Anantha Padmanabhan @ BaluS/o. Srinivasan v. Sassicala

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 24-03-2008CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE K. CHANDRUC.M.A.NO.1588 OF 2002andC.R.P. (NPD) No.3748 OF 2007Anantha Padmanabhan @ BaluS/o. Srinivasan.. Appellant in C.M.A.NO.1588/02 / Petitioner in CRP.No.3748/07Vs.Sassicala,W/o. Anantha Padmanabhan.. Respondent in both CMA & CRPAppeal filed under Section 19(1) of the Family Courts Act,1984 against the judgment and decree dated 19.4.2002 made inM.O.P.No.164 of 2000, on the file of the Family Judge,Pondicherry.Revision filed under Article 227 of the Constitution of Indiaagainst the order dated 30.10.2007 made in I.A.No.321 of 2007 inO.P.No.54 of 2006, on the file of the Family Court at Pondicherry.For Appellant in CMA: Mrs. Sudarsana Sundar for& Petitioner in CRP Mrs.T. GirijaFor Respondent in both: Mr.V. Vijayashankar CMA & CRP.J U D G M E N TP.K. MISRA, JThe Civil Miscellaneous Appeal has been filed by theHusband under Section 28 of the Hindu Marriage Act,1956,hereinafter referring to as "the Act", challenging the decision ofthe Family Court, Pondicherry, rejecting MOP.No.164 of 2000seeking for divorce filed by him. https://hcservices.ecourts.gov.in/hcservices/ Civil Revision Petition has been filed by the husbandchallenging the order passed by the Family Court, Pondicherry inrejecting I.A.No.321 of 2007 in O.P.No.54 of 2006 seeking to setaside the order of dismissal passed in the Original Petition filedfor custody of the child. 2. M.O.P.No.164 of 2000 had been initiated by thehusband under Section 13(1A) of the Hindu Marriage Act on theallegation that, even though the wife had obtained a decree forrestitution of conjugal rights by judgment dated 24.12.1998 inMOP.No.123 of 1997, the wife was living away from the husband from20.6.1997 and she had not taken any steps to join the husbanddespite the court's order.3. A counter was filed by the wife, wherein it is statedthat the husband had ill-treated the wife and had ultimatelydeserted her and had not taken any steps to resume matrimonialhome inspite of the decree. It was further stated that since thehusband was at fault, he cannot take advantage of his own fault toseek divorce. 4. On the aforesaid pleadings, the Court had framed thefollowing issues :-"1. Whether there has been restitution of conjugal rights asbetween the parties for a period of one year after the passing ofdecree for restitution of conjugal rights ?2. Whether the petitioner is entitled for decree for divorceas prayed for ?3. To what relief is the petitioner entitled to ?5. The husband endorsed, no oral evidence and nodocument was marked from his side. The wife examined herself asR.W.1.The trial court on coming to the conclusion that thehusband was guilty of the disobedience of the direction issued,observed that the husband cannot take advantage of his own wrongto seek for divorce. Accordingly, such petition was rejected. 6. Learned counsel for the appellant has contended thatnotwithstanding the fact that a decree for restitution wasobtained by the wife, she had made no efforts whatsoever to getsuch decree executed nor made any efforts to rejoin the husband.In her reply also she had stated that there was no possibility ofresumption of matrimonial home. In such circumstances, when themarriage had irretrievably broken down, the court below should https://hcservices.ecourts.gov.in/hcservices/ have granted divorce. It is also contended that the husband wasnot trying to take advantage of his own fault as there is nothingto indicate that after the decree was passed there was anyconsensus default on the part of the husband.7. Learned counsel for the wife (Respondent) hassubmitted that even the subsequent efforts to unite the couple hasfailed and in case the court decides to grant divorce on thefooting that the marriage has broken down irretrievably, thenadequate provision should be made regarding permanent alimony forthe wife and the child. In this connection, learned counsel forthe respondent / wife has produced a copy of the salarycertificate of the appellant / husband. The contents of thesalary certificate was not disputed by the counsel for theAppellant.8. The following questions emerge for consideration :-(1) Whether a proceeding for divorce at the instance of thehusband against whom a decree for restitution of conjugal rightshas been issued on the ground that there has been no restitutionof conjugal rights as between the parties for a period of upwardsof one year, can be maintained ?(2) Whether it can be said that the husband was takingadvantage of his wrong ?(3) In case the divorce is granted, whether the court cangrant alimony or a separate proceeding is required to beinitiated?9. In the present case, it is evident that after thedecree for restitution of conjugal rights was passed, there hasbeen no restitution of conjugal rights as between the parties fora period of one year. It is of course true that the contention ofthe wife is to the effect that after such a decree was passed, thehusband has never made any efforts to allow the wife to stay withhim. Therefore, the husband is to be blamed. As against this, itis contended by the learned counsel for the husband that in factthe wife has not made any attempt to get the decree forrestitution executed as contemplated in law and, therefore, theentire blame is on the wife. Whether the husband was to be blamedor the wife has to be blamed or even to some extent both were tobe blamed, the fact remains that there has been no restitution ofconjugal rights as between the parties for a period of one yearafter the passing of decree for restitution of conjugal rights.Thus, one requirement of law relating to grant of decree isfulfilled. https://hcservices.ecourts.gov.in/hcservices/

10.Learned counsel for the respondent has, however,submitted that the decree for restitution of conjugal rights waspassed on the basis of the application filed by the wife and,therefore, the husband, who had the obligation to resumecohabitation by permitting the wife to stay with him, cannot claimdivorce on the ground that there has been no restitution ofconjugal rights as between the parties for a period of one yearafter the passing of decree for restitution of conjugal rights.11.While considering the aforesaid contention, it is tobe kept in mind, whether a spouse against whom a decree forrestitution of conjugal rights has been passed at the instance ofother spouse can at all have 'locus-standi' to claim divorce onthe ground that there has been no restitution of conjugal rightsas between the parties for a period of one year after the passingof decree for restitution of conjugal rights. Even though infirst blush one may tend to accept such a contention, a carefulreading of the provisions of the Hindu Marriage Act, particularlythe amendments thereof from time to time persuades us to come to aconclusion that it cannot be laid down that only the person, atwhose instance a decree for restitution of conjugal rights hadbeen granted, can claim divorce on the ground that there has beenno restitution of conjugal rights within the stipulated period.12. Section 13 of the Hindu Marriage Act, 1956 containsthe provisions relating to grant of divorce. Section 13, as itwas originally enacted, consisted of Section 13(1) and 13(2).Section 13(1) as it originally stood contemplated that anymarriage may be dissolved by a decree of divorce on a petitionpresented by either the husband or the wife on the ground that theother party had committed certain defaults or was suffering fromcertain serious types of illness. Section 13(2) contemplated thata wife may also present a petition for dissolution of the marriageon certain grounds. As per the original enactment, dissolution ofmarriage was contemplated based on "matrimonial default" or the"fault theory".Section 13(1) (viii) & (ix) before amendment were asfollows :-"13 (1) Any marriage solemnized, whether before orafterthe commencement of this Act may, on a petitionpresented by either the husband or the wife, bedissolved by a decree of divorce on the ground that theother party-(viii) has not resumed cohabitation for a space oftwo years or upwards after the passing of a decree forjudicial separation against that party; or https://hcservices.ecourts.gov.in/hcservices/ (ix) has failed to comply with a decree forrestitution of conjugal rights for a period of two yearsor upwards after the passing of the decree."13. As per such provision, a marriage could be dissolvedat the instance of a party, who had obtained a decree for judicialseparation on the ground that the other party had not resumedcohabitation for a period of two years. Similarly, under Section13(1)(ix), a person who had obtained a decree for restitution ofconjugal rights could sue for divorce on the ground that the otherparty had not complied with the decree for restitution of conjugalrights for a period of two years or more.14. Subsequently, amending the Section 13 by the HinduMarriage Act, 1964 (Act 44 of 1964), another sub section numberedas 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, whethersolemnized before or after the commencement of this Act,may also present a petition for the dissolution of themarriage by a decree of divorce on the ground -(i) that there has been no resumption ofcohabitation as between the parties to the marriage fora period of one year or upwards after the passing of adecree for judicial separation in a proceeding to whichthey were parties; or(ii) that there has been no restitution of conjugalrights as between the parties to the marriage for aperiod of one year or upwards after the passing of adecree for restitution of conjugal rights in aproceeding to which they were parties."15. Section 13(1A) thus contemplates that either party to amarriage may present a petition for dissolution of the marriage onthe ground that there was no resumption of cohabitation after thedecree for judicial separation or there was no restitution ofconjugal rights after the decree for restitution of conjugalrights for a period of two years. Subsequently, however, Section13(1A) has been further amended by Marriage Laws Amendment Act,1976 (Act 68/1976) whereunder the period of two years in Section13(1A)(i) and 13(1A)(ii) is reduced to one year. 16. Thus, a reading of these provisions indicate thatunder Section 13(1), either party to the marriage can present thepetition for dissolution of marriage on the ground that there wasdefault on the part of the other. Under Section 13(2), a wife canfile application for dissolution of marriage on the ground ofcertain defaults on the part of the husband. Similarly, under https://hcservices.ecourts.gov.in/hcservices/ Section 13(1A), the petition can be presented by either party tothe marriage on the ground of non-resumption of cohabitation for aperiod of one year after the decree for judicial separation ornon-restitution of conjugal rights for a period of one year aftersuch a decree for restitution of conjugal rights. While theemphasis under Sections 13(1) and 13(2) is on some fault of theother party, Section 13(1A) recognises dissolution of marriage onthe footing that marriage has broken down. Section 13(1A) doesnot contemplate that only the party who had obtained the decreefor judicial separation or the decree for restitution of conjugalrights can alone sue for dissolution of marriage on the groundthat there has been no resumption of cohabitation or on the groundthat there has been no restitution of conjugal rights. It is thusclear that either party to the marriage can sue for dissolution ofmarriage under Section 13(1A) on the ground that there has been norestitution of conjugal rights for a period of one year after sucha decree has been passed.17. However, the above does not mean that a party wouldbe allowed to take advantage of his or her own wrong. Forconsidering the above aspect, obviously one has to look to Section23 of the Act which lays down that in any proceeding under theAct, the Court must be satisfied that the ground for the reliefexists and the petitioner is not in any way taking advantage ofhis own wrong or default for claiming such relief.18. In this connection, the decision of the SupremeCourt in AIR 1977 SC 2218 (DHARMENDRA KUMAR v. USHA KUMAR) throwsconsiderable light. In the aforesaid case, the observation madeby the Delhi High Court in AIR 1977 DELHI 178 (GAJNA DEVI v.PURSHOTAM GIRI) to the following effect :-“Section 23 existed in the statue book prior to theinsertion of Section 13(1A) ..... Had Parliamentintended that a party which is guilty of a matrimonialoffence and against which a decree for judicialseparation or restitution of conjugal rights had beenpassed, was in view of Sec.23 of the Act, not entitledto obtain divorce then it would have inserted anexception to Section 13(1A) and with such exception, theprovision of Section 13(1A) would practically becomeredundant as the guilty party could never reap benefitof obtaining divorce, while the innocent party wasentitled to obtain it even under the statute as it wasbefore the amendment. Section 23 of the Act, thereforecannot be construed so as to make the effect ofamendment of the law by insertion of Section 13(1A)nugatory. https://hcservices.ecourts.gov.in/hcservices/ ... the expression “petitioner is not in any waytaking advantage of his or her own wrong” occurring inCl.(a) of S.23(1) of the Act does not apply to takingadvantage of the statutory right to obtain dissolutionof marriage which has been conferred on him by Sec.13(1A) ... In such a case, a party is not takingadvantage of his own wrong, but of the legal rightfollowing upon of the passing of the decree and thefailure 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 statedcorrectly in Ram Kali v. Gopal Das (ILR 1971 (1) Delhi6) (supra) and Gajna Devi v. Pourshotam Giri (AIR 1977Delhi 178) (supra). Therefore, it would not be veryreasonable to think that the relief which is availableto the spouse against whom a decree for restitution hasbeen passed, should be denied to the one who does notinsist on compliance with the decree passed in his orher favour. In order to be a 'wrong' within the meaningof Section 23(1)(a), the conduct alleged has to besomething more than a mere disinclination to agree to anoffer of reunion, it must be misconduct serious enoughto justify denial of the relief to which the husband orthe wife is otherwise entitled.”19. It is of course true that in the decision of theDelhi High Court in Gajna Devi's case, a petition was filed by thewife who herself had obtained the decree, but enunciation of lawso done by the Delhi High Court, which was approved by the SupremeCourt, clearly envisages that such petition could be filed byeither party to the marriage and not necessarily by the decree-holder only.20. The judgment of the Supreme Court in DharmendraKumar's case came to relied upon and followed in two subsequentSupreme Court's decisions. They are (1984) 4 SCC 90 (SAROJ RANI(SMT) v. SUDHARSHAN KUMAR CHADHA) and (2001) 4 SCC 125 (HIRACHANDSRINIVAS MANAGAONKAR v. SUNANDA).21. In the decision reported in Saroj Rani's case, thewife had filed the suit for conjugal rights and subsequently aconsent decree was passed for restitution of conjugal rights.Subsequently, on the ground that there has been no restitution ofconjugal rights for the requisite period, the husband filed thecase for obtaining divorce. Even though the trial court discardedthe claim of the wife that the wife had gone and stayed with thehusband for a few days, the trial court rejected the petition thatthe decree for restitution of conjugal rights had been passed onconsent and the husband was not entitled to a decree for divorce. https://hcservices.ecourts.gov.in/hcservices/ On appeal, the High Court by relying upon the decision of theSupreme Court in Dharmendra Kumar's case, negatived the contentionof the wife that the husband was taking advantage of his own wrongand granted a decree for divorce. On appeal by the wife with themain contention that the husband was trying to take advantage ofhis own wrong as he had not complied with the decree forrestitution of conjugal rights, the Supreme Court negatived theplea that the husband was trying to take advantage of his ownwrong. It is worthwhile to mention that the Supreme Court did notdiffer from the views expressed earlier in Dharmendra Kumar's casenor it was contended before the Supreme Court that only thedecree-holder of a decree for judicial separation or restitutionof conjugal rights could file such petition. Subsequently, in(2001) 4 SCC 125 (HIRACHAND SRINIVA MANAGAONKAR v. SUNANDA) , theSupreme Court, while taking note of the earlier decision inDharmendra Kumar's case, distinguished the same on facts but neverdisapproved of the ratio.22. In the light of the aforesaid decisions, it has tobe examined whether it can be said that the husband is takingadvantage of his own wrong. 23. It is of course true that the wife had filed thesuit for restitution of conjugal rights on the allegation that thehusband had deserted her. The very fact that a decree forrestitution of conjugal rights was passed obviously indicates thatthe husband was at fault. However, in the context in whichSection 23 of the Hindu Marriage Act has been incorporated, itcannot be said that such initial fault on the part of the husbandcan be the basis for coming to a conclusion that the husband wastrying to take advantage of his own wrong. What is required to befound is whether after the decree is passed, the person seekingdivorce is taking advantage of his own wrong. 24. In the present case, the wife, who obtained thedecree for restitution of conjugal rights, never tried to get suchdecree executed by initiating any execution proceedings. Ofcourse it is true that the husband has never volunteered to takeback the wife, but that by itself cannot be considered as such aconduct dis-entitling the husband to seek for divorce on theground that there has been no restitution of conjugal rights. Thedecree for conjugal rights had been obtained ex-parte, butthereafter there was no attempt to get such decree executed. Ifsuch execution having been levied, the husband would have refusedto resume cohabitation, we could have come to the conclusion thatthe husband was trying to take advantage of his own wrong. In theabsence of any such material on record, we are not in a positionto come to the conclusion that the husband was trying to takeadvantage of his own wrong when he sued for divorce on the ground https://hcservices.ecourts.gov.in/hcservices/ that there has been no restitution of conjugal rights for a periodof one year after the passing of the decree for restitution ofconjugal rights.25. Apart from the above, we have already indicated thateven the counsel for the wife has suggested that if the court isinclined to grant divorce, such decree can be granted subject toalimony being granted. It is also obvious from the fact thatseveral attempts for reconciliation had failed that the marriagehas broken down. Under such circumstances, it may not beappropriate on our part to reject the contention for grant ofdivorce and thereby prolong the agony for both the parties. 26. In this context, it can be noted that in severaldecisions of the Supreme Court, it has been laid down that wherethe marriage has irretrievably broken down, it would be alwaysmore appropriate to dissolve such marriage rather than prolongedthe agony of both the parties by refusing divorce on sometechnical ground or the other. As a matter of fact, in SarojRani's case, it was observed :-"9. ... Furthermore we reach this conclusionwithout any mental compunction because it is evidentthat for whatever be the reasons this marriage hasbroken down and the parties can no longer live togetheras husband and wife; if such is the situation it isbetter to close the chapter."27. Similarly in a recent decision reported in AIR 2006SC 1675 (NAVEEN KOHLI v. NEELU KOHLI), the Supreme Courtobserved:-"77. A law of divorce based mainly on fault isinadequate to deal with a broken marriage. Under thefault theory, guilt has to be proved; divorce courts arepresented concrete instances of human behavior as bringthe institution of marriage into disrepute.78. We have been principally impressed by theconsideration that once the marriage has broken downbeyond repair, it would be unrealistic for the law notto take notice of that fact, and it would be harmful tosociety and injurious to the interests of the parties.Where there has been a long period of continuousseparation, it may fairly be surmised that thematrimonial bond is beyond repair. The marriage becomesa fiction, though supported by a legal tie. By refusingto sever that tie the law in such cases do not serve thesanctity of marriage; on the contrary, it shows scantregard for the feelings and emotions of the parties.79. Public interest demands not only that the https://hcservices.ecourts.gov.in/hcservices/ married status should, as far as possible, as long aspossible, and whenever possible, be maintained, butwhere marriage has been wrecked beyond the hope ofsalvage, public interest lies in the recognition of thatfact.80. Since there is no acceptable way in which aspouse can be compelled to resume life with the consort,nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist."28. In such view of the matter, we are inclined to grantdivorce on the footing that there has been no there has been norestitution of conjugal rights as between the parties for a periodof one year after the passing of decree for restitution ofconjugal rights as well as on the ground that the marriageapparently has broken down.29. The next question is relating to grant of alimony.Learned counsel for the appellant has submitted that theprovisions contemplate that an application is required to be filedfor claiming alimony. However, the provision itself envisagesthat the Court granting divorce can grant alimony. In the contextin which such expression is used, we are inclined to hold that ina suit for divorce, at the time of granting divorce, the court maypass orders relating to alimony or custody of the child. However,where such alimony is not granted may be because there are noadequate materials or where enhanced alimony is claimedsubsequently on account of change of circumstances, the courtobviously would require pleadings on record for the purpose ofascertaining the proper alimony to be paid. 30. In the present case, we find that the wife hadalready sued for grant of maintenance and such appeal has beendealt with by us by a separate judgment. Therefore, it cannot besaid that the wife has not claimed any maintenance. However, inthe absence of any specific pleading or issue, all the materialsrequired for coming to a just conclusion is not on record. Incourse of hearing, the wife has produced a copy of the salarycertificate. Therefore, on the basis of the existing materials onrecord, we feel an adhoc amount can be fixed as payment ofmaintenance for the time being, leaving it open to the parties toseek for enhancement or reduction, as the case may be, by filingfurther application, if the circumstances so warrant and if theparties so desire.31. The next question is regarding the amount to befixed. By a separate judgment, we have confirmed the judgment ofthe trial court regarding payment of maintenance of Rs.800/- tothe wife and Rs.800/- to the child and even though we did not find https://hcservices.ecourts.gov.in/hcservices/ any reason to interfere with such order, we had already observedthat the amount awarded towards maintenance appears to be on lowerside. The existence of salary certificate, which was produced incourt by the wife, was not denied. The gross salary of thehusband is more than Rs.15,000/- per mensem. It was alsocontented by the counsel for the wife that wage negotiations aregoing on in the industry and the wages are likely to be increasedshortly. However, the husband claims that the wife is alsoemployed as a teacher, but the materials are lacking so far asthat aspect is concerned.32. Having regard to all the relevant facts andcircumstances and the materials available on record, we feelinterest of justice would be served by directing that the husbandis liable to pay a maintenance of Rs.1,800/- for the wife and asum of Rs.1,200/- per mensem for the son. These amounts are moreor less adhoc adjudication rendered with a view to avoid furtherunnecessary litigations. However, it is made clear that it wouldbe open to either party to seek for any increase or reduction, asthe case may be, by filing appropriate application before thetrial court. It would be always open to the parties to amicablysettle the question of maintenance or permanent alimony orotherwise approach the trial court for deciding the matter onjudicial side. It is made clear that the trial court is atliberty to deal with the matter notwithstanding the directiongiven by this Court which could be considered purely as an adhocmeasure in the facts and circumstances of the case.33. Next is the question raised in the Civil Revisioni.e., the custody of the child. The husband had filed theOriginal Petition claiming custody, but such petition wasdismissed for default and restoration petition having beenrejected, Civil Revision has been filed, which was also heardalong with the appeals. It is an admitted fact that the minor boyever since his birth was with his mother only and that the husbandhad not spent even one rupee toward his son.34. In course of hearing, it was suggested by us thatthe question of custody can be decided afresh by reviving theOriginal Petition, which has been dismissed for default. However,the learned counsel appearing for the husband stated that evenassuming that the child remains with the mother, the husband(father of the child) should be allowed visiting right. Learnedcounsel for the wife had also fairly submitted that appropriatedirection may be issued regarding visiting right so that there maynot be any further litigation in future. The child has remainedwith the mother for a considerable period. https://hcservices.ecourts.gov.in/hcservices/

35. Having regard to the facts and circumstances of thecase, we feel that the child should remain with the mother.However, the father of the child would be allowed to visit thechild on the first Sunday of every month. However, if such Sundayhappens to fall on a day within a fortnight of any impendingexamination in the class or by the Board, such right to visitwould stand postponed to the first Sunday after conclusion of suchexamination. It would be open to the father to visit the son bygoing to the place of the residence of the mother and the son andalso to take out the son for any outing for a maximum duration offour hours during any particular visit. This right to visit thechild would become enforceable only after the father gives anundertaking that after completion of the time as indicated above,the son would be left with the mother. Since there would be anundertaking, it is obvious that any violation can give rise toinitiation of appropriate contempt proceedings.36. For the aforesaid reasons, C.M.A.NO.1588 of 2002 isallowed to the extent indicated above and subject to thedirections regarding payment of maintenance. The CRP (NPD)No.3748 of 2007 is disposed of accordingly. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.dpkToThe Presiding OfficerFamily Court,Pondicherry.2 ccs to Mr.V. Vijay Shankar, Sr. 166002 ccs to Mr.T.Girija, Sr. 16127 CMA.1588/02 and CRP (NPD) No.3748 of 2007RL (CO)kk 14/5