Kerala High Court · 2009

P.R. RAMAN & C.T. RAVIKUMAR, JJ.----------------------------------------------------------------M..F.A.NO. 950 OF 2002----------------------------------------------------------------Dated this the 4th day of February, 2009.JUDGMENTRavikumar, J.The petitioner - husband in O.P. No.50 of 2001 on the file of theFamily Court, Kozhikode is the appellant herein. The said OriginalPetition was filed under Section 13(1A)(ii) of the Hindu Marriage Act,1955 (hereinafter referred to as "the Act") for divorce. The admitted factsare as follows: The marriage between the appellant and the respondent whobelong to Hindu Ezhava community was solemnised on 24.5.1991. Afterthe marriage, they lived together only for a very short period of two and ahalf months. A male child was born in the wedlock and he is residing withthe respondent. 2. With respect to what had happened subsequent to the saidperiod of two and a half months, there are conflicting versions by theappellant and the respondent. According to the appellant, he left for Gulfafter the said period and thereafter, the respondent was taken to her housefor delivery in December, 1991. When he returned from Gulf inDecember, 1994, the parents of the respondent did not permit her to stay M.F.A. NO. 950/20022with him. In the year 1995, the respondent herein had filed O.P. No.61 of1995 before the Family Court, Kozhikode under Section 9 of the Act forrestitution of conjugal rights. The said Original Petition was allowed on14.7.1997 with a direction to resume cohabitation within two months fromthe date of the judgment. In the year 1996, the respondent filed M.C.No.109 of 1996 seeking maintenance for the child and that was alsoallowed on mutual consent. Subsequent to the passing of the decree inO.P. No. 61 of 1995, the respondent - wife did not resume cohabitationdespite several attempts on the part of the appellant. The respondent hadno genuine intention to resume cohabitation and they are residingseparately for the last 9 1/2 years. It was with the aforesaid allegationsthat the appellant herein filed O.P. No.50 of 2001 for dissolution of theirmarriage by a decree of divorce. 3. The respondent contested the matter contending that it was theappellant who stood against the resumption of cohabitation pursuant to thedecree in O.P. No.61 of 1995. In the counter affidavit, she hadspecifically expressed her willingness to live with the appellant-petitioner.She had also stated therein that after the appellant left for Gulf, she wassubjected to mental torture by his parents during her stay at his house.Considering the aforesaid conflicting versions, the Family Court M.F.A. NO. 950/20023formulated the point as to 'whether the petitioner is entitled to get a decreeof divorce' for consideration.4. The evidence in this case consists of the oral testimonies ofPW.1 and RW.1. Exts.A1 to A4 were marked on the side of the petitioner.The Family Court considered the entitlement of the appellant herein toget a decree of divorce under Section 13(1A)(ii) of the Act in the light ofSection 23(1)(a) of the Act. In order to appreciate the contentions, it isnecessary and profitable to refer to the aforesaid provisions of the Act andthey read as follows:"13(1A) Either party to a marriage, whethersolemnized before or after the commencement ofthis Act, may also present a petition for thedissolution of the marriage by a decree of divorceon the ground--(i) xx xx xx xx xx(ii) that there has been no restitution ofconjugal rights as between the parties to themarriage for a period of one year or upwardsafter the passing of a decree for restitution ofconjugal rights in a proceeding to which theywere parties.""23. Decree in proceedings.--(1) In anyproceeding under this Act, whether defended ornot, if the court is satisfied that, - M.F.A. NO. 950/20024(a) any of the grounds for granting reliefexists and the petitioner except in cases where therelief is sought by him on the ground specified insub-clause (a), sub-clause (b) or sub-clause (c) ofclause (ii) of Section 5 is not in any way takingadvantage of his or her own wrong or disabilityfor the purpose of such relief."5. Evidently, the Original Petition was filed after the stipulatedperiod under Section 13(1A)(ii) of the Act. To sustain the ground fordissolution of marriage by a decree of divorce and to establish that he isentitled to get divorce under Section 13(1A)(ii) of the Act notwithstandingSection 23(1)(a) of the Act, he relied on various decisions. His attemptwas to canvass the position that in order to be a 'wrong' within themeaning of Section 23(1)(a) of the Act so as to disentitle for a decree ofdivorce, the conduct alleged has to be something more than a meredisinclination to agree to an offer of reunion. According to him, it mustbe a misconduct serious enough to justify the denial of the relief. Tobuttress the said point, the appellant - petitioner relied on the decisions ofthe Honourable Apex Court reported in Dharmendra Kumar v. UshaKumar (1977) 4 SCC 12 and Saroj Rani v. Sudarshan KumarChadha (1984) 4 SCC 90. The appellant has also relied on the decisionof this Court in Radhakumari v. Dr. K.M.K. Nair reported in AIR1988 Kerala 235. In that decision, it was held that the failure on the partof the husband in not enforcing the decree for restitution of conjugal rights M.F.A. NO. 950/20025will not disentitle him from getting a decree for divorce under Section 13(1A)(ii) of the Act if there was no resumption of cohabitation betweenthe parties for a period of one year or more after the passing of the decreefor restitution of conjugal rights. It was further held therein that there wasno material for evidencing any conduct on the part of the appellant-husband therein which would amount to a wrong within the meaning ofSection 23(1)(a) of the Act disentitling him to the relief of divorce.6. While considering the scope of Section 13(1A) of the Act, theFamily Court referred to the decision of the Honourable Apex Courtreported in Hirachand Srinivas Managaonkar v. Sunanda, A.I.R. 2001S.C. 1285. It was held therein that the section does not provide that oncethe applicant makes an application alleging fulfillment of one of theconditions specified therein, the court has no alternative but to grant adecree of divorce and that such an interpretation of the section will runcounter to the provisions of Section 23(1)(a) or (b) of the Act. Thedecision in Dharmendra Kumar v. Usha Kumar was also referred. Itwas held that the said decision should not be read to be laying a generalprinciple that the petitioner in an application for divorce is entitle to therelief merely on establishing the existence of the ground pleaded byhim/her in support of the relief. M.F.A. NO. 950/200267. After considering the rival contentions, relying on the decisions,the Family Court went on to consider the entitlement of the appellant -petitioner. Ext.A1 is the order passed in O.P. No.61 of 1995 filed by therespondent - wife for restitution of conjugal rights. The Family Courtheld that it is evident from Ext.A1 that the appellant - petitioner had nointention to resume cohabitation lest he would not have resisted grantingof the prayer in O.P. No.61 of 1995. In O.P. No. 61 of 1995, the appellanthad produced five letters sent by him. The Family Court found that atpage 7 of Ext.A1 order, an observation was made to the effect that theappellant had sent the said letters to create evidence. Taking into accountthe said circumstances, the Family Court held that the appellant had nointention to resume cohabitation. The fact that he resisted O.P. No.61 of1995 was also taken into consideration by the Family Court. Further, itwas found that the respondent herein was always ready and willing for areunion. After such consideration, the Family Court found that theappellant had no intention to resume cohabitation and hence he is notentitled to claim a decree under Section 13(1A)(ii) of the Act anddismissed the Original Petition.8. A careful consideration of the decisions mentioned above wouldmake it abundantly clear that the efflux of time stipulated under Section 13 M.F.A. NO. 950/20027(1A)(ii) of the Act constitutes only satisfaction of the ground for relief andthe court can still deny the relief if it is satisfied that the appellant -petitioner is taking advantage of his or her own wrong by virtue of Section23(1)(a) of the Act. The word 'satisfied' used in the section has to beconstrued as 'satisfied on the basis of the legal evidence' adduced beforethe court that the petitioner is not in any way taking advantage of his or herown wrong or disability for the purpose of the Act and not merely onprobabilities. It must be on the matter on record and based on evidence.Certain aspects of law are also to be borne in mind while considering thequestion as to whether a party who fails to comply with the decree forrestitution of conjugal rights could be stated to be taking advantage of hisor her own wrong and should he or she be denied the decree for divorce onthat ground. In that regard, it is to be noted that mere non compliance ofthe decree for restitution of conjugal rights per se would not amount totaking advantage of one's own wrong. In other words, mere reluctanceon the part of one of the spouses in resuming cohabitation cannot beconstrued as a 'wrong' so as to disentitle him or her to get a decree ofdivorce under Section 13(1A)(ii) of the Act notwithstanding Section 23(1)(a) of the Act. It leads to the conclusion that even on satisfaction of theground for dissolution of marriage by a decree of divorce under Section 13(1A)(ii) of the Act, the entitlement to the relief depends on satisfaction of M.F.A. NO. 950/20028the court that the petitioner is not in any way taking advantage of his or herown wrong or disability for the purpose of such relief. There can be nodoubt that in all cases other than those excluded from the operation of theprovisions under Section 23(1)(a) of the Act, the court is under anobligation to satisfy itself based on the evidence adduced before it that thepetitioner is not taking advantage of his or her own wrong or disability forthe purpose of such relief.9. Now, the question is whether the Family Court has dischargedthe said obligation under Section 23(1)(a) of the Act while denying therelief to the petitioner. A careful analysis of the order of the court belowin the light of the aforesaid discussions would reveal that the court belowhas not properly addressed such relevant questions for the purpose ofarriving at a conclusion in terms of Section 23(1)(a) of the Act.Admittedly, in this case, it was the respondent who obtained a decree forrestitution of conjugal rights. Of course, she has deposed that she wasalways ready and willing for a reunion. Reluctance on the part of theappellant - husband is also alleged. In such circumstances, the courtbelow should have considered the question as to whether there was anyobstacle for the wife to join the husband, who could be regarded as the'wrong doer' for the purpose of Section 23(1)(a) of the Act and if it was M.F.A. NO. 950/20029the appellant/petitioner, then whether he was attempting to take advantageof his own wrong etc. In short, without identifying the wrong doer,especially in view of the allegations and counter allegations, as made inthis case, it would not be possible to properly consider the question as towhether the appellant - petitioner is taking advantage of his or her ownwrong. In view of the decisions of the Honourable Apex Court referredabove, the question whether the conduct on his part would amount to awrong within the meaning of Section 23(1)(a) of the Act disentitling himto the relief of divorce, also should have been considered. 10. In this case, Family Court after referring to the observationmade in O.P. No.61 of 1995 based on Exts.A1 to A5 entered in to thefinding that the appellant had no intention to resume cohabitation. Theaction on the part of the appellant in not pursuing O.P. No.561 of 1997filed by him for divorce was also taken to his detriment without assigningany reason. It is true, the respondent had deposed that she was alwaysready and willing for a reunion. It is evident that the Family Court hasdenied a decree of divorce to the appellant/petitioner under Section 13(1A)(ii) of the Act on the ground that he had no intention to resumecohabitation. However, it is obvious that before holding the petitioner asdisentitled by virtue of Section 23(1)(a) of the Act, the Family Court has M.F.A. NO. 950/200210not discharged the obligation. Before observing that the petitioner cannottake advantage of his own wrong, the Family Court should haveconsidered the question as to whether he is the wrong doer and if so,whether the conduct on his part would amount to a wrong within themeaning of Section 23(1)(a) of the Act so as to disentitle him to the reliefof divorce. It is a fact that the appellant and respondent were livingseparately for a considerably long period and that they had lived togetheronly for a very short period of 2 1/2 months.11. In the circumstances, we are of the view that in the interest ofjustice, the matter has to be remanded to the Family Court for beingdisposed of in accordance with law. Accordingly, we set aside the orderpassed by the Family Court, Kozhikode dated 17.1.2002 in O.P. No.50 of2001 and remand the case for disposal in accordance with law.The appeal is disposed of as above. (P.R. RAMAN) JUDGE (C.T. RAVIKUMAR) JUDGEsp/ M.F.A. NO. 950/200211C.R.P.R. RAMAN & C.T. RAVIKUMAR, JJ.M.F.A.NO. 950/2002JUDGMENT4th February, 2009. M.F.A. NO. 950/200212