(1) This is an appeal by a husband whose petition for a decree for divorce, was dismissed by the Civil Judge, Bangalore. The ground on which the divorce was sought, was that the wife (the respondent) had not complied with a decree for restitution of conjugal rights, for a period of over two years after passing of the decree.
(2) Certain facts which are not in dispute may be stated at the outset. The spouses are Hindus and were married in February 1955. The marriage was consummated a few months later. The appellant has been residing in Magadi Road, Bangalore, in a joint family home consisting of his parents, his seven brothers four of whom are married, their wives, and children. After living with her husband till May 1956, the respondent went to her parents house in Malleswaram, Bangalore. In November 1956 she gave birth to a son. She continued to live in her parents' house.
(3) On 18-4-1958 the husband filed a petition against the wife under section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), praying for a decree for restitution of conjugal rights. The parties entered into a compromise, under which the wife agreed to go and live with her husband who agreed to take her back and live cordially with her as before.
(4) The District Judge, Bangalore, made a decree on 13-8-59 in terms of the compromise. Two days later i.e. on 15-8-1959, the respondent, accompanied by her son and her elder sister, returned to her husband's house. The learned Advocates for the parties before the learned District Judge, were also present there at that time, presumably to facilitate rapprochement between the parties. Six days later, the respondent, her son, and her elder sister left her husband's house in the afternoon when he had gone to work, and came back to her parents' house where she has been residing since then. On 22-8-1959 she wrote a letter (Exhibit D-1) to her husband requesting him to come to her parents' house, to offer her protection, and to take her. To this he sent a reply (Exhibit D-7) a few days later refusing to come and meet her.
(5) After exchange of notices between the parties, the husband filed the petition for divorce on 29-8-1962. On an application by the wife for maintenance during the pendency of the petition, the husband agreed to pay maintenance at the rate of Rs. 100 per month. We are informed that he has been continuing to pay her maintenance at that rate. On 30-6-1964 the learned Civil Judge dismissed the petition for divorce.
(6) In his petition, the appellant has alleged, inter alia, that a few days after the respondent came to his house in August 1959, she ran away from his house without informing anybody in his house; that since then she had been living in her parents' house; that she had failed to comply with the decree for restitution of conjugal rights made on 13-8-1959 till the date of the petition that she had no sincere desire and willingness to resume the position and duties of a Hindu married wife and live with him; and that she was demanding maintenance for her separate living.
(7) In her statement of objections, the respondent alleged, inter alia, that she went to live with her husband in August 1959 in pursuance of the consent decree for restitution of conjugal rights; that the appellant and the members of his family made wild and untrue allegations against her and her parents; that he did not talk to her or their son, but abused her; that she and her sister were ill-treated by him and other members of his family; that on the fifth day of her stay therein, her husband's father threatened to do away with her life; that she and her sister fled from there out of fear for their lives; that she took refuge in her parents' house where from she wrote several letters to her husband appealing to his mercy and to arrange for their separate living; and that all these had no effect on him.
She has denied that she had no sincere desire or willingness to resume the position and duties of a Hindu wife in the matrimonial home. She has asserted that it was the appellant who was unwilling to live with her. While opposing his prayer for a decree for divorce, she has claimed that if for any reason the Court were to grant such decree, she would be entitled to alimony at the rate of Rs. 150/- per month, having regard to the fact that the appellant's salary was more than Rs. 500/- per month.
(8) Before this Appeal finally came up for hearing, the Advocates for the parties made several attempts to bring about reconciliation between the parties. We also advised them to make an earnest attempt to compose the differences and to live amicably together. But, we were informed subsequently that no settlement was possible. hence we have to decide this appeal on merits.
(9) At the time when the petition for divorce was made, the relevant part of Section 13 of the Hindu Marriage Act, 1955, read as follows:
13. (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(i) ** ** **
(ix) has filed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree.
By the Hindu Marriage Amendment Act (Central Act 44 of 1964), Clauses (viii) and (ix) of sub-section (1) of Section 13, were omitted and in their place, a new sub-section, sub-section (1A), was inserted. The material part of that new sub-section reads:
(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-
(i)** ** **
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of two years or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
(10) We think, it is not necessary to decide the question whether in this appeal the claim of the appellant, for divorce is governed by clause (ix) of Section 13(1), which was in operation when the petition for divorce was filed, or by clause (ii) of sub-section (1A) of Section 13, which is in force now (at the time of rendering decision in the appeal), because the application of either of the provisions would, in our opinion, lead to the same result.
(11) The material question for determination in this appeal is whether the wife has not complied with the decree for restitution of conjugal rights or whether there was no restitution of conjugal rights between the parties, for a period of two years or upwards after the passing of the decree on 13-8-1959.
(12) A large part of the pleadings and an equally large part of the evidence, relate to alleged events and the conduct of parties prior to the decree for restitution of conjugal rights, which, we think, are not relevant; and or the purpose of the present appeal we are only concerned with what happened subsequent to the decree for restitution of conjugal rights.
(13) The appellant who gave evidence as P. W. 1, has deposed that after the compromise in the earlier proceeding, the respondent came to him accompanied by her elder sister and lived with him for only five days, and that when he was away from home on work, she again left his house without informing anybody. He asserted that her allegations of ill-treatment were not true and that she never expressed any displeasure during her stay with him. In his cross-examination he maintained that on the night of her returning to his house they slept together and not separately. He denied that he did not speak to her or their son during her stay in his house; that she and her sister were ill-treated in his house during their stay; that his father was performing Shakti Pooja in their house; and that the respondent was frightened by that Pooja.
(14) The evidence of P. W. 2 Sundara Pandit, father of the appellant, does not throw light on any material question.
(15) R. W. 1 Rajamma is the elder sister of the respondent. She has deposed that on the day she and the respondent went to the appellant's house, the appellant and his father asked the respondent to swear before their family God that she led a chaste life; that she (the respondent) went to share the bed with the appellant on two or three nights; but he asked her to go sway and told her that he married her under compulsion of his father, and that he never liked her; that on hearing what her husband said, she came and slept with the witness; that during their stay, the appellant did not talk to the respondent; and that the appellant's father and other members of their family used to abuse the respondent and her father. The witness added that on Friday the appellant's father threatened to end the life of the respondent; that the appellant's mother also told the witness and the respondent that it was better for them to go away from the appellant's house and that the witness and the respondent left that house out of fear.
(16) The respondent who gave evidence as R. W. 5 reiterated what she stated in her objections to the petition. She added that her father-in-law used to perform 'Shakti Pooja' in his house later in the nights and used to ask her to take 'prasada' which she did not like. She also stated that that she herself went to her husband's house twice or thrice accompanied by her mother, but he would not allow her into his house. She has further stated in her evidence that she was prepared to live with her husband if he was willing to set up a home separate from the joint family house.
(17) As to what transpired during the short stay of the respondent in her husband's house after the compromise decree, we have only the uncorroborated testimony of the appellant on one side and the testimony of the respondent and her elder sister on the other. The parties are necessarily interested witnesses. Even R. W. 1 Rajamma, the elder sister of the respondent also cannot be regarded as a disinterested witness. But the evidence on the side of the respondent receives corroboration from the contents of her letter (Exhibit D-1) addressed to her husband within a day or two after her coming away from the matrimonial home.
In that letter she has stated how much she was pained by her husband expressing his suspicion about her conduct and by the aspersions made against her parents and her sister. She has also given expression to her grief at his not even taking to her and to their son during their brief stay. She has also referred to the menacing attitude of his father and the circumstances in which she had to leave the matrimonial home during the absence of the appellant. It is also significant that in this letter she implored her husband to come to her parents' house so that she might give vent to her grief and anguish.
(18) It is difficult to imagine that so soon after her seeking refuge in her parents' house, the respondent had, in that letter, woven a false story forestalling a move for divorce by her husband. In the light of the contents of the letter, Ex. D-1, we think the case put forward by the respondent, is more probable than that by the appellant. Even according to the evidence of the appellant, on the very day the respondent came to his house he slept with her. This negatives the contention that when she came back to the matrimonial home she had no intention to resume the marital relationship with her husband. We think the learned Civil Judge was right in believing the evidence of the respondent and her sister in preference to that of the appellant in coming to the conclusion that it was the appellant who obstructed the resumption of the marital life between the spouses, and that the respondent had to leave the matrimonial home on account of his refusal to cohabit with her, and on account of the ill-treatment meted out to her by him and other members of his family.
(19) Mr. M. S. Gopal, learned counsel for the appellant, contended that the respondent had not complied with the decree for restitution of conjugal rights inasmuch as she left the matrimonial home again within a few days of her going there in August 1959, and has been living with her parents continuously since then.
(20) As the respondent offered to fulfill her marital obligations to her husband, but he refused her access to him and denied his society to her, we think it is not open to the husband to complaint hat the wife has not complied with the decree for restitution of conjugal rights. The view we have taken receives support from the following observations of Dua, J., (as he then was) in M. P. Shreevastava v. Mrs. Veena .
'The decree of restitution of conjugal rights, in my opinion, can be obeyed and satisfied if the wife goes and lives with the husband as a wife or reasonably does all she can in this direction. In other words, if the conjugal rights of the aggrieved party have been restored then the decree must be deemed to be satisfied and the particular grievance redressed. In case, however, the judgment-debtor is willing to obey the decree but the unjustified obstruction towards the performance of the decree comes from the decree-holder, then in my opinion, the judgment-debtor would be fully entitled to approach the court and pray that the decree-holder may not fraudulently and mala fide utilise this decree for the purpose of securing a decree for divorce.'
(21) But Mr. Gopal argued that the decree for restitution of conjugal rights, cannot be regarded as being satisfied unless the wife against whom the decree is made, lives with her husband continuously thereafter and that if after cohabiting with her husband for some time she again left the matrimonial home, there was no compliance with the decree. According to Mr. Gopal a decree for restitution of conjugal rights imposes a continuing obligation on the wife to live with the husband until either of them dies.
(22) A contention somewhat similar to that advanced by Mr. Gopal, was considered and rejected by this Court in Mallappa v. Kallavva, 1965-2 Mys LJ 659. There also, in pursuance of a decree for restitution of conjugal rights, the wife went to her husband's house and lived for about a year. On accounts of ill-treatment by him and his mistress, she left the matrimonial home. It was contended there on behalf of the husband, that clause (ix) of Section 13(1) of the Act creates a right to obtain a decree for divorce in all cases where there is no continuous compliance with the decree for restitution of conjugal rights during the period of at least 2 years and that an application for divorce cannot be resisted except upon proof of uninterrupted cohabitation during a minimum period of two years following the decree for restitution of conjugal rights.
It was also contended there that as the wife resided in the matrimonial home for only a period of one year after the decree, there was failure on her part to comply with the decree. Repelling that contention, this is what Somnath Iyer, J, who spoke for the Bench, said:
'The failure to which the clause refers, is not the failure to continuously obey the decree for a period of two years or upwards, but, failure to obey within that period. In other words, the failure which is material for the purpose of the clause is failure for a period of two years or upwards to comply with the decree for restitution of conjugal rights, and not the failure to obey the decree without intermission over a period of two years or upwards.'
(23) If clause (ix) cannot be understood as referring tot he failure to obey continuously the decree for a period of two years, much less can it be understood as contemplating continuous obedience to the decree even beyond the period of two years, and until the death of one of the spouses. Thus we cannot accept the contention of Mr.Gopal that the decree for restitution of conjugal rights was not complied with in the present case by the mere returning of the wife to the matrimonial home or even by the mere resumption of cohabitation between the spouses, unless she lived continuously with her husband thereafter.
(24) But Mr.Gopal argued that if the mere act of returning to the matrimonial home and a brief stay therein, can be regarded as compliance with the decree for restitution of conjugal rights, the wife against whom such decree is made, can easily defeat the purpose of the decree by a make-believe return to the matrimonial home and then leaving therefrom. There is considerable force in the argument that in order to constitute compliance with such a decree there must be genuine attempt or intention on the part of the wife to return to her husband. But that is not to say that even where the wife returns to the matrimonial home, lives there with a genuine intention to revive cohabitation with her husband and has to leave that home after some time on account of the hostile attitude of the husband, there is no compliance with such decree.
(25) However, Mr. Gopal urged that in the present case the shortness of the period of her stay, namely, 5 of 6 days, in the appellant's house, would indicate that she had no genuine intention of resuming the martial life with her husband and it was merely a make-believe act on her part to defeat any attempt of the husband to get a divorce. But this argument overlooks that what led her to leave the matrimonial home were the refusal of the appellant to revive the conjugal relationship with his wife, and the ill-treatment meted out to her in his home. The contents of the letter, Exhibit D-1, written by her to her husband just one or two days after her leaving the matrimonial home, indicate that she had a genuine desire to live with him, but had to leave his house on account of ill-treatment.
(26) Mr. Gopal next argued that the offer made by the respondent in her statement of objections that she would join her husband if he would set up a separate house-hold, shows that she had go genuine desire to return to the matrimonial home where her husband was living with his other members of his family. Mr. Gopal argued that it was the duty of the wife to live with her husband and obey him without dictating her own term that he should live away from the joint family residence.
(27) The statement of objections of the respondent was filed on 24-11-1962 i.e., more than three years after she left the matrimonial home. Her intention in the year 1959 cannot be judged from what she has stated in that statement in the year 1962. It may be, that the attitude of the appellant during those three years, led her to believe that there was no possibility of her living amicably with her husband if he continued to live in the joint family residence. But that does not mean that in August 1959 when she returned to the matrimonial home, she was not prepared to live with her husband in the joint family house.
(28) Mr. Gopal also commented on the claim for alimony put forward by the respondent in her statement of objections. According to Mr. Gopal, this claim could indicate that she never had any genuine intention to live with her husband but only wanted to have separate maintenance. We see no substance in this contention. She has resisted her husband's prayer for a decree for divorce, and has only pleaded in the alternative that, should any decree for divorce, be made, she was entitled to alimony. We think nothing strange or unreasonable in this attitude on her part. From the mere fact that she made such a claim in the alternative, we cannot reasonably infer that she had no genuine desire to resume the marital life with her husband when she went to the matrimonial home in the year 1959.
(29) Mr. Gopal invited our attention to two English decisions, (1948) 2 All E. R. 858; and (1952) 1 All E. R. 1076-which have explained what would constitute the condonation of desertion, and whether the spouses living together for a short time in an attempt at reconciliation, would bring about termination of desertion. We think these decisions have no relevance because in the present case we are concerned only with the question of compliance with a decree for restitution of conjugal rights, and not with the question of desertion.
(30) There is yet another reason why the petition for a decree for divorce should fail. Section 23(1)(a) of the Act provided that even if any of the grounds for granting a relief under the Act exists, the Court shall decree such relief only when it is satisfied that the petitioner has not, in any way, taken advantage of his or her own wrong or disability for the purpose of such relief. As we have already held, that the appellant refused to resume cohabitation with the respondent even when she offered to perform her marital obligation and that he ill-treated her, we should refuse the relief of divorce even assuming for the sake of argument that he had grounds to pray for that relief.
(31) This appeal, therefore, fails and is dismissed. However, we make no order as to costs.
(32) Appeal dismissed