B.K. MEHTA

(1) A question of considerable importance but of some difficulty arises in this appeal whether the mere fact of non compliance by a husband of the decree for restitution of conjugal rights obtained by a wife would per se amount to taking advantage of his own wrong or disability so as to disable him from claiming the relief of divorce after lapse of two years of the said decree. The question arises in the following circumstances:

(2) The marriage of the petitioner husband with the respondent was solemnised on May 29 1967 at Ahmedabad. A son was born of this wedlock on March 6 1968 the respondent Wife filed Petition being Hindu Marriage Petition No. 66 of 1972 in the City Civil Court at Ahmedabad for a decree of restitution of conjugal rights under sec. 9 of the Hindu Marriage Act 1955 The Court granted the decree as prayed for by its order of September 24 1973 It is common ground that this decree was not complied with or satisfied by the petitioner husband who immediately thereafter left for United States and returned only after the expiry of two years. immediately after his return he filed an application for a de cree of divorce under sec. 13(1A)(ii) of the aforesaid Act.

(3) This petition was resisted by the respondent wife contending inter alia that the Court should not exercise its discretion by granting a decree of divorce as prayed for since the petitioner husband was trying to take advantage of his own wrong by intentionally avoiding the decree for restitution of conjugal rights passed in her favour.

(4) On the aforesaid pleadings The learned City Civil Judge raised necessary issues. On hearing the evidence of the parties the learned Judge after referring the relevant case law on the point and on appreciation of the evidence found that the petitioner husband had no intention after the decree of restitution of conjugal rights was passed to cohabit with the respondent and within a period of less than a month from the date of the decree the petitioner left for the United States and returned only five days before the present petition. No correspondence ensured between the parties while the petitioner was in States nor he furnished his address in States to the respondent wife. In that state of evidence the learned Judge was of the opinion that this conduct on the part of the petitioner husband amounted to taking advantage of the wrong committed by him and therefore the Court should not exercise its discretion as the case squarely fell within sec. 13(1A) (ii). The learned Judge therefore by his order of July 26 1976 dismissed the petition of the husband It is this judgment and decree which has been challenged in this First Appeal.

(5) The crux of the problem is whether the non satisfaction by a husband of the decree for restitution of conjugal rights obtained by a wife would per se amount to taking advantage of his own wrong which will disentitle him to a decree for divorce under sec 23. It is common ground that the petitioner husband applied for a decree of divorce because there had been no restitution of conjugal rights after passing of the decree in favour of the respondent wife herein on September 24 1973 This petition for divorce has been made under sec. 13 (1A) (ii) of the Hindu Marriage Act 1955 The said clause has been brought on the statute book by Hindu Marriage (Amendment) Act of 1964 which repealed clauses (viii) and (ix) of sub sec. (1) of sec. 13. The law as it stood before the amendment in 1964 entitled only a party aggrieved by non compliance of a decree for judicial separation or a decree for restitution of conjugal rights. After their repeal sub sec. (1A) has been brought on the statute book which now permits either party to marriage whether solemnized before or after the commencement of this Act to present a petition for dissolution of marriage by a decree of divorce on the ground of non resu mption of cohabitation 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 where there has been no restitution of conjugal rights between the parties to the marriage for a period of two years or upwards after the decree for restitution of conjugal rights. On the plain reading of the law as it stood before the amendment and after the amendment in 1964 the position becomes very clear that irrespective of the fault of the party to a decree for restitution of conjugal rights or a decree for judicial separation either party can present a petition for dissolution of marriage by a decree of divorce on the ground that the period of two years or more has elapsed without the decree in question being complied with or without cohabitation. The Legislature has wisely not amended sec. 23 of the Hindu Marriage Act after the repeal of Clauses (viii) and (ix) and substitution of sub-sec. (1A) in the statute book. The effect is that either party to the decree of judicial separation or restitution of conjugal rights can move the Court for dissolution of marriage by a decree of divorce irrespective of the consideration that who is at fault for noncompliances of the decree in question; remaining unsatisfied for a period of two years or upwards. The Court is still invested with a discretion to refuse such a decree if the conduct of the party applying for dissolution of the marriage is such that it would be permitting him to take advantage of his own wrong. No doubt the contention that if either of the spouse to the marriage who flouts the decree for restitution of conjugal rights for the statutory period of two years or more which may be a ground for the decree of divorce under the law is permitted to apply for dissolution of the marriage by such a decree it would be tantamount to giving premium for his own wrong and the Court must view such disobedience of the writs of the Court by penalising the party by refusing to give a decree for the dissolution of the marriage. This contention appears to have a great force in it and it had appealed to the Bombay High Court in Laxmibai Laxmichand Shah v. Laxmichand Ravaji Shah A.I.R. 1968 Bom 332 [LQ/BomHC/1967/51] where in a petition for divorce by a husband who had failed to satisfy the decree for restitution of conjugal rights obtained by a wife Chandrachud J took the view that there is no warrant in the language of sub- sec. (1A) of sec. 13 for holding that it confers an absolute or unrestricted right on a party to apply for and obtain a decree of divorce but it is obligatory on the Court to consider whether the provisions mentioned in sub-sec. (1) of sec. 23 are satisfied or not since sec. 23 is an overriding provision; and that in the facts and circumstances of the case before him there was a wilful default that the decree for restitution of conjugal rights remained unexecuted on account of wilful default on the part of the husband and. therefore he was not entitled to a decree for divorce. This view has also commended to the Punjab High Court in Chamanlal Chuni Lal v. Smt. Mohinder Devi A.I.R. 1968 Punjab 287 whore the husband having been found not making any effort to comply with the decree for restitution of conjugal rights obtained by his wife was held to he disentitled for a decree of divorce as his conduct amounted to taking advantage of his own wrong the Court refused to exercise the discretion to grant a decree for divorce under sec. 23(1) or the Hindu Marriage Act. 6 On the other hand in slightly different context of the husband refusing to cohabit with his wife for a period of two years or more after the decree for judicial separation being obtained by the wife on the ground of desertion the learned Single Judge of the Bombay High Court in Madhukar Bhaskar Sheorey v. Smt. Sarala Madhukar Sheorey A.I.R. 1973 Bom 55 [LQ/BomHC/1971/157] held that the husband is under no obligation to assure the other party that his previous cruelty would cease and that he would treat her well or to ask her to come and stay with him and A FORTIORI there cannot be any question of his being in the wrong by not carrying out such obligation such as to disentitle him to the relief of divorce. Justice Nain as he then was in that context noted the distinction between the ground available to an aggrieved party to the marriage for obtaining the relief of judicial separation viz the matrimonial offence of wrong or cruelty and the ground for obtaining the relief of divorce after the decree for judicial separation namely non-resumption of cohabitation for the statutory period. He emphasised the legislative recognition of rational underlying the amended sec. 13(1A) that the interest of the society is not served in keeping the parties tied down to each other when there is irreconcilable broken down of a marriage. He distinguished the decision of Justice Chandrachud in Laxmibai Laxmichand Shahs case (supra) by pointing out that what weighed with the Court in that case was not the conduct which led to the passing of decree for restitution of conjugal rights and what really impressed the Court was the conduct subsequent to the decree. He succinctly set out the rational which prompted the Legislature to put sub-sec. (1A) of sec. 13 on the statute book in 1964 in the following terms:

In my opinion when the Legislature amended sec. 13 in 1964 by deleting Clauses (viii) and (ix) of sec. 13(1) which gave right to apply for divorce only to the party in whose favour a decree for judicial separation or restitution of conjugal rights had been passed and not to the other party and by enacting sec. 13(1A) which conferred a right on both the parties the Legislature was giving expression to new and more liberal thinking on the subject of divorce The amended section provides for divorce where the prospect for reconciliation has faded which is evidenced by non-resumption of married life for two years or upwards after the decree for judicial separation or restitution of conjugal rights. The amendment takes note of the interest of the community in not maintaining a union which has utterly broken down and the interest of the petitioner as regards allowing him to remarry and live respectably. Sec. 13(1A) refers to existing state of affairs namely that in case of a decree for judicial separation there has been no resumption of cohabitation as between the parties to the marriage for a period of two years or upwards and in the case of a decree for restitution of conjugal rights there has been no restitution of conjugal rights for a period of two years or upwards The provision does not refer to a matrimonial offence or a wrong. It provides for maintenance of a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down and on preventing a party to the marriage from remarrying and living respectably. I have no doubt. That in granting relief under sec. 13(1A) the Court will and must take into consideration sec. 23(1) and consider the conduct of the petitioner subsequent to the passing of the decree of conjugal rights and not grant relief to a party who is taking advantage of his own wrong. It has however no reference to remedying the wrong which led to the decree for judicial separation or restitution of conjugal rights. (emphasis supplied by me)

A Division Bench of the Bombay High Court in Jethabhai Ratanshi Lodava v. Manabhai Jethabhai Lodava A.I.R. 1975 Bom. 88 [LQ/BomHC/1973/57] reversed the judgments of both the Courts below and held that the husband was entitled to get a decree for divorce since he was under no obligation to cohabit with the wife after the decree for judicial separation was granted. The Division Bench further held that by the change introduced by the Amendment Act of the concept of matrimonial wrong or disability as furnishing a ground for divorce although it continues to exist so far as sec. 13(1) is concerned stands excluded so far as the grounds in sec. 13(1A) are concerned. Nathwani J. speaking for the Division Bench observed in that connection as under:

.. No doubt aster a decree for judicial separation the parties or either of the mate may make attempts for reconciliation and even the Court is at the hearing of the petition for divorce enjoined in every case where it is possible so to do to make every endeavour consistently with the nature and circumstances of the case to bring about d reconciliation between the parties (see sec. 23(2) of the Act). But there is no obligation on either party to make any such attempt. The husband was not guilty of continuing to desert her. Both the Courts below took the view that the wrong of desertion had continued on the part of the husband as he had made no attempts to bring about a reunion with the wife. Mr. justice Gante held that after the passing of the decree of judicial separation the wife but not the husband was released from the obligation to cohabit. From his judgment however it does not appear that his attention was drawn to the non cohabitation provision in sec. 10(2) of the Act and the effect thereof on husbands obligation to cohabit with the wife. For the reasons already expressed the Courts below are in error in taking the view that the husband remained under the obligation to cohabit with the wife and was guilty of continuing to desert her and therefore of a wrong within sec. 23(1) of the Act.

Mukhi J. in his concurring opinion referred with approval the decision of Nain J. in Madhukar Bhaskar Sheoreys case (supra) that sec. 23(1) Will apply to a Case of petition under sec. 13(1A) and the Court must satisfy itself not only about the ground for granting the relief of divorce but also about the disability created by the petitioner by taking advantage of his own Wrong. He however found that the scope of application of sec. 23(1)(a) is limited in Such Circumstances. He said as under:

....But the scope of sec. 23(1)(a) in relation to the grounds for divorce as contained in sec. 13(1A) must in my opinion of necessity and logic be somewhat limited. It is not possible to envisage what kind of wrong or disability would have to be taken into consideration. Human ingenuity being what it is there is no doubt that many cases will arise where notwithstanding that a ground for divorce exists there may be something in the conduct of the petitioner which would be so reprehensible that the Court would deny to such a petitioner the relief by way of divorce on the consideration that the petitioner was taking advantage of his or her own wrong.

Mukhi J also advocated for constant changes in the law of divorce so as to keep it in tune with the times He therefore tried to reconcile seC. 23(1) With the amended Sec. 13(1)(a) of the Hindu Marriage Act by stating as under:

..If it was to be insisted upon that even after the marriage has practically broken down and an order for judicial separation has been made or for that matter a decree for restitution of conjugal rights then the petitioner would have to go throughout the pretence and mechanics of a purported reconciliation otherwise the Court would not be able to bring to an end an unhappy and illstarted union. It is true that the decision of this Court in A I R. 1968 Bombay 332 (supra) was based on the fact that the petitioner had defied a mandate of the Court by will non-compliance of a decree for restitution of conjugal rights it can never be unreasonable to say that defiance of a Courts order is at all times to be deprecated and frowned upon. But viewed in the light of modern society it would perhaps not be very realistic to expect a wife or a husband for that matter to resume cohabitation under the threat of a decree. In my view the only effect of a decree for restitution of conjugal rights is to fix the blame on the party primarily responsible for the break down of the marriage and then provide a period for reflection with the hope that a marriage which had foundered may still be redeemed. But once the parties have reached a stage of the ground contained in sec. 13(1A) it will require to be considered by the Court that a point of no return may have been reached at which stage a consideration as to who was to blame becomes irrelevant. It may be noted that whether non compliance of a decree for restitution of conjugal rights is a wrong which can be taken into consideration for the purpose of sec. 23(1) of the Act is also a matter on which there is some difference of judicial opinion. This High Court in A.I.R. 1968 Bombay 332 (supra) has held it to be so. But another High Court has held that failure to perform a decree for restitution of conjugal rights per se without more does not disentitle a spouse to relief under sec. 13(1A)(ii) of the Act.

(6) A Full Bench of Delhi High Court in Ram Kali v. Gopal Dass I.L.R. (1971) 1 Delhi 6 in similar facts where the husband though in default in complying the decree for restitution of conjugal rights obtained by wife had applied for divorce on the ground that there was no restitution of conjugal rights for a period of two years or upwards after the decree rejected this very contention that granting of decree of divorce to a defaulting husband would be tantamount to allowing him to take advantage of his own wrong and observed as under:

A decree for judicial separation or for restitution of conjugal rights necessarily presupposes 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- sec. (1A) are fulfilled. To non suit such a petitioner by invoking clause (a) of sub- sec. (s) of sec. 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 sec. 23(1)(a) in our opinion should be so construed that they operate in harmony with those of sec. 13(1A) rather than in such a manner as may have the effect of nullifying the change brought about by insertion of sub-sec. (1A) in sec. 13 of the Act. The underlying object of the legislature in inserting sub-sec. (1A) in sec. 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 Full Bench therefore confirmed the decree of divorce

(7) There are two decisions of our Court; one by A. D. Desai J. in Second Appeal No. 106 of 1974 decided on 22-9-1976 where the husband obtained a decree for restitution of conjugal rights and the wife having failed to comply with the decree for a period of two years or upward after the passing of the decree applied for dissolution of marriage by a decree of divorce. A. D. Desai J. in that context said that the relevant factor which the Court must bear in mind is the conduct of the party asking for the relief dissolution of the marriage subsequent to the passing of the decree for restitution of conjugal rights. He noticed particularly that neither the provisions of sec. 13(1A) nor sec. 23(1) (a) of the Act impose any obligation on a party applying for divorce to see that the decree for restitution of conjugal rights is satisfied. I do not think that this decision can be of much assistance because the learned Judge said in the Context of the facts before him.

(8) Another decision is of T.U. Mehra J. in First Appeal No. 481 of 1970 decided on February 16 1973 In that case the wife obtained a decree for judicial separation on the ground that after the solemnization of the marriage the husband had sexual intercourse with a person other than his spouse and since there was no cohabitation between the parties for a period of two years or upwards after the decree for judicial separation the husband applied for dissolution of marriage by decree of divorce. The learned Single Judge having regard to the admitted position that at the relevant time when the petition for divorce was made the husband continued to reside with his mistress and had two issues from that relationship. The learned Judge therefore found that the husband was trying to take advantage of his own wrong and therefore a decree for divorce was refused. This also again in terms of its own facts and therefore would not be of any assistance to the present problem with which I have been called upon to deal with.

(9) I am of the opinion that though sec. 13(1A) as amended in 1964 entitles even a defaulting party and not merely an aggrieved party to obtain dissolution of marriage by a decree of divorce if there is no cohabitation for a period of two years of upwards after the decree for judicial separation is passed or if the decree for restitution of conjugal rights is not complied with for the said period it is the duty of the Court to see under sec. 23(1) whether the petitioner under sec. 13(1A) is disabled by his conduct subsequent to the decree of judicial separation or decree of restitution of conjugal rights as the case may be which may again amount to taking advantage of his own wrong. The contention in the present case that non compliance of decree for restitution of conjugal rights per se amounts to such a wrong which would disentitle to a defaulting husband under sec. 23(1) is not well founded since it would have the effect of defeating the manifest legislative intent envisaged in the amendment made by bringing sub-sec. (1A) on the statute book after deleting Clauses (viii) and (ix) of sub-sec. (1) of sec. 13. It cannot be gainsaid that the legislature was very much aware of the provision of sec. 23(1) disabling a defaulting petitioner who tries to take advantage of his own wrong from obtaining a decree for divorce and inspite of such an awareness the statute was amended by deleting Clauses (viii) and (ix) and bringing sub-sec. (1A) on the statute book so as to entitle even a defaulting party to a marriage after passing the decree of judicial separation or restitution of conjugal rights as the case may be to obtain a decree for divorce if per se non-compliance of a decree for restitution of conjugal rights is to be considered as a wrong disentitling a defaulting party for obtaining a decree of divorce under sec. 23(1) the entire purpose of bringing sub-sec. (1A) on the statute book is lost. The Court has therefore got to reconcile the provisions contained in sec. 13 (1A) and sec. 13(1) of the Hindu Marriage Act and in such an attempt of reconciliation the Court has to bear in mind the well known principle of interpretation that the Court should always act on a broader construction for advancing the legislative intent rather than prefering a narrow meaning which may fail to effectuate the manifest legislative purpose. The background of the amendment the rational underlying therein the mischief intended to be eradicated are the apparent factors which the Court must bear In mind while exercising preference between the narrower and broader interpretation of a particular provision of a statute. Before the amendment in 1964 it was only the aggrieved party to a decree of a judicial separation or restitution of conjugal rights which was entitled to pray for dissolution of marriage by a decree of divorce. The legislature recognized the modern trend of the Society where on account of ever changing social economical and cultural concept of the community it decided to amend the law of divorce so as to keep it in tune with the change in times. In the ultimate analysis the framers of the law of marriage and divorce have to adopt a realistic and human approach and to compel the parties to stick to the fecade of marriage even though the union has completely broken down and where there is no scope for reconciliation to compel them to do so would amount to not only refusal to recognize a tragic fact of life but would also not serve the interest of the society as it would perpetuate the hypocrisy and illegal relationship for the unfortunate spouses. Viscounts Simon L. C. in Blunt v. Blunt 1942 All E.R. 76 recommended the considerations which should prevail with the Courts in matrimonial matters in the following terms:

... I would add a fifth of a more general character which must indeed be regarded as of primary importance viz. the interest of the community of large to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down. It is noteworthy that in recent years this last consideration has operated to induce the Court to exercise a favourable discretion in many instances where in an earlier time a decree would certainly have been refused...... It is no doubt with this spirit I am of the opinion that the recent amendment in 1964 has been brought in sub-sec. (1A) on the statute book. I think Justice Nain was right when he stated that the conduct which should weigh under sec. 23(1) cannot have reference to remitting the wrong which led to the decree for judicial separation or restitution of conjugal rights but it must be in the nature of subsequent conduct of the petitioner which may be so reprehensible or repulsive to the conscience of the Court that to grant a decree to such party committing such a wrong would be giving premium for such a wrong. In that view of the matter I am of the opinion that mere non-compliance with the decree of restitution of conjugal rights would per se not constitute such a conduct and in order that a defaulting party to a decree of restitution of conjugal rights is deprived of the benefit which is sought to be conferred on him under the amended sub-sec. (1A) of sec. 13 his subsequent conduct must not amount beyond mere noncompliance and must amount to a positive misconduct of such repulsive or of shocking nature as it can be said that he is trying to take advantage of his own wrong. This will be always a question of facts in each case.

(10) Applying this principle nothing has been found except the fact that the petitioner husband herein had left for United States after the decree for restitution of conjugal rights had been passed in favour of his respondent wife and that he arrived only few days before he applied for the dissolution of the marriage. This very fact in my opinion is sufficient to warn the Court that the marriage is founder and there was no scope for reconciliation. I also made an attempt to see that the parties come together but unfortunately this was of no avail. If merely the non- compliance of a decree of restitution of conjugal rights is not per se good defence under-sec. 23(1) as I have held above it is indeed the result is that the petitioner husband herein should get a decree for divorce by setting aside the judgment and decree of the trial Court.

(11) The result is that this appeal is allowed and the decree for divorce as prayed for is granted. As regards the permanent alimony to be paid to the unfortunate wife and son the parties have entered into compromise and the consent terms have been filed in accordance which an order for permanent alimony is to be made. The appeal is therefore allowed and the judgment and decree of the trial Court is set aside and a decree for divorce as prayed for is granted to the petitioner husband and the alimony is ordered to be paid as agreed upon between the parties. There should be no order as to costs in this appeal. The alimony amount is to be deposited in the Court by 14-3-1977 and will be paid to the wife on the Court passing the order on 15-4-1977.