Kerala High Court · 2010

Mat. Appeal No. 213 of 2008 -: 4 :-prayer was that the decree for restitution of conjugal rightshaving been passed on 10/1/03 and the parties having notresumed cohabitation, in obedience to the said decree, he wasentitled to claim divorce under Sec.13(1A)(ii) of the Act. Thatpetition for amendment was allowed on 24/11/05.6. The Family Court by judgment dated 6/1/06 inM.O.P.No.62/02 rejected the claim for divorce on both grounds.An appeal was preferred before this Court and this Court byjudgment dated 11/9/07 in Mat. Appeal No.113/06 allowed theappeal in part and remanded the case to the Family Court forfresh disposal of M.O.P.No.62/02. By then, the Family Courthad been established and it was hence that the matter whichhad arisen from the proceedings before the Sub Court, Palakkad,was ordered to be disposed of by the Family Court.7. The Family Court, Palakkad, took the saidM.O.P.No.62/02 on file after remand, re-numbered the same asO.P.No.648/07 and proceeded to dispose of the same on merits.P.W.1 the husband and R.W.1 the wife were the only witnessesexamined. Exts.A1 and A2 to which we have already referredwere the only documents marked. 8. The court below came to the conclusion that theappellant/husband was not entitled to claim divorce on both Mat. Appeal No. 213 of 2008 -: 5 :-grounds. Evaluating the oral evidence tendered by P.W.1 andR.W.1, the court below came to the conclusion thatcontumacious cruelty to attract a decree for divorce underSec.13(1)(ia) of the Act has not been established by the husband.The court below however came to the conclusion that the groundfor divorce under Sec.13(1A)(ii) has been established. But it washeld that the appellant is disentitled to a decree under Sec.13(1A)(ii) as the claim was barred under Sec.23(1)(a) of the Act.In short, the court held that suffering of an uncontested decreefor restitution of conjugal rights and the subsequent non-compliance with such a decree must be reckoned as wrongsfalling within the sweep of Sec.23(1)(a) of the Act and hence theappellant was disentitled for a decree for divorce under Sec.13(1A)(ii) of the Act.9. It will be apposite straightaway to take note of the factthat after the Sub Court dismissed M.O.P.No.62/02 on 6/1/06i.e., long after the stipulated period of one year, an applicationfor execution of the decree for restitution of conjugal rights(order in M.O.P.No.108/02) was filed for the first time by filingan execution petition on 28/6/06. It is conceded thatnotwithstanding the steps taken in execution, the said decreehas not been executed so far. Mat. Appeal No. 213 of 2008 -: 6 :-10. We shall straightaway take note of the fact that theclaim for divorce on the ground of cruelty under Sec.13(1)(ia)was rejected by the court below choosing not to accept and actupon the oral evidence of P.W.1 in the light of the contraevidence tendered by R.W.1. The learned counsel for theappellant has not made any concession. But we note that he hasnot strained to argue that the discretion exercised by the courtbelow not to accept the evidence of P.W.1 in preference to thatof R.W.1 is not justified. We find no reason to interfere withthat discretion exercised by the trial court which had the evidentadvantage and opportunity to see the witnesses perform in thewitness stand before it. In exercise of our appellate jurisdiction,we therefore do not find any reason to interfere with therejection of the claim for divorce under Sec.13(1)(ia) of the Act.11. That takes us to the claim for divorce under Sec.13(1A)and the three important questions that have been raised above.We are certainly of the opinion that the legislative history mustbe borne in mind before we attempt to answer the veryinteresting and important questions raised. Prior to 1964,Sec.13 of the Divorce Act read as follows:“13. Divorce.(1) Any marriage solemnized,whether before or after the Mat. Appeal No. 213 of 2008 -: 7 :-commencement of this Act, may, on apetition presented by either the husband orthe wife, be dissolved by a decree ofdivorce on the ground that the otherparty--(i) x x x x x (ii) x x x x x (iii) x x x x x(iv) x x x x x(vi) x x x x x (vii) x x x x x(viii) has not resumed cohabitationfor a space of two years or upwards afterthe passing of a decree for judicialseparation against that party; or(ix) has failed to comply with a decreefor restitution of conjugal rights for aperiod of two years or upwards after thepassing of the decree”. (portions irrelevant to the controversy omitted and emphasis supplied)12. The legislature was evidently not satisfied with the lawas reflected in the above statutory provision. This obliged thelegislature to make comprehensive amendment of the lawrelating to the ground of divorce under Clauses (viii) and (ix)referred above by an amendment which was introduced witheffect from 20/12/64. It is thus that Sec.13(1A) found its way Mat. Appeal No. 213 of 2008 -: 8 :-into the statute book. We extract Sec.13(1A) below:“13(1A) Either party to a marriage,whether solemnized before or after thecommencement of this Act, may alsopresent a petition for the dissolution of themarriage by a decree of divorce on theground--(i) that there has been no resumptionof cohabitation as between the parties tothe marriage for a period of one year orupwards after the passing of a decree forjudicial separation in a proceeding to whichthey were parties; or(ii) that there has been no restitutionof conjugal rights as between the parties tothe marriage for a period of one year orupwards after the passing of a decree forrestitution of conjugal rights in aproceeding to which they were parties.”(emphasis supplied)13. The mischief rule must be borne in mind. What wasthe law prior to the amendment? What mischief did thelegislature attempt to abate by introduction of Sec.13(1A) and Mat. Appeal No. 213 of 2008 -: 9 :-the deletion of Clauses (viii) and (ix) of Sec.13? First of all thishas to be ascertained correctly before attempting to answer thethree questions referred above. Prior to the amendment underSec.13(1), a claim for divorce under Clauses (viii) and (ix)could have been made by either spouse only on the ground thatthe other party has failed to comply with the decree forrestitution of conjugal rights within the prescribed period afterpassing the decree. In short, the application could have beenfiled only by the decree-holder and not by the one who hadsuffered the decree. The law contemplated a decree for divorceunder Clauses (viii) and (ix) only if a party who suffered thedecree did not comply with the same. In short, the one who hadsuffered the decree could not possibly raise any claim for divorceunder Sec.13(1)(viii) or (ix). There can be absolutely no doubtabout this position of law that prevailed prior to the amendmentin 1964. For the fault of the other spouse who did not complywith the decree, the decree holder spouse was permitted toclaim divorce. The decree holder spouse could not claim divorceunder Sec.13(1)(ix) on the ground that he himself had notcomplied with the decree for restitution. The judgment debtorspouse could not make such an application for divorce whosesoever fault it be that led to non-compliance. It is in this context Mat. Appeal No. 213 of 2008 -: 10 :-that Sec.13(1A) was introduced into the statute book. We haveextracted Sec.13(1A) above. It is crystal clear that by theamendment the legislature wanted to permit or enable the onewho has suffered the decree for restitution of conjugalrights/judicial separation also to claim a decree for divorce underSec.13(1A). Fault to failure is the avenue in refined progressivemarital law. Search for fault need not always be there and thefact of irretrievable failure of marriage is recognizedprogressively by law in various systems of jurisprudence as avalid ground for divorce. It would be puerile to contend that thelegislature which brought about the amendment in 1964 did notwant to take note of this pressing requirement to move fromfault to failure as ground for dissolution of marriage. The Indiansocial ethos had to be borne in mind. The great emphasiswhich the Indian society gives to the preservation of theinstitution of marriage had to be borne in mind. In spite of allthat, the legislature widened the avenue for divorce on theground of non-compliance with the decree for restitution ofconjugal rights by affording opportunity to claim divorce on thatground not only to a party who had obtained the decree but alsoto a party who had suffered the decree, provided the decree forrestitution had not been complied with for the stipulated period Mat. Appeal No. 213 of 2008 -: 11 :-and there has been no resumption of cohabitation within theprescribed period. The spouse claiming divorce under Sec.13(1A)(ii) does not now have to show the fault of the other spouse.He need only show that notwithstanding a binding decree forrestitution of conjugal right, the spouses have not resumedcohabitation - who ever be the decree holder or judgment debtorand whosesoever fault it be that led to the failure to resumecohabitation. 14. Any attempt to interpret the entitlement of a party toa decree for divorce under Sec.13(1A) cannot be undertaken bya court without being conscious of the social realities and thelegislative destinations that persuaded the legislature to bringabout an amendment in the form of Sec.13(1A) after deletingClauses (vii) and (ix) of Sec.13(1) as it originally stood.15. According to us, there can be no doubt on what isrequired to be proved to entitle a party for a decree for divorceunder Sec.13(1A)(ii). Such party must prove: (1) That there has been a decree for restitution of conjugalrights; and (2) That there has been no restitution of conjugal rightsbetween the parties notwithstanding the lapse of a period of oneyear (it was two years prior to 27/5/76). Mat. Appeal No. 213 of 2008 -: 12 :-It is very easy to understand from a plain reading of Sec.13(1A)that the legislature was not concerned about the responsibilityfor non-compliance of a decree for restitution of conjugal rights.Did the court direct restitution? In spite of such decree, wherethe parties unable to resume cohabitation? If they could notresume cohabitation, notwithstanding the question as to who hadobtained the decree and on account of whose fault the restitutiondid not take place, both spouses were held entitled to the decreefor divorce under Sec.13(1A)(ii). That is the legislative schemeundoubtedly.16. The above position appears to be crystal clear. It isunnecessary to go to the precedents to ascertain the true scopeand the change in law brought about by introduction of Sec.13(1A) after deletion of Clauses (viii) and (ix) of Sec.13. Allprecedents only confirm the above understanding of the scope ofSec.13(1A)(ii) of the Act.17. The learned counsel for the respondent contends thatestablishment of this ground under Sec.13(1A)(ii) is insufficientby itself to entitle a spouse to claim divorce under Sec.13(1A).We are afraid that that would be arguing against what is patentin the statutory provision. The legislature has laid down theground and on an establishment of that ground, if there is no Mat. Appeal No. 213 of 2008 -: 13 :-disabling circumstances, the decree must be conceded to theclaimant. It is not open to this Court to introduce subjectivenorms as to what further circumstances must be established inaddition to the circumstances enumerated in Sec.13(1A)(ii) tojustify the grant of a decree for divorce. That would bequestioning the wisdom of the legislature which we are notsupposed to and shall not do.18. The learned counsel for the appellant relies on certainobservations in precedents to indicate that really Sec.13(1A)was introduced by the 1964 amendment accepting the theorythat irretrievable break down of marriage must be recognized asa ground for divorce under certain special circumstances. Ourattention has been drawn to the observations of JusticeChinnappa Reddy who headed the two Judge Bench in Ms.Jorden Diengdeh v. S.S. Chopra (AIR 1985 SC 935). TheirLordships were considering whether irretrievable break down ofmarriage need be recognized as a ground for dissolution ofmarriage. It is in this context that we find the followingobservations which convey eloquently that the principle ofirretrievable break down of marriage justifying a decree fordissolution is recognized in Sec.13(1A). “.......... We may also notice that Mat. Appeal No. 213 of 2008 -: 14 :-irretrievable break down of marriage is yetno ground for dissolution of marriageunder the Hindu Marriage Act also, thoughthe principle appears to have beenrecognized in Sec.13(1A) and Sec.13(B).” 19. We feel that it will also be apposite in this context torefer to the following observations which appear in paragraph-10of the judgment of the two Judge Bench in Saroj Rani v.Sudarshan Kumar (AIR 1984 SC 1562) where also we findthat their Lordships accepted that Sec.13(1A) really reflects theanxiety of the legislature to put an end to marriages which haveirretrievably broken down and which remain only in law and notin fact. We shall have occasion to refer to this decision infurther detail later. But for the moment we extract the followingpassage in paragraph-10:“10. ........ Further more we reachthis conclusion without any mentalcompunction because it is evident that forwhatever be the reasons this marriage hasbroken down and the parties can no longerlive together as husband and wife, if suchis the situation it is better to close thechapter.”(emphasis supplied) Mat. Appeal No. 213 of 2008 -: 15 :-20. From Ms. Jorden Diengdeh v. S.S. Chopra (1985 SC935) to Naveen Kohli v. Neelu Kohli (AIR 2006 SC 1675) theSupreme Court has been repeatedly emphasizing the need toreckon irretrievable break down of marriage as an independentvalid ground for divorce. It is now well settled that a decree onthat ground alone cannot be granted until and unless thelegislature recognizes that to be a valid ground for divorce. But,as stated in Jorden (Supra), Section 13(1A)(ii) recognizes theprinciple that irretrievable break down of marriage must berecognized as a sufficient ground for divorce, at least, under thecircumstances enumerated under Section 13(1A)(ii). We have nohesitation to agree with Section 13(1A)(ii) recognizes theprinciple that irretrievable break down of marriage can berecognized as a valid ground for divorce provided it is shown tothe satisfaction of the court that in spite of a decree forrestitution of conjugal rights, the spouses have not resumed co-habitation within the prescribed period. That is recognized bythe legislature as a valid ground for either of the spouses -decree holder or the judgment debtor, to seek divorce. We mayat the risk of repetition observe that fault is irrelevant when aclaim for divorce is raised under Sec.13(1A). Who is the decreeholder or judgment debtor in the proceedings for restitution of Mat. Appeal No. 213 of 2008 -: 16 :-conjugal rights is also irrelevant. What is relevant is onlywhether a marriage remains without restitution even afterelapse of a period of one year from the date of the decree forrestitution. Such dead marriages, the legislature accepts mustbe put an end to legally. This we hold is the only way tounderstand Sec.13(1A)(ii) which was introduced by amendment.21. A dispute has been raised as to whether Sec.13(1A) isalso guided by Sec.23(1)(a) of the Act. There can be nocontroversy on that aspect now. It is well settled and trite nowthat Sec.23(1)(a) controls and guides Sec.13(1A) also.Notwithstanding the fact that the grounds for divorce underSec.13(1A) have been established, the petitioner claiming adecree for divorce has further got to show that his claim forrelief is not barred under Sec.23(1)(a). The position is too wellsettled now to require reference to the precedents. Thedecision in Hirachand Srinivas Mangaonkar v. Sunanda((2001) 4 SCC 125) removes the last trace of doubt, if any, onthis question. If a spouse claiming divorce under Sec.13(1A) isfound to be guilty of any wrong falling within the sweep ofSec.23(1)(a), notwithstanding the establishment of the groundfor divorce under sec.13(1A), such party shall not be entitled fordivorce not because of the ground under Sec.13(1A) has not Mat. Appeal No. 213 of 2008 -: 17 :-been established but because relief would be barred underSec.23(1)(a) of the Act.22. We may straightaway extract Sec.23(1)(a) of the Act:“23. Decree in proceedings.-- (1)In any proceeding under this Act, whetherdefended or not, if the court is satisfiedthat--(a)any of the grounds for grantingrelief exists and the petitioner except incases where the relief is sought by him onthe ground specified in sub-clause (a), sub-clause (b) of sub-clause (c) of clause (ii) ofsection 5 is not in any way takingadvantage of his or her own wrong ordisability for the purpose of such relief.”Sec.23(1)(a) guides and controls all proceedings under the Actexcept Clauses (a), (b) and (c) of Sec.5(ii). When Sec.13(1A) wasintroduced no consequent amendment was introduced in Sec.23.Therefore, Sec.23(1)(a) indisputably controls and guides Sec.13(1A) also. It is here that a proper understanding of the conceptof `wrong' or `disability' under Sec.23(1)(a) becomes crucial andvital. The concept of `wrong' under Sec.23(1)(a) cannot beunderstood without reference to the nature of the claims. Thenature of the right to claim divorce must certainly have an Mat. Appeal No. 213 of 2008 -: 18 :-impact in ascertaining what could be a `wrong' to disentitle aparty to claim such relief under Sec.23(1)(a). In short, therecannot be a universal concept of `wrong' applicable to all claims.The concept of wrong has to be understood and ascertained,conscious of the nature of the right conferred and the claimstaked. An improper understanding of the concept of wrongmay lead to denial and frustration of the right conferred and therelief claimed. That has got to be zealously avoided.23. That takes us to the crucial question as to what can bereckoned as a wrong for the purpose of Sec.23(1)(a) of the Act ina claim for divorce under Sec.13(1A)(ii) of the Act. Ourattention has been drawn to all the four decisions of theSupreme Court having a bearing on the question. They are:(1) Dharmendra Kumar v. Usha Kumar (AIR 1977 SC2218);(2) Saroj Rani v. Sudarshan Kumar (AIR 1984 SC 1562);(3) T. Srinivasan v. T. Varalakshmi Mrs.) ((1998) 3 SCC112) and (4) Hirachand Srinivas Mangaonkar v. Sunanda((2001) 4 SCC 125).Our attention has also been drawn to two decisions of theDivision Benches of the Kerala High Court in K.M.K. Nair v. Mat. Appeal No. 213 of 2008 -: 19 :-Radhakumari (1988 (1) KLT 461) and Ajith Kumar v. Jeeja (2009 (1) KLT 634). 24. At the out set we must note that Sec.13(1A) and Sec.23(1)(a) have to be read harmoniously. A ground recognizedunder Sec.13(1A) cannot definitely operate as a wrong underSec.23(1)(a). If that be so, we will have to assume that what thelegislature has given with the right hand under Sec.13(1A) iswithdrawn and taken back by the left hand under Sec.23(1)(a).The ground has to be established. One claiming the relief ofdivorce under Sec.13(1A) should not be guilty of any such wrongas to disentitle him for the relief under Sec.13(1A). Reading thetwo sections harmoniously the conclusion is irresistible that aground under Sec.13(1A) cannot definitely operate as a wrongunder Sec.23(1)(a) to justify refusal of the relief under Sec.13(1A). This principle emerges clearly from the language of Sec.13(1A) considered in the background of the amendment by whichSec.13(1)(viii) & (ix) were deleted and Sec.13(1A) wasintroduced into the statute book.25. We shall now consider the four decisions of theSupreme Court to which reference has been made above. InDharmendra Kumar (supra) the wife had obtained a decree forrestitution of conjugal rights. She did not take any steps for Mat. Appeal No. 213 of 2008 -: 20 :-execution of the decree for restitution of conjugal rights. Sheapplied for divorce under Sec.13(1A). The husband pleaded thatshe had committed the wrong of not enforcing the decree forrestitution of conjugal rights which wrong he contended wassufficient to justify rejection of the claim for divorce undersec.23(1)(a). The Supreme Court had occasion to consider thelaw on the point. The decision of a Full Bench of the Delhi HighCourt in Gajna Devi v. Purshotam Giri (AIR 1977 Delhi 178)was quoted with approval by their Lordships. We extract belowthe observations of the Full Bench of the High Court which foundapproval with the Supreme Court:“Section 23 existed in the statutebook prior to the insertion of Section 13(1A) ........... Had Parliament intendedthat a party which is guilty of amatrimonial offence and against which adecree for judicial separation or restitutionor conjugal rights had been passed, wasin view of Sec.23 of the Act, not entitled toobtain divorce then it would have insertedan exception to Section 13(1A) and withsuch exception, the provision of Section 13(1A) would practically become redundantas the guilty party could never reapbenefit of obtaining divorce, while theinnocent party was entitled to obtain it Mat. Appeal No. 213 of 2008 -: 21 :-even under the statute as it was before theamendment. Section 23 of the Act,therefore cannot be construed so as tomake the effect of amendment of the lawby insertion of Section 13(1A) nugatory.......... the expression “petitioner isnot in any way taking advantage of his orher own wrong” occurring in Cl.(a) ofS.23(1) of the Act does not apply to takingadvantage of the statutory right to obtaindissolution of marriage which has beenconferred on him by Sec.13(1A) ..... Insuch a case, a party is not takingadvantage of his own wrong, but of thelegal right following upon of the passing ofthe decree and the failure of the parties tocomply with the decree......”26. After extracting the above passage, their Lordships ofthe Supreme Court went on to observe as follows:“In our opinion the law has been statedcorrectly in Ram Kali v. Gopal Das(supra) and Gajna Devi v. PurshotamGiri (AIR 1977 Delhi 178) (supra).”27. Subsequently in the same paragraph-3 the SupremeCourt has summarized the quintessence of the law as to howSec.13(1A) has to be harmonized with Sec.23(1)(a). The Mat. Appeal No. 213 of 2008 -: 22 :-conclusion of the two Judge bench of the Supreme Court appearsin the following words in paragraph-3:“Therefore, it would not be veryreasonable to think that the relief which isavailable to the spouse against whom adecree for restitution has been passedshould be denied to the one who does notinsist on compliance with the decreepassed in his or her favour. In order to be`wrong' within the meaning of Section 23(1)(a), the conduct alleged has to besomething more than a mere disinclinationto agree to an offer of renuion, it must bemisconduct serious enough to justify denialof the relief to which the husband or thewife is otherwise entitled.” (emphasis supplied)28. We reckon that as the binding statement of law. Thewrong put forward under Sec.23(1)(a) must be “serious enough”to justify the denial of the relief to the petitioning spouse.29. Later, in Saroj Rani v. Sudarshan Kumar (AIR 1984SC 1562) the Supreme Court had occasion to consider thisprinciple in Dharmendra Kumar (supra). That was a casewhere a consent decree for restitution of conjugal rights waspassed in favour of the wife. That decree was not complied with. Mat. Appeal No. 213 of 2008 -: 23 :-Of course, there was a dispute as to whether it had actuallybeen complied with or not. The court held that it has not beencomplied with. The husband applied for divorce under Sec.13(1A). The decree was granted in his favour. A contention wasraised that the husband was guilty of a wrong under Sec.23(1)(a)which would justify denial of the relief under Sec.13(1A). It wasalleged before the superior Courts that the husband had sufferedthe decree for restitution fraudulently. It was furthercontended that he was guilty of not complying with the decreefor restitution even though his wife was willing to comply withthe same.30. The two Judge Bench of the Supreme Court consideredthe question and the crucial observations are available inparagraph-10 which we extract below:“Counsel for the appellant sought tourge that the expression `taking advantageof his or her own wrong' in clause (a) ofsub-section (1) of Section 23 must beconstrued in such a manner as would notmake the Indian wives suffer at the handsof cunning and dishonest husbands.Firstly even if there is any scope foraccepting this broad argument, it has nofactual application to this case andsecondly if that is so then it requires a Mat. Appeal No. 213 of 2008 -: 24 :-legislation to that effect. We are thereforeunable to accept the contention of counselfor the appellant that the conduct of thehusband sought to be urged against himcould possibly come within the expression`his own wrong' in Section 23(1)(a) of theAct so as to disentitle him to a decree fordivorce to which he is otherwise entitled toas held by the Courts below. Furthermore we reach this conclusion without anymental compunction because it is evidentthat for whatever be the reasons thismarriage has broken down and the partiescan no longer live together as husband andwife, if such is the situation it is better toclose the chapter.”(emphasis supplied)31. It is true that on facts in that case the contention wasnot properly raised that the decree for restitution of conjugalrights was fraudulently obtained. The court did not reckon thatas a relevant ground because factual foundation was not made tojustify that plea. What is more important is the observationextracted above that “secondly if that is so then it requires alegislation to that effect”. The fact that the Supreme Court didnot go into the first ground raised is irrelevant because the Mat. Appeal No. 213 of 2008 -: 25 :-Supreme Court had held that if such a contention were to beaccepted, then it requires a legislation to that effect. In thenature of the legislation that is presently available - in the wakeof the language in Sec.13(1A), the ground which is recognized asa ground for divorce cannot obviously operate as a wrongunder Sec.23(1)(a). The fact that the factual circumstances werelooked into by the Supreme Court while considering the firstcontention does not militate against the dictum laid down by theSupreme Court when it proceeded to consider the secondground and stated that the said contention even if true wouldrequire a legislation to that effect if it were to be accepted. Weare unable to understand anything in Saroj Rani (supra) that isopposed to the quintessence of law stated by the Supreme Courtin paragraph-3 of Dharmendra Kumar (supra) which we havealready extracted.32. Our attention has been drawn to the third decisionreferred above which is by a three Judge Bench of the SupremeCourt. It is crucial to note that the said decision T. Srinivasanv. T. Varalakshmi Mrs.) ((1998) 3 SCC 112) does notspecifically refer to the earlier decisions in DharmendraKumar (supra) or Saroj Rani (supra). The relevantobservations appear in paragraph-1 of that short decision Mat. Appeal No. 213 of 2008 -: 26 :-which we extract below:“1. The finding recorded by the courtsbelow is that the husband obtained adecree for restitution of conjugal rights notto act in obedience thereof but, on theother hand, to keep the wife deprived of herright to perform her conjugal duties. Thewife made a demand of the husband to lether join him but he refused to allow herenter the house, rather he drove her awayas also her relatives, whoever attempted torehabilitate the wife. These acts of thehusband were positive wrongs amountingto “misconduct”, uncondonable for thepurposes of Section 23(1)(a) of the HinduMarriage Act, 1955. Hence, he was rightlydenied relief under Section 13(1-A) of thesaid Act. The appeals, therefore, fail andare hereby dismissed.”(emphasis supplied)That decision is rendered by a three Judge Bench. It acceptsthe proposition that Sec.13(1A) is controlled by Sec.23(1)(a) ofthe Act. It does not detract anything against the DharmendraKumar (supra) and Saroj Rani (supra). A fair reading of thesaid very short judgment only shows that applying the dictum inDharmendra Kumar (supra) and Saroj Rani (supra), the Mat. Appeal No. 213 of 2008 -: 27 :-three Judge Bench of the Supreme Court reckoned the conductof the husband (who obtained a decree for restitution ofconjugal rights, whose wife had made a demand after the decreefor restitution of conjugal rights to join him, who refused toallow her to enter the house and who rather drove her away asalso her relatives whoever attempted to rehabilitate the wife)was a wrong, serious and grave enough under Sec.23(1)(a) tojustify the withholding of the relief under Sec.13(1A). We areunable to agree that Srinivasan (supra) lays down anyproposition of law different or distinct from what has alreadybeen laid down in Dharmendra Kumar (supra) and SarojRani (supra). The dictum obviously (though not stated in somany words) was applied to the facts of the case in Srinivasan(supra) and it was held that the same amounts to a wrongfalling within the sweep of Sec.23(1)(a) of the Act. It would bepuerile to assume that without reference to DharmendraKumar and Saroj Rani (supra), the Supreme Court impliedlyoverruled the dictum therein. No law binding under Art.141 isdeclared in Srinivasan (supra) except that Sec.23(1)(a) controlseven a claim under Sec.13(1A). 33. The learned counsel for the respondent places heavyreliance on the decision of the Supreme Court in Hirachand Mat. Appeal No. 213 of 2008 -: 28 :-Srinivas Mangaonkar v. Sunanda ((2001) 4 SCC 125). In thatcase the wife had obtained an order of judicial separation on theground of adultery. The spouses were residing separately afterthe order of judicial separation was passed. There was adirection for payment of alimony. The husband did not pay theamount. He continued his adulterous relationship. As a dutifulhusband he did not attempt to resume cohabitation in spite ofthe decree for judicial separation. After the lapse of thestipulated period under Sec.13(1A), he came to court with apetition for dissolution of marriage under Sec.13(1A). TheSupreme Court took the view that in not paying alimony to hiswife and child, in continuing the adulterous relationship and innot attempting to resume cohabitation in spite of the decree forjudicial separation, the husband can be held to have committed awrong within the sweep of Sec.23(1)(a). The Supreme Courthad referred to the decision in Dharmendra Kumar (supra),though we note that the decision in Saroj Rani (supra) has notbeen specifically referred to. This decision is also rendered by atwo Judge Bench of the Supreme Court.34. It is interesting to note that the dictum inDharmendra Kumar (supra) the relevant paragraph-3 of whichwe have already extracted has not been altered or modified by Mat. Appeal No. 213 of 2008 -: 29 :-the Supreme Court in Hirachand (supra). The openingpassage of the decision shows that the point that arose fordetermination though short and not simple is whether reliefunder Sec.13(1A) can be refused to the husband “on the groundthat he has failed to pay maintenance to his wife and daughterdespite an order of the court”. The facts of that case werepeculiar. The husband had suffered an order of judicialseparation on the ground of adultery. He continued hisadulterous life. In spite of an order of the court to pay alimony,he did not pay alimony to his wife and child.He did not as adutiful husband attempt to resume cohabitation. Cumulatively,these were reckoned by court as a wrong serious enough to fallwithin the sweep of Sec.23(1)(a) as to disentitle the petitionerspouse for the relief of divorce. The Supreme Court had furtherobserved that the mere establishment of the ground for divorceunder Sec.13(1A) cannot ipso facto lead to grant of a decree fordivorce under Sec.13(1A) of the Act. The learned counsel forthe appellant argues that even after establishment of the groundunder Sec.13(1A), a discretion is vested with the court as towhether the relief for divorce under Sec.13(1A) can be grantedor not. We are afraid that the Supreme Court has not held so.The Supreme Court had only held that after establishment of the Mat. Appeal No. 213 of 2008 -: 30 :-ground under Sec.13(1A) it must further be shown that the grantof a relief is not barred under Sec.23(1)(a). Even after comingto the conclusion that the ground under Sec.13(1A) has beenestablished satisfactorily, the courts are obliged to considerwhether the claim for relief is barred under Sec.23(1)(a). As towhat would constitute a wrong, no straight jacket formula can beprescribed. The totality of inputs have to be taken into accountto decide whether a conduct of the petitioning spouse which isrelied on by the spouse defending the claim for divorce, can bereckoned as wrong for the purpose of Sec.23(1)(a). That andthat alone is, according to us, the dictum in Hirachand (supra).35. We find no merit in the contention that sans or de horsSec.23(1)(a) the court has a discretion to grant relief or notunder Sec.13(1A). We repeat that the ground under Sec.13(1A)must be established. Once that is established the court has toproceed to consider whether the claim for the relief for divorceis barred under Sec.23(1)(a). As to what would constitute awrong, no straight jacket formula can be prescribed. Thetotality of inputs will have to be considered. At any rate, themere fact that a spouse who has suffered an order of restitutionof conjugal rights had not shown inclination or earnestness toresume cohabitation cannot be reckoned as a wrong under Mat. Appeal No. 213 of 2008 -: 31 :-Sec.23(1)(a). Something more serious and more grave must beestablished to justify the rejection of the claim for divorce byinvoking the concept of wrong under Sec.23(1)(a). 36. The learned senior counsel Sri.V. Chitambaresh hasstrenuously contended that the non-compliance of a decree forrestitution of conjugal rights suffered by the petitioning spouseon account of his own disinclination must be reckoned as awrong sufficient under Sec.23(1)(a). We need only repeat thatto take such a view, as stated by the Supreme Court in SarojRani (supra), the legislation will have to be re-drafted. Thespouse who has secured the decree for restitution of conjugalrights as also the spouse who has suffered such decree forrestitution of conjugal rights are both entitled to petition thecourt under Sec.13(1A) of the Act and the ground recognizedunder Sec.13(1A) can never be a wrong under Sec.23(1)(a).37. Reliance is placed on the two decisions of the DivisionBenches in K.M.K. Nair v. Radhakumari (1988 (1) KLT 461)and Ajith Kumar v. Jeeja (2009 (1) KLT 634). InRadhakumari (supra), the Division Bench had occasionspecifically to consider the possibility of a spouse violating thedecree for restitution of conjugal rights himself claiming reliefunder Sec.13(1A). In paragraph-11 the Division Bench Mat. Appeal No. 213 of 2008 -: 32 :-proceeded to observe as follows:“The Supreme Court in Saroj Rani'scase pointed out that if such a conduct ofthe husband is intended to be treated aswrong, then it requires a legislation to thateffect. We cannot rule out the possibility ofa party obtaining a decree for restitution ofconjugal rights and not enforcing the samewith the sole purpose of getting a divorceafter the lapse of statutory period, but suchan abuse can be prevented only bybringing necessary legislation pluggingthis device and it is certainly a matterwhich requires serious consideration of theParliament. But as law stands now, we arehelpless in the matter and can only grantrelief as one naturally flowing from the factthat there was no restitution of conjugalrights for a period of more than one yearafter passing of the decree, if there is noacceptable evidence to show that there wasrestitution within the statutory period.”38. We readily agree with the learned Judges on thestatement of the law. But we do not agree that the courts grantthe decree in such a situation `helplessly'. The courts mustappreciate the change in law with the introduction of Sec.13(1A). De jure burial of de facto dead marriages is the legislative Mat. Appeal No. 213 of 2008 -: 33 :-motivation underlying Sec.13(1A) as we have understood andascertained earlier. At least in the present era considering thelong journey from Jorden to Naveen Kohli (supra), the courtsmust perform that statutory duty without reluctance and withoutany feeling of helplessness.39. In Ajith Kumar (supra), it was a case wherenotwithstanding the finding entered into by the Family Courtthat the ground under Sec.13(1A) has been established, theclaim for divorce was rejected on the ground that the husbandwas guilty of a wrong under Sec.23(1)(a). The Division Benchdid not accept the rejection of the claim. The court directed thatthe matter must be considered by the Family Court afresh. Thecase was remanded with a direction to the Family Court toconsider whether the petitioning spouse under Sec.13(1A) (thehusband) was guilty of any such wrong which would fall withinthe sweep of Sec.23(1)(a)) to justify the rejection of the claim fordivorce. The Family Court had not considered that aspectpointedly and the direction to the Family Court was to considerthe same specifically. According to us, Ajith Kumar (supra)does not lay down the proposition that the mere omission/failure/disinclination of the petitioning spouse to comply with thedecree for restitution is ipso facto a wrong falling within the Mat. Appeal No. 213 of 2008 -: 34 :-sweep of Sec.23(1)(a). To hold so would be to go directly againstthe dictum in Dharmendra Kumar (supra). Despite the ablepersuasive efforts of Shri. Chitambaresh the learned seniorcounsel for the respondent relying on the observations inparagraph-9 of the Ajith Kumar (supra), we are unable toagree that the mere non-compliance of a decree for restitution issufficient to deny relief to the claimant spouse.40. The counsel, relying on the observations in paragraph-9of Ajith Kumar (supra) attempts to advance a contention thatin every case where there is non-compliance with the decree forrestitution of conjugal rights, either of the spouses mustcertainly be guilty of a wrong under Sec.23(1)(a). It has beenheld so in paragraph-9 of the Ajith Kumar (supra), contendsthe counsel. We are unable to agree. To hold so would be tore-draft Sec.13(1A) and to go against the principles laid down inDharmendra Kumar (supra). Mere non-compliance or mererefusal/failure to comply with the decree for restitution ofconjugal rights, we repeat, cannot be held to be a wrong underSec.23(1)(a).41. We shall now come back to the question whether theappellant in this case can be held to be guilty of any wrong underSec.23(1)(a) to justify denial of the relief of divorce to him under Mat. Appeal No. 213 of 2008 -: 35 :-Sec.13(1A). That there has been a decree for restitution ofconjugal rights is admitted. That the decree for restitution ofconjugal rights had not been complied with within the period ofone year is also not disputed. In the view which we have alreadytaken the mere non-compliance can certainly not be held to be asufficient wrong under Sec.23(1)(a).42. The only other contention which is very strenuouslyurged is that the respondent had agreed to the court passing adecree for restitution of conjugal rights. That decree wasconceded without any bona fides. That decree was fraudulentlysecured from the court solely for the purpose of making aneventual ground available to the husband under Sec.13(1A).The learned counsel argues that the hands of the appellant arenot clean in that he had agreed to the passing of the decreewhich he had no intention to comply at all. This must at least bereckoned as a sufficient wrong under Sec.23(1)(a), argues thelearned counsel.43. We are unable to accept this contention. In SarojRani (supra) the situation was almost identical. That was alsoa case where the husband had consented to a decree forrestitution of conjugal rights. In the instant case, it is true thatthe husband had consented to the passing of a decree for Mat. Appeal No. 213 of 2008 -: 36 :-restitution of conjugal rights. It will be apposite in this contextto refer to the language of the counter statement by which thepassing of a decree for restitution was conceded. When theapplication for restitution of conjugal rights was filed the O.P. fordivorce was pending. There was no harmonious reconciliationeven admittedly. The husband had only agreed to the sufferingof a decree for restitution of conjugal rights. There was noagreement to commence harmonious marital life. The relevantpassage in paragraph-11 of the counter statement, the certifiedcopy of which has been made available to us, reads as follows:“Even though petitioner (ie. the wife)is not entitled to a relief of restitution ofconjugal rights and no grounds are alsomade out in the petition for the same, stillthis respondent (the husband) has noobjection in allowing the prayer (withoutprejudice to get divorce from her as prayedin O.P.No.62/2002) for the sake of puttingan end to litigation and marital status asearly as possible.”44. The appellant/husband admitted categorically when hewas examined as P.W.1 that there was no intention to reconcile Mat. Appeal No. 213 of 2008 -: 37 :-when he agreed to the passing of a decree for restitution ofconjugal rights. In fact, when the appellant claimed the reliefof divorce under Sec.13(1A) of the Act by amendment, thefollowing is the pleadings raised in paragraph 4A of the petition:“4A. During the pendency of thisdivorce petition, the respondent filed anapplication for restitution of conjugal rightsas M.O.P.108/2002 on the file of this courtagainst the petitioner and the same wasordered on 10/1/2003. Even though morethan one year has elapsed after the order,as not fructified nor has the respondenttaken any steps to further the object of theorder all these days; if at all she wassincere and earnest she would have takensteps. Now the order remains in paperonly. The petition was just a counter blastand it was not filed with a view to come andjoint the petitioner. It was really an eyewash to make it appear that therespondent wanted the company of thepetitioner, which was not true or genuine.That was why the petition was notcontested. The respondent did not takeany steps also in pursuance to that order.In such circumstances the petition isenjoined under law to advance that also asa ground to obtain divorce against the Mat. Appeal No. 213 of 2008 -: 38 :-respondent, which is a subsequent eventpending these proceedings.” (extracted as in the petition)45. It is true that a decree for restitution of conjugal rightswas conceded. But the concession was not in derogation of theclaim for divorce. It is crystal clear that there was nounderstanding, compromise or settlement between the partiesand they had never agreed to live together in pursuance of adecree for restitution of conjugal rights which was sought andconceded in O.P.No.108/02. Deceit, suppression or fraud arenot vices that we can discover or invent from the pleadingsraised by the appellant in the counter statement filed by himconceding the claim for restitution of conjugal rights. He agreedto suffer a decree but he did not agree to reconcile and resumeharmonious cohabitation. The suffering of a decree forrestitution of conjugal rights may bring with it consequences.The decree can be sought to be executed and he can beproceeded against. His property can be proceeded against. Heconsciously agreed to suffer the decree and its consequencesonly. Suffering of a decree for restitution of conjugal rightdelivers certain advantages in accordance with law after Sec.13(1A) was introduced in the statute book. In the nature of the Mat. Appeal No. 213 of 2008 -: 39 :-pleadings which we extracted above it is very evident that theappellant had agreed to and conceded the passing of decree forrestitution of conjugal rights knowing fully the beneficial andthe disadvantageous consequences which such a decree maybring forth against him. We are unable to agree that suchconduct of suffering of decree by itself is sufficient to justify theconclusion that a wrong falling within the sweep of Sec.23(1)(a)has been committed by the appellant to warrant rejection of hisclaim for divorce.46. It will not be inapposite in this context to note that thedecree was not sought to be executed for a period of one yearfrom the date of the decree. It is contended that subsequently in2006 there was an attempt to execute the decree and thatattempt has failed. But the attempts made subsequent to theelapse of the period of one year which gave to the appellant aright to move the court for divorce is irrelevant whileconsidering whether wrong has been committed as contemplatedby Sec.23(1)(a).47. The learned counsel for the appellant submits with thehelp of a copy of the order in M.C.No.40/02 that the husband inthis case was guilty of matrimonial cruelty. The counsel arguesthat this must be read along with his conduct of conceding a Mat. Appeal No. 213 of 2008 -: 40 :-decree for restitution of conjugal rights and showing noinclination to get the said decree for restitution of conjugalrights enforced/complied. The learned counsel argues that as adutiful husband the appellant has the burden to ensure thatcohabitation is resumed. The counsel, in this context, relies onthe observations in M.C.No.40/02 which is an ex parte order thatthe husband has been guilty of matrimonial cruelty and ill-treatment.48. We have been taken through the order inM.C.No.40/02. There was no offer by the appellant to resumecohabitation on the ground that the wife lives with him. Underthe scheme of Sec.125 Cr.P.C. the question of matrimonialcruelty would arise only when there is such an offer made by thehusband. It was an ex parte order. In law the question whetherthere was matrimonial cruelty did not arise for consideration atall. A contention that the husband is willing to maintain the wifeon condition that she lives with him was not raised. Accordingto her, she was always willing to reside with him. The wife hadnot refused to live with him on the ground that he is guilty ofmatrimonial cruelty. In these circumstance, the contentionurged with the help of the order in M.C.No.40/02 that inaddition to the husband suffering a decree for restitution of Mat. Appeal No. 213 of 2008 -: 41 :-conjugal rights without any intention to comply with the sameand his conduct of not complying with the same, thematrimonial cruelty must be read together to conclude that he isguilty of a wrong under Sec.23(1)(a) cannot also be accepted. 49. We are, in these circumstances, satisfied that theground under Sec.13(1A) having been established withoutdispute, there is no valid reason to justify the rejection of theclaim by invoking Sec.23(1)(a). In conceding a decree forrestitution of conjugal rights in O,.P.No.108/02 with thepleadings extracted above and subsequently in not showingkeenness to get the decree complied with, the appellant husbandcannot be said to have committed any wrong under Sec.23(1)(a).In fact, the fact that the holder of the decree did not take anysteps to execute the decree is again a circumstance in favour ofthe appellant and certainty not against him while considering hisalleged contumacious role in the decree for restitution not beingexecuted.50. We do, in these circumstances, come to the conclusionand reiterate that the mere non-compliance of a decree forrestitution of conjugal rights by a spouse who has suffered adecree cannot be reckoned as a sufficient ground under Sec.23(1)(a) in an application for divorce filed by such spouse under Mat. Appeal No. 213 of 2008 -: 42 :-Sec.13(1A). We further hold on facts that the suffering of Ext.A1decree on the basis of the concession in the words extractedabove cannot also be reckoned as a sufficient wrong on the partof the husband to justify denial of relief under Sec.13(1A) of theAct to him. In order to be reckoned as a wrong under Sec.23(1)(a) in a claim for divorce under Sec.13(1A) the alleged wrongmust be sufficiently grave and serious. It must revealcontumaciousness of the grave and serious variety. The meresuffering of a conceded decree for restitution of conjugal rightswithout contest and mere non-compliance of such decree cannotbe reckoned as wrong justifying the refusal of relief underSec.13(1A). The questions posed in Paragraph-1 are answeredthus. 51. The learned counsel for the respondent has raisedseveral other contentions also. We shall briefly refer to thosecontentions. The learned counsel, first of all, points out thatthe amendment incorporating the claim for divorce under Sec.13(1A) by I.A.No.558/04 was filed on 14/2/04 and the same wasallowed on 24/11/05. Relying on Sampath Kumar v.Ayyakannu ((2002) 7 SCC 559) the learned counsel argues thatonce an amendment is incorporated under Order 6 Rule 17 CPCthe same must relate back to the date of the suit and when such Mat. Appeal No. 213 of 2008 -: 43 :-doctrine of relation-back applies, the amendment takes effectfrom the date of the petition i.e., 22/4/02. On that date theassertion brought in by the amendment was factually incorrectand non existent. On the date of the application - 22/4/02 thisground was not available. The counsel further contends that an`application` under Sec.13(1A) has to be `presented`. Accordingto the counsel, the requirement of presentation mandates thatthe allegations must be raised in the petition as originallypresented and it cannot be brought in by amendment.52. The learned counsel thirdly contends that the right toclaim divorce under Sec.13(1A) can arise only after elapse of aperiod of one year from the date of the decree for restitution andany application filed earlier would be premature the groundbeing non-existent on the relevant date of presentation of theapplication. The learned counsel for the appellant placesreliance on the decision of a Full Bench of this Court inHameed v. Ittoop (1970 KLT 501).53. We have rendered our very anxious consideration tothese contentions. We are unable to accept these threecontentions. Paragraph-10 of the decision in Sampath Kumar(supra) relied on by the learned counsel, itself shows that thedoctrine of relation-back in the context of amendment of Mat. Appeal No. 213 of 2008 -: 44 :-pleadings is not one of universal application. Here is a casewhere it is known to every one that on the date when thepetition was filed the ground was non-existent. The ground fordivorce came into existence during the pendency of theproceedings. On the basis of the subsequent developmentduring the pendency of the proceedings, divorce on theadditional ground under Sec.13(1A) was claimed. The doctrineof relation-back can have no application whatsoever in thesecircumstances. When a subsequent development is brought tothe notice of the court by amendment, it would certainly bepuerile to contend that the ground did not exist on the date ofthe original petition and hence relief cannot be granted on thatground.54. The second argument that the petition has to bepresented on the ground under Sec.13(1A) and the groundcannot be included subsequently by amendment in a petitionalready filed is an argument against the very concept ofamendment of petition to incorporate a fresh or omitted ground.One cannot lose sight of the fact that it is a matrimoniallitigation. It is in the interests of all concerned that all relevantcontentions must be raised and decided in a pending proceeding.Authority is legion for the proposition that a subsequent relevant Mat. Appeal No. 213 of 2008 -: 45 :-ground can be raised in a pending proceeding to help the courtto mould the relief. More so, in matrimonial litigation wheremultiplicity of proceedings must be zealously avoided by allconcerned in the interests of the spouses/contestants. It is to benoted that the requirement of presentation of a petition appearseven in Sec.13(1) in identical language. As in Sec.13(1), therelief under Sec.13(1A) can also be claimed only on a petitionpresented by either spouse. This is not to say that a groundwhich was omitted to be raised earlier or a ground which hascome into existence later cannot be incorporated by amendmentof a petition either under Sec.13(1) or under Sec.13(1A) of theAct.55. Reliance on the Full Bench decision in Hameed doesnot appeal to us. That decision was rendered in the context of aspecific proviso barring an application for eviction by a landlordbefore elapse of a period of one year after he becomes entitledfor his right to recover possession. The purpose of the saidproviso is obvious. Transfer inter vivos merely to facilitate aclaim for eviction should not be entertained. To frown uponsuch transfer inter vivos merely to facilitate a claim forrecovery, a lock in period of one year is specified. The purposeof the said proviso in the context in which it appears in the Mat. Appeal No. 213 of 2008 -: 46 :-Kerala Building (Lease and Rent Control) Act is totally differentfrom the stipulation of the period of one year after securing adecree for restitution of conjugal rights under Sec.13(1A)(ii) ofthe Act. Moreover it is conceded that on the date when theamendment was sought to include the claim under Section 13(1A), the ground did admittedly exist. Hameed was not a casewhere in a validly instituted petition, a subsequent developmentwas sought to be brought to the notice of the Court and a reliefto which the claimant was entitled in law on the date of theamendment was claimed by amendment. In Hameed the verypetition was not maintainable on the date of presentation and thesubsequent curing of the defect by elapse of time did not savethe petition. That is all that was held in Hameed. We areunable to accept that the dictum in Hameed can in any wayjustify the non-entertainment of the claim for divorce underSec.13(1A) by amendment of the pleadings during the pendencyof a petition for divorce.56. No other contentions are raised. We are satisfied thatthe court below was obviously in error in coming to theconclusion that the husband is guilty of a wrong under Sec.23(1)(a) as to justify the withholding of the decree of divorce underSec.13(1A)(ii). Mat. Appeal No. 213 of 2008 -: 47 :-57. In the result:(a) This appeal is allowed.(b) The impugned order is set aside.(c) It is held that the husband/appellant is entitled for adecree for divorce under Sec.13(1A)(ii) of the Act and that hisclaim for such relief is not barred under Sec.23(1)(a) of the Act.(d) The marriage between the appellant and the respondentsolemnized on 26/1/2000 shall hence stand dissolved underSec.13(1A)(ii) of the Act.58. The learned counsel for the respondent wants it to bespecified that right to receive maintenance shall continue. Thelearned counsel for the appellant does not dispute that liabilityand asserts that maintenance which is liable to be paid as perthe order in M.C.No.40/02 as may be modified from time to timeshall be paid by the appellant without demur. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge)Nan///true copy//P.S. to Judge