P.K. Misra, J.@mdashThe civil miscellaneous appeal has been filed by the Husband u/s 28 of the Hindu Marriage Act, 1956, hereinafter referring to as "the Act", challenging the decision of the Family Court, Pondicherry, rejecting M.O.P. No. 164 of 2000 seeking for divorce filed by him. Civil Revision Petition has been filed by the husband challenging the order passed by the Family Court, Pondicherry in rejecting I.A. No. 321 of 2007 in O.P. No. 54 of 2006 seeking to set aside the order of dismissal passed in the Original Petition filed for custody of the child.
2. M.O.P. No. 164 of 2000 had been initiated by the husband u/s 13(1A) of the Hindu Marriage Act on the allegation that, even though the wife had obtained a decree for restitution of conjugal rights by judgment dated 24.12.1998 in MOP. No. 123 of 1997, the wife was living away from the husband from 20.06.1997 and she had not taken any steps to join the husband despite the Court''s order.
3. A counter was filed by the wife, wherein it is stated that the husband had ill-treated the wife and had ultimately deserted her and had not taken any steps to resume matrimonial home inspite of the decree. It was further stated that since the husband was at fault, he cannot take advantage of his own fault to seek divorce.
4. On the aforesaid pleadings, the Court had framed the following issues:
"1. Whether there has been restitution of conjugal rights as between the parties for a period of one year alter the passing of decree for restitution of conjugal rights?
2. Whether the petitioner is entitled for decree for divorce as prayed for?
3. To what relief is the petitioner entitled to?"
5. The husband endorsed, no oral evidence and no document was marked from his side. The wife examined herself as RW1. The trial Court on coming to the conclusion that the husband was guilty of tile disobedience of the direction issued, observed that the husband cannot take advantage of his own wrong to seek for divorce. Accordingly, such petition was rejected.
6. Learned counsel for the appellant has contended that notwithstanding the fact that a decree for restitution was obtained by the wife. She had made no efforts whatsoever to get such decree executed nor made any efforts to rejoin the husband. In her reply also she had stated that there was no possibility of resumption of matrimonial home. In such circumstances, when the marriage had irretrievably broken down, the Court below should have granted divorce. It is also contended that the husband was not trying to take advantage of his own fault as there is nothing to indicate that after the decree was passed there was any consensus default on the part of the husband.
7. Learned counsel for the wife (Respondent) has submitted that even the subsequent efforts to unite the couple has failed and in case the Court decides to grant divorce on the footing that the marriage has broken down irretrievably, then adequate provision should be made regarding permanent alimony for the wife and the child. In this connection, learned counsel for the respondent/wife has produced a copy of the salary certificate of the appellant/husband. The contents of the salary certificate was not disputed by the counsel for the Appellant.
8. The following questions emerge for consideration:
(1) Whether a proceeding for divorce at the instance of the husband against whom a decree for restitution of conjugal rights has been issued on the ground that there has been no restitution of conjugal rights as between the parties for a period of upwards of one year, can he maintained?
(2) Whether it can be said that the husband was taking advantage of his wrong?
(3) In case the divorce is granted, whether the Court can grant alimony or a separate proceeding is required to be initiated?
9. In the present case, it is evident that after the decree for restitution of conjugal rights was passed, there has been no restitution of conjugal rights as between the parties for a period of one year. It is of course true that the contention of the wife is to the effect that after such a decree was passed, the husband has never made any efforts to allow the wife to stay with him. Therefore, the husband is to be blamed. As against this, it is contended by the learned counsel for the husband that in fact the wife has not made any attempt to get the decree for restitution executed as contemplated in law and, therefore, the entire blame is on the wife. Whether the husband was to be blamed or the wife has to be blamed or even to some extent both were to be blamed, the fact remains that there has been no restitution of conjugal rights as between the parties for a period of one year after the passing of decree for restitution of conjugal rights. Thus, one requirement of law relating to grant of decree is fulfilled.
10. Learned counsel for the respondent has, however, submitted that the decree for restitution of conjugal rights was passed on the basis of the application filed by the wife and, therefore, the husband, who had the obligation to resume cohabitation by permitting the wife to stay with him, cannot claim divorce on the ground that there has been no restitution of conjugal rights as between the parties for a period of one year after the passing of decree for restitution of conjugal rights.
11. While considering the aforesaid contention, it is to be kept in mind, whether a spouse against whom a decree for restitution of conjugal rights has been passed at the instance of other spouse can at all have ''Iocus-standi'' to claim divorce on the ground that there has been no restitution of conjugal rights as between the parties for a period of one year after the passing of decree for restitution of conjugal rights. Even though in first blush one may tend to accept such a contention, a careful reading of the provisions of the Hindu Marriage Act, particularly the amendments thereof from time to time persuades us to come to a conclusion that it cannot be laid down that only the person, at whose instance a decree for restitution of conjugal rights had been granted, can claim divorce oh the ground that there has been no restitution of conjugal rights within the stipulated period.
12. Section 13 of the Hindu Marriage Act, 1956 contains the provisions relating to grant of divorce. Section 13, as it was originally enacted, consisted of Section 13(1) and 13(2). Section 13(1) as it originally stood contemplated that any marriage may be dissolved by a decree of divorce on a petition presented by either the husband or the wife on the ground that the other party had committed certain defaults or was suffering from certain serious types of illness. Section 13(2) contemplated that a wife may also present a petition for dissolution of the marriage on certain grounds. As per the original enactment, dissolution of marriage was contemplated based on "matrimonial default" or the "fault theory".
Section 13(1) (viii) and (ix) before amendment were as follows:
"13(1) Any marriage solemnized, whether before or after the commencement of this Act may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(viii) has not resumed cohabitation for a space of two years or upwards after the passing of a decree for judicial separation against that party; or
(ix) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree."
13. As per such provision, a marriage could be dissolved at the instance of a party, who had obtained a decree for judicial separation on the ground that the other party had not resumed cohabitation for a period of two years. Similarly, u/s 13(l)(ix), a person who had obtained a decree for restitution of conjugal rights could sue for divorce on the ground that the other party had not complied with the decree for restitution of conjugal rights for a period of two years or more.
14. Subsequently, amending the Section 13 by the Hindu Marriage Act, 1964 (Act 44 of 1964), another sub section numbered as Section 13(1A) was inserted, while Sections 13(1)(viii) and (ix) were deleted. Section 13(1A) is 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."
15. Section 13(1A) thus contemplates that either party to a marriage may present a petition for dissolution of the marriage on the ground that there was no resumption of cohabitation after the decree for judicial separation or there was no restitution of conjugal rights after the decree for restitution of conjugal rights for a period of two years. Subsequently, however, Section 13(1A) has been further amended by Marriage Laws Amendment Act, 1976 (Act 68 of 1976) where under the period of two years in Section 13(1A)(i) and 13(1A)(ii) is reduced to one year.
16. Thus, a reading of these provisions indicate that under Sect ion 13(1), either party to the marriage can present the petition for dissolution of marriage on the ground that there was default on the part of the other. u/s 13(2), a wife can file application for dissolution of mirriage on the ground of certain defaults on the part of the husband. Similarly, u/s 13(1A), the petition can be presented by either party to the marriage on the ground of non-resumption of cohabitation for a period of one year after the decree for judicial separation or non-restitution of conjugal rights for a period of one year after such a decree for restitution of conjugal rights. While the emphasis under Sections 13(1) and 13(2) is on some fault of the other party, Section 13(1 A) recognises dissolution of marriage on the footing that marriage has broken down. Section 13(1A) does not contemplate that only the party who had obtained the decree for judicial separation or the decree for restitution of conjugal rights can alone sue for dissolution of marriage on the ground that there has been no resumption of cohabitation or on the ground that there has been no restitution of conjugal rights. It is thus clear that either party to the marriage can sue for dissolution of marriage u/s 13(1A) on the ground that there has been no restitution of conjugal rights for a period of one year after such a decree has been passed.
17. However, the above does not mean that a party would be allowed to take advantage of his or her own wrong. For considering the above aspect, obviously one has to look to Section 23 of the Act which lays down that in any proceeding under the Act, the Court must be satisfied that the ground for the relief exists and the petitioner is not in any way taking advantage of his own wrong or default for claiming such relief.
18. In this connection, the decision of the Supreme Court in
"Section 23 existed in the statue book prior to the insertion of Section 13(1A)
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 Section 23 of the Act, not entitled to obtain divorce then it would have inserted an exception to Section 13(1 A) and with such exception, the provision of Section 13(1 A) 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 was 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 Section 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(l) 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..."
was specifically approved by the Supreme Court, which observed :
"3.... In our opinion the law has been stated correctly in Ram Kali v. Gopal Das ILR 1971(1) Del 6 (supra) and
(supra). Therefore, 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(l)(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."
19. It is of course true that in the decision of the Delhi High Court in Gajna Devi v. Purshotam Giri (supra) case, a petition was filed by the wife who herself had obtained the decree, but enunciation of law so done by the Delhi High Court, which was approved by the Supreme Court, clearly envisages that such petition could be filed by either party to the marriage and not necessarily by the decree-holder only.
20. The judgment of the Supreme Court in Dharmendra Kumar v. Usha Kumar (supra) case came to relied upon and followed in two subsequent Supreme Court''s decisions. They are
21. In the decision reported in Saroj Rani (Smt) v. Sudharshan Kumar Chadha (supra) case, the wife had filed the suit for conjugal rights and subsequently a consent decree was passed for restitution of conjugal rights.. Subsequently, on the ground that there has been no restitution of conjugal rights for the requisite period, the husband filed the case for obtaining divorce. Even though the trial Court discarded the claim of the wife that the wife had gone and stayed with the husband for a few days, the trial Court rejected the petition that the decree for restitution of conjugal rights had been passed on consent and the husband was not entitled to a decree for divorce. On appeal, the High Court by relying upon the decision of the Supreme Court in Dharmendra Kumar v. Usha Kumar (supra) case, negatived the contention of the wife that the husband was taking advantage of his own wrong and granted a decree for divorce. On appeal by the wife with the main contention that the husband was trying to take advantage of his own wrong as he had not complied with the decree for restitution of conjugal rights, the Supreme Court negatived the plea that the husband was trying to take advantage of his own wrong. It is worthwhile to mention that the Supreme Court did not differ from the views expressed earlier in Dharmendra Kumar v. Usha Kumar (Supra) case nor it was contended before the Supreme Court that only the decree-holder of a decree for judicial separation or restitution of conjugal rights could file such petition. Subsequently, in Hirachand Srinivas Managaonkar v. Sunanda (supra), the Supreme Court, while taking note of the earlier decision in Dharmendra Kumar v. Usha Kumar (supra) case, distinguished the same on facts but never disapproved of the ratio.
22. In the light of the aforesaid decisions, it has to be examined whether it can be said that the husband is taking advantage of his own wrong.
23. It is of course true that the wife had filed the suit for restitution of conjugal rights on the allegation that the husband had deserted her. The very fact that a decree for restitution of conjugal rights was passed obviously indicates that the husband was at fault. However, in the context in which Section 23 of the Hindu Marriage Act has been incorporated, it cannot be said that such initial fault on the part of the husband can be the basis for corning to a conclusion that the husband was trying to take advantage of his own wrong. What is required to be found is whether after the decree is passed, the person seeking divorce is taking advantage of his own wrong.
24. In the present case, the wife, who obtained the decree for restitution of conjugal rights, never tried to get such decree executed by initiating any execution proceedings. Of course it is true that the husband has never volunteered to take back the wife, but that by itself cannot be considered as such a conduct disentitling the husband to seek for divorce on the ground that there has been no restitution of conjugal rights. The decree for conjugal rights had been obtained ex-parte, but thereafter there was no attempt to get such decree executed. If such execution having been levied, the husband would have refused to resume cohabitation, we could have come to the conclusion that the husband was trying to take advantage of his own wrong. In the absence of any such material on record, we are not in a position to come to the conclusion that the husband was trying to take advantage of his own wrong when he sued for divorce on the ground that there has been no restitution of conjugal rights for a period of one year after the passing of the decree for restitution of conjugal rights.
25. Apart from the above, we have already indicated that even the counsel for the wife has suggested that if the Court is inclined to grant divorce, such decree can be granted subject to alimony being granted. It is also obvious from the fact that several attempts for reconciliation had failed that the marriage has broken down, Under such circumstances, it may not be appropriate on our part to reject the contention for grant of divorce and thereby prolong the agony for both the parties.
26. In this context, it can be noted that in several decisions of the Supreme Court, it has been laid down that where the marriage has irretrievably broken down, it would be always more appropriate to dissolve such marriage rather than prolonged the agony of both the parties by refusing divorce on some technical ground or the other. As a matter of fact, in Saroj Rani (Smt) v. Sudharshan Kumar Chadha (supra) case, it was observed
"9.... 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."
27. Similarly in a recent decision in
"73. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce Courts are presented concrete instances of human behavior as bring the institution of marriage into disrepute.
74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases do not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.
76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist."
28. In such view of the matter, we are inclined to grant divorce on the footing that there has been no restitution or conjugal rights as between the parties for a period of one year after the passing of decree for restitution of conjugal rights as well as on the ground that the marriage apparently has broken down.
29. The next question is relating to grant of alimony. Learned counsel for the appellant has submitted that the provisions contemplate that an application is required-to be filed for claiming alimony. However, the provision itself envisages that the Court granting divorce can grant alimony. In the context in which such expression is used, we are inclined to hold that in a suit for divorce, at the time of granting divorce, the Court may pass orders relating to alimony or custody or the child. However, where such alimony is not granted may be because there are no adequate materials or where enhanced alimony is claimed subsequently on account of change of circumstances, the Court obviously would require pleadings on record for the purpose of ascertaining the proper alimony to be paid.
30. In the present case, we find that the wife had already sued for grant of maintenance and such appeal has been dealt with by us by a separate judgment. Therefore, it cannot be said that the wife has not claimed any maintenance. However, in the absence of any specific pleading or issue, all the materials required for coming to a just conclusion is not on record. In course of hearing, the wife has produced a copy of the salary certificate. Therefore, on the basis of the existing materials on record, we feel an ad hoc amount can be fixed as payment of maintenance for the time being, leaving it open to the parties to seek for enhancement or reduction, as the case may be, by filing further application, if the circumstances so warrant and if the parties so desire.
31. The next question is regarding the amount to be fixed. By a separate judgment, we have confirmed the judgment of the trial Court regarding payment of maintenance of Rs. 800/- to the wife and Rs. 800/- to the child and even though we did not find any reason to interfere with such order, we had already observed that the amount awarded towards maintenance appears to be on lower side. The existence of salary certificate, which was produced in Court by the wife, was not denied. The gross salary of the husband is more than Rs. 15,000/- per mensem. It was also contented by the counsel for the wife that wage negotiations are going on in the industry and the wages are likely to be increased shortly. However, the husband claims that the wife is also employed as a teacher, but the materials are lacking so far as that aspect is concerned.
32. Having regard to all the relevant facts and circumstances and the materials available on record, we feel interest of justice would be served by directing that the husband is liable to pay a maintenance of Rs. 1,800/- for the wife and a sum of Rs. 1,200/ - per mensem for the son. These amounts are more or less ad hoc adjudication rendered with a view to avoid further unnecessary litigations. However, it is made clear that it would be open to either party to seek for any increase or reduction, as the case may be, by filing appropriate application before the trial Court. It would be always open to the parties to amicably settle the question of maintenance or permanent alimony or otherwise approach the trial Court for deciding the matter on judicial side. It is made clear that the trial Court is at liberty to deal with the matter notwithstanding the direction given by this Court which could be considered purely as an ad hoc measure in the facts and circumstances of the case.
33. Next is the question raised in the civil revision i.e., the custody of the child. The husband had filed the Original Petition claiming custody, but such petition was dismissed for default and restoration petition having been rejected, civil revision has been filed, which was also heard along with the appeals. It is an admitted fact that the minor boy ever since his birth was with his mother only and that the husband had not spent even one rupee toward his son.
34. In course of hearing, it was suggested by us that the question of custody can be decided afresh by reviving the original petition, which has been dismissed for default. However, the learned counsel appearing for the husband stated that even assuming that the child remains with the mother, the husband (father of the child) should he allowed visiting right. Learned counsel for the wife had also fairly submitted that appropriate direction may be issued regarding visiting right so that there may not be any further litigation in future. The child has remained with the mother for a considerable period.
35. Having regard to the facts and circumstances of the case, we feel that the child should remain with the mother. However, the father of the child would be allowed to visit the child on the first Sunday of every month. However, if such Sunday happens to fall on a day within a fortnight of any impending examination in the class or by the Board, such right to visit would stand postponed to the first Sunday after conclusion of such examination. It would be open to the father to visit the son by going to the place of the residence of the mother and the son and also to take out the son for any outing for a maximum duration of four hours during any particular visit. This right to visit the child would become enforceable only after the father gives an undertaking that after completion of the time as indicated above, the son would be left with the mother. Since there would be an undertaking, it is obvious that any violation can give rise to initiation of appropriate contempt proceedings.
36. For the aforesaid reasons, C.M.A.No. 1588 of 2002 is allowed to the extent indicated above and subject to the directions regarding payment of maintenance. The C.R.P. (NPD) No. 3748 of 2007 is disposed of accordingly.
