1. This appeal by the wife is directed against the judgment and order, dated 28-7-1978, passed by the Principal Civil Judge, Bangalore City, in M.C.No.14/1977, on his file, decreeing the petition of the husband for dissolution of marriage from the respondent and granting a decree of divorce.
2. The husband N.S. Hirianniah, instituted the petition for divorce under Sections 13 and 13(1A) of the Hindu Marriage Act on 31-1-977 before the Principal Civil Judge, Bangalore City. He averred that the respondent was married to him on 27-2-1967, at Bangalore according to the recognised rites prevalent among Hindus. After the marriage the respondent stayed with him for a period of 2 months and thereafter left his house and was staying thereafter with her brother. The respondent filed M.C. 37/1972 on the file of the Principal Civil Judge, Bangalore City under S. 9 of the Hindu Marriage Act seeking restitution of conjugal rights and the said petition was allowed on 28-6-1975.
3. The husband further averred that the decree did not bring about any reconciliation between the parties as the parties were radically incompatible in their temperaments. They could not live together in harmony. He further submitted that there was no resumption of co-habitation between the parties even after the passing of the decree for restitution of conjugal rights on 26-8-1975. Hence under Section 13(1A) of the Hindu Marriage Act, he instituted the petition for divorce.
4. The wife resisted the petition. Firstly, she contended that the husband could not take advantage of his own wrong. He had defaulted in complying with the decree for restitution of conjugalrights. That being so, he could not make that a ground to bring a petition for divorce. Secondly, she averred that even after the passing of the decree for restitution of conjugal rights, the petitioner-husband demonstrated his disregard for judicial pronouncement and he entirely discarded even to provide for maintenance to the respondent-wife. She had to file a petition for maintenance in C.Mis.519/76, on the file of the Metropolitan Magistrate IV Court, Bangalore, under Section 125 of the Criminal P.C. Inspite of it he has not provided for any maintenance to the respondent-wife. In para-3 of the statement of objections she has averred that the husband-petitioner attempted to marry one Manjula, daughter of Sitaramaiah. The respondent-wife filed O.S.No. 202/1977 on the file of the I Munsiff, Bangalore, for restraining the husband from remarrying and obtained an interim order to that effect. The husband gave an undertaking to the court that he would not remarry during the pendency of the proceedings. Thus, the wife averred that her husband had done his all most to make her life miserable and intolerable. She further asserted in para-4 of her statement of objections that her husband was trying to coerce her to withdraw the proceedings started by her. She has specifically averred thus :
'Having done all this he cannot take undue advantage of his lapses and omissions and he is not entitled for this decree of Divorce prayed for.'
5. The trial Court however, raised only one point for consideration as arising from the pleadings and it reads :
Whether the petitioner is entitled to the relief of decree of divorce prayed for?
Thus, it is seen that the learned Civil Judge did not even apply his mind to raise the proper points. Merely to raise a point stating whether the petitioner is entitled to the relief of decree of divorce prayed for is vague and nebulous. The very purpose of raising the points is defeated.
6. Moreover, there are specific allegations in the statement of objections filed by the wife as to how the husband could not take advantage of his own misconduct and obtain a decree for divorce. We have mentioned above, while summarising the statement of objections, the grounds taken by the wife. They are in main, that the husband failed to maintain the wife; that he was trying to remarry and that he was coercing the wife to withdraw the proceedings brought legitimately by her and to agree for a decree for divorce. This, according to the wife, the conduct of her husband constituted misconduct on his part which disentitles him for a decree for divorce. There is obviously no point raised by the learned Civil Judge, in this behalf.
7. Section 13 of the Hindu Marriage Act has to be read with Section 23 of the said Act and S. 23 reads :
'Decree in proceedings :-
(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that :-
(a) any of the grounds for granting relief exists and the petitioner, (except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of Clause (ii) of Section 5) is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b) Where the ground of the petition is the ground specified in clause 9I) of sub-section (1) of Section 13, the petitioner has not, in any manner, been accessory to or connived at or condoned the act or acts complained of or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and
(bb) xx xx xx xx
(c) xx xx xx xx
(d) there has not been any unnecessary or improper delay in instituting the proceeding, and
(e) there is no other legal ground why relief should not be granted, then, in such a case, but not otherwise, the Court shall decree such relief accordingly.'
Sub-section (2) of that section enjoins on the court a duty in the first instance in every case where it is possible so to do consistently with the nature and circumstances of the case to make every endeavour to bring about a reconciliation between the parties. Sub-section (3) states that for the purpose of aiding the Court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days, and Sub-section (4) enjoins on the Court that when a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost of each of the parties.
8. Thus reading Section 13(1)(A) and Section 23(1)(a) it becomes obvious that the court shall also consider while passing a decree for divorce whether the party seeking for divorce is in any way taking advantage of his or her own wrong or disability for the purpose of such relief. It must make an attempt at reconciliation and then proceed to consider the case for granting divorce if attempt at reconciliation fails.
9. Section 13(1A) speaking of the grounds for divorce states that 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 between the parties to the marriage for a period of one year or upwards after the passing of the decree for restitution of conjugal rights between the parties to the marriage for a period of one year or upwards after the passing of the decree for restitution of conjugal rights in a proceeding to which they were parties.
10. Thus Section 13(1A) gives right to either party to the proceeding to apply for dissolution of marriage by a decree of divorce if there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of the decree for restitution of conjugal rights in a proceeding to which they were parties.
11. The sub-section, however, provides only for a ground for applying for divorce. The circumstances do not ipso facto result in dissolution of marriage. The party must present a petition for the purpose and the court has to grant a decree if satisfied.
12. The sub-section as it stands enables either spouse to apply for divorce on the ground that there has been no resumption of co-habitation between them for a year or more after the passing of a decree for restitution of conjugal rights. There is, however, the question as to the effect of Section 23 on the provisions of Section 13(1A). In Section 23, as quoted above, it is stated that the Court should consider whether a party is trying to take advantage of his or her own wrong for the purpose of relief prayed for and Section 13(1A) enables even the defaulting party to apply for dissolution of marriage by divorce if there has been no resumption of co-habitation between them for a year or more after passing of the decree for restitution of conjugal rights.
13. The question arises whether the conduct on the part of the defaulting spouse would not disable him to ask for a decree for dissolution of marriage.
14. Judicial opinion was conflicting. One view was that Section 13(1A) does not confer an absolute or unrestricted right on a party to obtain a decree for divorce and the court must take into consideration Section 23(1) and not grant relief to a party who is taking advantage of his own wrongs (Laxmibai v. Laxmichand, : 72ITR157(Bom) ; Chamanlal v. Mohinder Devi, ; Someswara v. Leelavathi, AIR 1968 Mys 274 and Jethabai v. Manabai, : AIR1975Bom88 ).
15. Another view was that the court has to reconcile the provisions of Section 13(1A) and Section 23(1) and that the court was under a duty to see under Section 23(1) whether the petitioner under Section 13(1A) is disabled by his conduct, subsequent to the decree, which again amounts to taking advantage of his own wrong, Anil v. Sudhaben, : AIR1978Guj74 ; Bimla Devi v. Singh Raj, (FB), Gajna Devi v. Purushotam, : AIR1977Delhi178 .
16. Yet another view is that the concept of wrong as disability which was the sole basis of relief under the Act has now in part given way to the concept of an irretrievably broken down marriage, irrespective of wrong or disability and that it is not permissible to apply the provisions of S. 23(1) based as they are on the concept of wrong-disability to proceedings in which relief is claimed under S. 13(1A) or 13B (Per Chinnappa Reddy J. in Bimla Devi v. Singh Raj, (FB)).
17. The Supreme Court of India has now set at rest the controversy by rendering its decision Ex cathedra in Dharmendra Kumar v. Usha Kumar : 1SCR315 . His Lordship A.C. Gupta, J. delivering the judgment for the Bench has reconciled and harmonised the provisions contained in Section 13(1A) and S. 23(1) of the Hindu Marriage Act, thus (Para 3):
'Section 13(1-A)(ii) of the Hindu Marriage Act. 1955 allows either party to a marriage to present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for the period specified in the provision after the passing of the decree for restitution of conjugal rights. Sub-section (IA) was introduced in S. 13 by Section 2 of the Hindu Marriage (Amendment) Act, 1964 (44 of 1964). Section 13 as it stood before the 1964 amendment permitted only the spouse who had obtained the decree for restitution of conjugal rights to apply for relief by way of divorce; the party against whom the decree was passed was not given that right. The grounds for granting relief under Section 13 including sub-section (1A) however continue to be subject to the provisions of Section 23 of the Act. We have quoted above the part of S. 23 relevant for the present purpose. It is contended by the appellant that the allegation made in his written statement that the conduct of the petitioner in not responding to his invitations to live with him meant that she was trying to take advantage of her own wrong for the purpose of relief under Section 13(1A)(ii). On the admitted facts, the petitioner was undoubtedly entitled to ask for a decree of divorce. Would the allegation, if true, that she did not respond to her husband's invitation to come and live with him disentitle her to the relief? We do not find it possible to hold that it would. In Ram Kali's case : 1971RLR10 (supra) a Full Bench of the Delhi High Court held that mere non compliance with the decree for restitution does not constitute a wrong within the meaning of Section 23(1)(a) (Relying on and explaining this decision in the later case of Gajna Devi v. Purshotam Giri : AIR1977Delhi178 (supra) a learned Judge of the same high Court observed (at P.182 para 12) 'S.23 existed in the statue book prior to the insertion of Section 13(1A) ...... Had Parliament intended that a party which a guilty of a matrimonial offence and against which a decree for judicial separation or restitution of conjugal rights had been passed, was in view of Section 23 of the Act not entitled to obtain divorce then it would have inserted an exception to Section 13(1A) and with such exemption, the provision of Section 13(1A) would practically become redundant as the guilty party could never reap benefit of obtaining divorce, while the innocent party was entitled to obtain it even under the statute as it was before the amendment. Section 23 of the Act, therefore, cannot be construed so as to make the effect of amendment of the law by insertion of S. 13(1A) nugatory.
............ The expression 'petitioner is not in any way taking advantage of his or her own wrong' occuring in clause (a) of Section 23(1) of the Act does not apply to taking advantage of the statutory right to obtain dissolution of marriage which has been conferred on him by Section 13(1A) ......... In such a case a party is not taking advantage of his own wrong, but of the legal right following upon of the passing of the decree and the failure of the parties to comply with the decree .............' In our opinion the law has been stated correctly in Ram Kali v. Gopal Das (supra) and Gajna Devi v. Purshotam Giri : AIR1977Delhi178 (supra). Therefore, it would not be very reasonable to think that the relief which is available to the spouse against whom a decree for restitution has been passed, should be denied to the one who does not insist on compliance with the decree passed in his or her favour. In order to be a 'wrong' within the meaning of Section 23(1)(a), the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled.'
Thus, the Supreme Court has ruled that Section 23(1) of the Act does not come in the way, if the party wants to take advantage of the statutory right to obtain dissolution of marriage which has been conferred on him or her under Section 13(1A) and as such a party cannot be said to be taking advantage of his own wrong, when he relies on a statutory right. Further, however, the Supreme Court has explained that in order to be a wrong within the meaning of Section 23(1)(a), the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or wife is otherwise entitled. It is in that way that the Supreme Court has reconciled the apparent conflict in Sections 13(1A) and S. 23(1).
18. In the case before us we have shown above that the wife-respondent has averred in her objection statement that there is misconduct on the part of husband serious enough to justify the denial of the relief of divorce. The trial Court has neither raised a point in that behalf nor has it discussed the evidence adduced concerning that aspect. Hence, the decree of the trial Court is vitiated and it cannot be sustained. It would be necessary to direct the trial court to raise a point 'whether the respondent proved the alleged misconduct on the part of her husband and whether it is grave enough to deny a decree for dissolution of marriage'?
19. The learned counsel appearing for the appellant also argued that the petition for divorce is instituted within one year of the decree passed by the High Court and since the decree of the trial court merged with the decree of this court in M.F.A. 637/1975, the petition was premature. The learned Civil Judge has rightly rejected this contention for the reason that this court did not pass a decree on merits. It simply dismissed the appeal as withdrawn. Hence the petition filed is obviously beyond one year after passing of decree for restitution of conjugal rights, dated 29-7-1978.
20. In the result, the appeal is allowed, the impugned judgment and order of the trial court are set aside and the matter is sent back to the trial court with a direction that the Trial Court shall now raise a specific point No.2 : Whether the respondent-wife proves the alleged misconduct on the part of her husband and if so, whether the misconduct is grave enough to deny a decree for dissolution of marriage'. The trial court shall then give an opportunity to the parties to adduce additional evidence in the petition and then proceed to judgment in accordance with law in the light of the observation made above. The parties are directed to be present before the trial court on 12-7-1982. Send back the concerned records forthwith.
21. No costs of this appeal in view of the peculiar facts of this case.
22. Appeal allowed.