1. The plaintiff sues for dissolution of her marriage with the defendant on the ground that the defendant had married again before the coming into operation of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, and his second wife was living at the time of the institution of the suit. The parties are Hindus.
2. Various allegations were made in the plaint as well as in the written statement and counter-claim of the defendant. But learned counsel for the parties have stated before me that the hearing of the suit may proceed on certain undisputed facts. The facts, which are common ground now, are that the plaintiff was married to the defendant in 1938- The defendant married a second wife in December 1941. The plaintiff continued to reside with the defendant till 1951.
Between 1941, that is, after the second marriage of the defendant, and 1951 the plaintiff had four children born of the defendant. It is also common ground that the plaintiff and the defendant have not lived together after 1951 and that the defendant's second wife is alive. There are three daughters of the marriage. The eldest daughter is 13 years old and the other two are 9 and 3 years old respectively.
3. One of the two issues raised on behalf of the defendant relates to the custody of the two younger daughters who are now living with the plaintiff. The main issue raised on behalf of the defendant is whether the plaintiff by living and cohabiting with the defendant for ten years after the second marriage condoned the alleged matrimonial offence. The short question, therefore, that arises for my determination is whether there can be, and has been, condonation of the second marriage of the defendant, which has been described as a matrimonial offence.
4. Miss Samant, learned counsel for the plaintiff, has strongly relied on Section 3(2), Bombay Hindu Divorce Act (Bom. 22 of 1947), which is as follows:
'3(2) A wife may also sue for divorce on the ground that her husband had married again before the coming into operation of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, and such wife is living at the time of the Institution of the suit'.
The argument was stressed that this sub-section gives a statutory right to the wife. The argument proceeded that the sub-section gives an absolute right, to the wife to sue for divorce if she is able to prove that the husband had contracted a second marriage before the coming into operation of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946. It was urged that there can be no question of condonation when dissolution is sought on the ground of second marriage by the husband.
5. Mr. S.A. Kirtikar, learned counsel for the defendant, has zealously argued the case before me and urged that the rule about condonation is applicable to a case of the second marriage contracted by a husband prior to the coining into operation of the Act of 1946. It was said that there could be no stronger proof of condonation than that available to the defendant in this case. It was stressed that marital intercourse between the parties continued during the period of ten years after the second marriage.
I agree that if a wife with full knowledge of a marital offence by the husband confirms her forgiveness by reinstating him as her husband and there is a long period during which intercourse takes place between the spouses, that would be conclusive evidence of condonation. But the question, still remains whether the rule about condonation is applicable to the ground under consideration. Learned counsel has argued that the second marriage must be regarded as a matrimonial offence, and if it be so regarded, the defendant must succeed on the facts of this case.
Mr. Kirtikar has also argued the case from another aspect of the matter and urged that on the facts of this case it would be inequitable to grant a decree for divorce to the plaintiff. Reliance was placed on two decisions of the Court of Appeal in England. One was 'Tindall v. Tindall' (1953) 1 All ER 139 (A). In that case the question arose on an answer filed by the wife to a petition for divorce filed by the. husband on the ground of the wife's desertion. The answer was by way of denial of the allegation of desertion and way of a cross-prayer for nullity on the ground of non-consummation of marriage.
There had been some previous proceedings between the parties. In those proceedings this ground of non-consummation of marriage had not been urged by the wife till 1951 although she had full knowledge in 1947 of the fact and also of the law relating to nullity. Those proceedings instituted by her were based on the existence of the validity of the marriage. It was in the wake of these facts that the Court of Appeal came to the conclusion that she having approbated the marriage it was inequitable and contrary to public policy to allow her to assert the invalidity of the marriage arid obtain a decree of nullity.
Mr. Kirtikar has drawn my attention to certain observations of Singleton L.J. in this case, but it is not necessary to set out those observations. I need only add that the case was decided on the ground, already stated by me, that it would be inequitable and contrary to public policy to entertain in such a case a plea on which nullity of marriage was cross-claimed. 'W. v. W. (1952) 152 (B) was the other decision relied on by Mr. Kirtikar. In that decision also there was approbation and the spouses had adopted a child.
Taking into consideration the conduct of the parties the Court of Appeal came to the conclusion that it would be opposed to public policy to grant a divorce to the husband on the ground of inability of the wife to consummate the marriage. I do not think these decisions lend any real support to the arguments pressed before me on behalf of the defendants.
I do not see anything contrary to public policy if the relief sought by the plaintiff is granted to her. Of course there are discretionary bars to the relief, but this is not a case in which there is any equitable ground for depriving the plaintiff of the relief she seeks. Condonation is the only plea in bar which in this case requires some serious consideration.
6. The solution to this interesting question that arises for my determination must depend on the principle underlying the doctrine of condonation and a reading of Section 3(2) in its proper context and on the scheme and object of the Act. Moreover this sub-section must be read along with some provisions of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, to which Act reference is expressly made in this sub-section.
It will be convenient here to refer to Section 3, Hindu Divorce Act, which lays down the grounds for divorce. Sub-section (1) lays down the grounds which are available both to the husband and the wife. Clause (a) of that sub-section lays down that the impotency of the husband at the time of the marriage, if it has continued till the institution of the suit, is a ground for divorce-Obviously there can be no question of condonation in such a case.
Clause (b) lays down that lunacy of the defendant for a period of not less than seven years before the institution of the suit, or his or her being an idiot, is a ground for divorce. Clause (c) lays down that if the defendant has been suffering from leprosy, not contracted from the plaintiff, for a period of not less than seven years before the institution of the suit, that would be a ground for divorce.
There can be no doubt that in these last two cases no question of condonation can arise. Then Clause (d) lays down that desertion of the plaintiff by the defendant for a continuous period of four years is a ground for divorce. This obviously is a matrimonial offence. Clause (e) enables a spouse to ask for dissolution of marriage when the other spouse has not been heard of as being alive for a period of seven years. This is obviously based on presumption of death.
Lastly Clause (f) lays down that keeping of a concubine by the husband or the wife being the concubine of another person or leading the life of a prostitute can be a ground for divorce. These are instances of marital offences of a very serious character. Legal cruelty is another instance of a matrimonial offence under the Act and though not a ground for dissolution of marriage is a ground for judicial separation.
It will be seen that in case of any of these matrimonial offences there is scope for the offending spouse to draw back and get forgiveness before anything is done to confirm it in law. In casa of a second marriage by the husband which is a ground on which the first wife can ask for divorce the position is widely different.
7. A plain reading of Section 3 and other relevant sections of the Act would suggest that a second marriage contracted by the husband before the coining into operation of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, is not regarded as on par with matrimonial offences and for the simple reason that a second marriage which took place before 1946 cannot be regarded as a matrimonial offence, it being a marriage valid under the Hindu Law.
A marriage is defined in character at the time it is celebrated. The Prevention of Hindu Bigamous Marriages Act, 1946, declared that in case where either or both parties were domiciled in the State of Bombay the bigamous marriage, if contracted after the coming into force of that Act was void.
Therefore, monogamy was to be the rule. A somewhat anomalous position was bound to remain in case of a second marriage contracted by the husband prior to the coming into force of the Act and, therefore, the Legislature, by Section 3(2), gave the first wife the right to ask for dissolution of her marriage contracted under the former system of law which recognised polygamy.
Therefore, the rule laid down in Section 3(2) seems to enact a clear and distinct ground founded on the status of the parties and not on any matrimonial offence. Some support is to be derived for this view from intrinsic evidence. The sub-section confers on the first wife the right to ask for dissolution of her marriage only if the second wife is living at the time of the institution of the suit. The emphasis is on status and not on any marital delinquency.
8. Condonation has been defined from time to time with reference to some particular aspect of it but no compendious definition has been attempted. It is regarded as forgiveness either express or implied for a breach of a matrimonial offence with the implied condition that the offence will not be repeated. In respect of its operation condonation has been defined as a 'blotting out of the offence' so as to restore the offending party to the same position which he or she occupied before the offence was committed.
The phrase 'blotting out of the offence' in this connection is not used in its literal sense, because an offence having been committed cannot actually be blotted out, & because it is recognised that condonation is always coupled with an implied condition of the offending spouse being in future of good behaviour. Where there is no breach of the condition after condonation forgiveness stands as complete, absolute and irrevocable. Therefore, condonation consists of a factum of reinstatement and 'animus remittendi'.
9. Condonation is not the creation of a statute but rests on a broad general principle of law. It rests on the principle that in a case where 'status quo ante' between the spouses has been restored, that which is forgiven must be regarded as forgotten and obliterated. As was observed in an old case, there must be such a complete obliteration of the condoned offence that it cannot be used for any purpose whatever (unless subsequently revived) and the party forgiven becomes 'rectus et integer'.
This to my mind is the very foundation of the doctrine of condonation and this foundation would be lacking, whatever be the attitude of the first wife, in the case of a second marriage by the husband prior to the coming into operation of the Act of `46. In case of a second marriage there can be no 'blotting out', either real or by a legal fiction, which can enable the husband to take refuge under the doctrine of condonation. However orthodox, or forgiving, or generous the first wife may be, the husband in such a case cannot become 'rectus et integer'.
10. Condonation has always to be intentional and unconditional. In case of a petitioner who is the wife the doctrine is not to be applied stringently because the wife is always regarded as 'sub-potestate'. But these considerations apart, I have no doubt that it is only in case of marital injuries which can be obliterated and where 'status quo ante' can be restored that the doctrine of condonation can operate as a bar to a decree for dissolution of marriage.
For all these reasons I am of the opinion that the doctrine of condonation has no application to the ground for divorce enacted by Section 3(2), Bombay Divorce Act. I am not prepared to go so far as to accept the argument that the right conferred on the first wife by this sub-section is absolute. It is not difficult to conceive of the defences that can be open in a case falling under Sub-section (2), but in this case no such consideration arises. The defence of condonation cannot be sustained, and as the ground for divorce is clearly established, a decree for dissolution of marriage must follow.
11. On the facts before me I am not prepared to direct that the custody of the two minor daughters who are living with the plaintiff should be handed over to the defendant.
12. Suit decreed.