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S. Narasimha Bhandary Vs. V. Vijaya Bai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal No. 872 of 1974
Judge
Reported inAIR1978Kant115; ILR1978KAR752; 1978(1)KarLJ429
ActsHindu Marriage Act, 1955 - Sections 10(2); Indian Divorce Act, 1869 - Sections 26; Matrimonial Causes Act, 1965 - Sections 12
AppellantS. Narasimha Bhandary
RespondentV. Vijaya Bai
Appellant AdvocateBalakrishna Rao, Adv.
Respondent AdvocateB.V. Acharya, Adv.
Excerpt:
.....do not flow from this article. - section 10(2) of the act provides that 'where a decree for judicial separation has been passed, it shall no longer 'be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so. if the contention urged on behalf of the respondent is to be accepted, then it would be open to the respondent in a petition for judicial separation who has contested it and failed ultimately to secure rescission of the decree for judicial separation by merely filing a petition under section 10(2) of the act expressing his or her willingness to live with the other..........referred to as the act) in m. c. 3 of t971 on the file of the civil judge, mangalore, for judicial separation from the respondent on the ground that the respondent had without any justifiable reason deserted him. the respondent contested the petition. in the course of her statement of objections filed in that case, she pleaded that she was staying away from her husband on account of cruelty on the part of her husband and that she was not willing to stay with him. the court ultimately upheld the case of the appellant and passed a decree for judicial separation on 17-7-1972.2. the respondent, thereafter filed a petition under section 10(2) of the act on the file of the civil judge, mangalore, out of which this appeal arises, requesting the court to rescind the decree for judicial.....
Judgment:

Venkataramiah, J.

1. The appellant is the husband of the respondent. They were married on 4-12-1966. The appellant filed a petition under Section 10(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) in M. C. 3 of T971 on the file of the Civil Judge, Mangalore, for judicial separation from the respondent on the ground that the respondent had without any justifiable reason deserted him. The respondent contested the petition. In the course of her statement of objections filed in that case, she pleaded that she was staying away from her husband on account of cruelty on the part of her husband and that she was not willing to stay with him. The court ultimately upheld the case of the appellant and passed a decree for judicial separation on 17-7-1972.

2. The respondent, thereafter filed a petition under Section 10(2) of the Act on the file of the Civil Judge, Mangalore, out of which this appeal arises, requesting the Court to rescind the decree for judicial separation. In the course of that petition, she pleaded that on 'deep reflection' she felt that she had committed a mistake in not going back to her husband's house when he asked her to do so before the petition for judicial separation was filed and that she was willing to rejoin her husband and live with him. The rest of the allegations in the petition related to the allegations and counter-allegations which had been made in the previous case. The appellant opposed the petition filed under Section 10(2) of the Act.

3. The Court below allowed the petition. In the course of its order, it observed as follows :

'The sworn testimony of the petitioner goes to show that notwithstanding the past ill treatment of her husband and his mother, she is prepared to have one more chance and I do not find as to why she should not be provided with one more opportunity and find, whether her husband is prepared to meet the marital obligation. I am not convinced that because the petitioner has not proved change in circumstances, she is not entitled to get the relief sought for. The petitioner has proved that she most honestly feels and desires to go to her husband and live with him and I find that the petition should be allowed.'

4. Aggrieved by the order of the court below the appellant has filed this appeal.

5. It is seen from the pleadings filed in the case and the evidence adduced by the parties that the only ground made out by the respondent for claiming relief under Section 10(2) of the Act is that as she was willing to go back and live with her husband, she was entitled to rescission of the decree for judicial separation. Section 10(2) of the Act provides that 'Where a decree for judicial separation has been passed, it shall no longer 'be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.' Unless the court considers that it is just and reasonable to rescind the decree, the application made under Section 10(2) of the Act cannot succeed. It follows that a party to a decree for judicial separation cannot by merely expressing his or her willingness to live with the other spouse claim the rescission of the decree for judicial separation. A decree for judicial separation secures the liberty to the petitioner to live away from the respondent. Either party to the decree would also be entitled to file a petition for dissolution of marriage under Section 13(1-A)(i) of the Act, if there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or^ upwards after the passing of a decree. If the contention urged on behalf of the respondent is to be accepted, then it would be open to the respondent in a petition for judicial separation who has contested it and failed ultimately to secure rescission of the decree for judicial separation by merely filing a petition under Section 10(2) of the Act expressing his or her willingness to live with the other spouse. We do not think that the Parliament intended that such a result should flow from Section 10(2) of the Act.

6. At this stage it is appropriate to refer to corresponding provisions in the Indian Divorce Act, 1869 and the Matrimonial Causes Act, 1965 which is in forest in England, Section 26 of the Indian Divorce Act, 1869 reads as follows:

'26. Decree of separation obtained during absence of husband or wife may be reversed: -- Any husband or wife, upon the application of whose wife or husband, as the case may be, a decree of judicial separation has been pronounced, may, at any time thereafter, present a petition to the Court by which the decree was pronounced, praying for a reversal of such decree, on the ground that it was obtained in his or her absence, and that there was reasonable excuse for the alleged desertion, where desertion was the ground of such decree.

The Court may, on being satisfied of the truth of the allegations of such petition, reverse the decree accordingly; but such reversal shall not prejudice or affect the rights or remedies which any other person would have had, in case it had not been decreed, in respect of any debts, contracts, or acts of the wife incurred, entered into, or done between the times of the sentence of separation and of the reversal thereof.'

The relevant part of S. 12 of the Matrimonial Causes Act, 1965 reads:.............. 12 (3). The court may, on an application by petition of the spouse against whom a decree of judicial separation has been made and on being satisfied that the allegations in the petition are true, rescind the decree at any time on the ground that it was obtained in the absence of the applicant, or if desertion was the ground of the decree, that there was reasonable cause for the alleged desertion.'

It is seen from the above provisions in the Indian Divorce Act and the Matrimonial Causes Act, 1965 that an application for rescission of a decree of judicial separation can be made only on two specific grounds mentioned therein. Section 10(2) of the Act, however, empowers the Court to rescind the decree for judicial separation if it considers it just and reasonable to do so. The statute no doubt, does not refer to any specific grounds on which the decree for judicial separation can be annulled or rescinded. But from a reading of Section 10(2) of the Act, we are of the opinion that a party against whom a decree for judicial separation is passed cannot succeed in getting the decree rescinded, in the absence of other circumstances which justify an order of rescission to be passed, merely by saying that he or she is willing to rejoin and live with the other spouse. The power conferred on the court under Section 10(2) of the Act has to be exercised with great circumspection. In Godabai v. Narayan Zingaji, : AIR1973MP4 the High Court of Madhya Pradesh has taken more or less the same view.

7. We, therefore, feel that in the circumstances of this case, the court belowwas in error in passing an order underSection 10(2) of the Act rescinding the decreefor judicial separation. The order of thecourt below is set aside and the application made under Section 10(2) of the Act isdismissed. The appeal is accordinglyallowed.

8. Appeal allowed.


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