue which has been framed by the trial Court and appellant, wife remained silent about the non-framing of such an issue. Be that as it may, here the situation is worse as the decree has been obtained by the husband for cruelty and the said decree remained in force for more than one year without the wife challenging any finding in that judgment. Under such circumstances, it cannot be said that the trial Court was wrong in granting the divorce relying upon the provisions under Sec. 13 (1A) of the Hindu Marriage Act, 1955. The appeal has no merits and is dismissed, but in the circumstances without any order as to costs. Appeal dismissed.