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Pavuluri Murahari Rao Vs. Povuluri Vasantha Manohari - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal Against Order No. 78 of 1980
Judge
Reported inAIR1984AP54
ActsHindu Marriage Act, 1955 - Sections 13(1-A) and 23(1)
AppellantPavuluri Murahari Rao
RespondentPovuluri Vasantha Manohari
Appellant AdvocateM. Chandrasekhara Rao, Adv.
Respondent AdvocateB.V. Subbaiah, Adv.
Excerpt:
.....of marriage on ground that wife did not comply with earlier decree passed for restitution of conjugal rights - no genuineness found in grounds alleged - husband tried to create and make out grounds for divorce with ulterior motive - held, decree for dissolution of marriage cannot be granted. - - the petition was rodered on 9-7-1976. as the respondent-wife failed to comply with the decree, e. 36/1976 as well as subsequent to the same and that he alone was causing obstructions to the respondent to come and live with him and lead marital life. in any proceedings 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..........the context of the concept of wrong-disability that section 23(1)(a) provided that the court shall decree relief under the act only if any of the grounds for granting relief existed and the petitioner was not in any way taking advantage of his or her own wrong or disability for the purpose of such relief. the concept of wrong-disability which was hitherto the sole basis of relief under the act has now, in part, given way to the concept of a broken-down marriage irrespective of wrong or disability. to my mind it is not permissible to apply the provisions of section 23(1)(a) based as they are on the concept of wrong-disability to proceedings in which relief is claimed under section 13(1-a) or section 13-b based as they are on the concept of broken down marriage.'again at page 178 (of air.....
Judgment:

Rama Rao, J.

1. The appellant is the petitioner in O. P. 76 of 1977. The petition was filed under Section 13(1-A)(ii) of the Hindu Marriage Act seeking dissolution of the marriage on the ground that the respondent-wife did not comply with the earlier decree passed for restitution of conjugal rights in O. P. No. 36 of 1976.

2. The essential averments in support of the petitioner are that the marriage was celebrated on 27-4-1975 and subsequent to the marriage the respondent-wife came and lived with the petitioner for a few days, and left the house and thereafter the petitioner made several attempts to persuade the respondent to come and live with him, but she refused to do so and continued to stay at her parents house at Gudavalli Village and the petitioner was obliged to file O. P. No. 36 of 1976 on the file of the Court of the Subordinate Judge, Tenali, for restitution of conjugal rights against the respondent. The petition was rodered on 9-7-1976. As the respondent-wife failed to comply with the decree, E. P. No. 35 of 1977 was filed by the petitioner and a notice was issued to the respondent. In spite of the same she refused to join and live with him. Hterefore, the petition for dissolution of marriage was filed. Subsequently, an amendment petition was also filed to the effect that the respondent deserted the petitioner for a continuous period of not less that two years.

3. In the counter-affidavit filed by the respondent-wife it is stated that the petitioner refused to allow her to come and live with him as her father did not pay the amount demanded by the petitioner. The respondent's father paid an amount of Rs. 14,000/- for her benefit to the father of the petitioner and the said amount was utilised for their own family benefit and when the petitioner and his father again demanded to pay the balance amount of Rs. 6,000/- her father insisted that account should be rendered for the amount already paid to them. It is also stated that her father agreed to deposit the said balance amount of Rs. 6,000/- in her name in any Bank. But the petitioner and his father refused to agree for such a course and insisted that they would not allow her to come and live with the petitioner unless and until the balance amount of Rs. 6,000/- was paid to them. It is further stated that she was always willing to go and live with the petitioner, and that when the petitioner filed O. P. No. 37/76 she appeared before the Court and gave her consent to live with the petitioner and on that basis the Court allowed O. P. 36/76. Subsequent to the passing of the said decree, she made efforts to go and live with the petitioner, but the petitioner alone was refusing to take her back unless the balance amount of Rupees 6,000/- was paid to him. Therefore, she was not at fault in complying with the directions given by the Court in O. P. No. 36/76. It is also stated that in the execution petition filed against her in O. P. 36/1976 the petitioner managed to obtain a false endorsement of refusal on the notice and set her ex parte in those proceedings and after coming to know about the same a petition was filed for setting aside the ex parte order and in the meanwhile the execution petition was dismissed for default. It is further stated that the petitioner was never willing to take her back and live with her and O. P. 36/1976 and Execution Petition No. 35/77 were filed only with a view to create a ground for divorce and as such the present petition is not maintainable. It is also stated that she never deserted the petitioner.

The sole issue for consideration before the Court below was whether the petitioner is entitled to dissolution of the marriage under Section 13(1-A)(ii) of the Hindu Marriage Act. On a survey of decisions, the Court below came to the conclusion that Section 13(1-A)(ii) is subject to the provisions of Section 23(1)(a) of the Hindu Marriage Act. The Court below held that the petitioner alone was at fault both prior to the passing of the decree in O. P. 36/1976 as well as subsequent to the same and that he alone was causing obstructions to the respondent to come and live with him and lead marital life. The finding was arrived at by the Court below that the petitioner managed to obtain a false endorsement of refusal on the notice in E. P. 35/1977 and that the bona fide of the respondent are evident from the prompt action taken by her in filing a petition for setting aside the ex parte order passed against her in E. P. 35/1977.

4. The learned counsel appearing for the appellant contended that the expiry of one year from the date of the decree for restitution of conjugal rights is by itself sufficient to enable the petitioner-appellant to ask for dissolution of marriage under Section 13(1-A)(ii) of the Hindu Marriage Act and that this petition was filed more than one year after the decree was passed and as such the decree for dissolution of marriage is automatic. The learned counsel for the respondent contended that Section 13(1-A)(ii) is subject to the provisions of Section 23(1)(a) of the Act and that the reprehensible conduct displayed by the petitioner both anterior to and also subsequent to the decree disentitle the petitioner to seek for relief of dissolution of the marriage and that after the expiry of one year the decree for dissolution does not follow automatically in view of misconduct.

5. To appreciate the rival contentions it is necessary to have a close-up of Section 13(1-A) and Section 23(1)(a) of the Hindu Marriage Act to the extent relevant:-

'13. Divorce:- (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-

(1-A) Either party to a marriage, whether solemnized 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) that there has been resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year ro upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.'

'23. Decree in proceedings: In any proceedings 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'

Section 13(1-A) apparently and substantially is aimed at enabling the husband or wife to seek divorce on the expiry of period of one year from the date of decree of judicial separation or restitution of conjugal right. When considered in isolation this is time bound operative provision and f the decree for judicial separation or restitution of conjugal rights continues to be intact for one year without semblance of conciliation or reapproachment the right to either party to get divorce ripens. The controversy in this case centres round the interaction of Section 13(1-A) and Section 23(1)(a) and whether Section 13(1-A) is bogged down or controlled by Section 23(1)(a) and the stretch of 'wrong' adumbrated in Section 23(1)(a) or whether Section 13(1-A) works out independently without alignment with Section 23(1)(a).

6. The learned counsel for the petitioner invited to the decision of this Court reported in N. Varalakshmi v. N. V. Hanumantha Rao, : AIR1978AP6 . In this case the husband filed a petition against the wife for judicial separation on the ground that the wife without reasonable cause deserted him. The decree for judicial separation was passed on 2-12-1966. On 9-12-1968 the petition was filed by the husband for divorce. Admittedly there was no resumption of cohabitation. It was contended on behalf of the wife that she made attempts for resumption of cohabitation and the husband thwarted the attempts and as such the party who obtained decree for judicial separation is not entitled for decree for divorce. The division Bench consisting of S. H. Sheth and Jeevan Reddy, JJ. Held on interpretation of Section 13(1-A) of the Hindu Marriage Act that the husband was entitled to decree for divorce in the absence of resumption of cohabitation by volition of both the parties within two years after the decree for judicial separation was passed. In this decision the impact of Section 23(1)(a) was not considered and on the terms of Section 13(1-A) it was held that the party is entitled to divorce by efflux of time in the absence of reconciliation. Again in M. Suryakantham v. M. Ranga Rao, (1973) 1 Andh WR 158, this Court did not consider the import of Section 23(1)(a) and it was held that the husband is entitled for divorce even though he did not take steps to execute the decree for restitution of conjugal rights. The learned counsel for the appellant heavily elied upon the Full Bench decision of the Punjab and Haryana High Court reported in Bimla Devi v. Singh Raj. . In this case after marriage on 8-11-1968, the wife stayed with her husband for a day and returned to her parents house. The wife filed a petition under Section 12 (of the Hindu Marriage Act 1955 which was dismissed. Later the husband filed a petition for restitution of conjugal rights on the ground that the wife has withdrawn from his society without reasonable cause. This application was allowed by an order dt. 12-11-1970. The appeals filed as against the said order were dismissed on 25-10-1972. On 21-12-1972 the wife filed a petition under Section 13(1-A)(ii) of the Act claiming a decree for divorce. In the context of considering the issue whether the provisions of Section 13(1-A) are subject to Section 23(1)(a) of the Act, Dhillon, J., held as follows at page 174 (of AIR 1977 Punj & Har).:

'We are, therefore, inclined to hold that in a case covered under Section 13(1-A)(ii) of the Act, either of the partities can apply for dissolution of marriage by a decree for divorce if it is able to show that 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 a decree for restitution of conjugal rights in proceedings in which they were parties. The plea that the party against whom such decree was passed filed to comply with the decree or that the party in whose favour the decree was passed took definite steps to comply with the decree and the defaulting party did not comply with the decree and therefore such an act be taken to be taking advantage of his or her own wrong would not be available to the party, who is opposing the grant of divorce under clause (ii) of sub-section (1-A) of Sec. 13 of the Act.'

At page 175 it is observed as follows :-

'As has been pointed out, the policy of the legislature by making amendments to the provisions of Section 13 appears to be to liberalise divorce so that the broken marriages are dissolved and the parties to the marriage are freed from the bonds as they are unable to live together in spite of opportunities having been given to resolve the differences and to live together.'

The above passages indicate that Section 13(1-A) was considered in isolation and regarding the impact of Section 23(1)(a) it is held as follows at page 176 (of AIR 1977 Punj & Har):-

'It may, however, be observed that it may not be understood to have been held that the provisions of Section 13(1-A) are not subject to the provisions of Section 23(1)(a). But, in fact what we have held is that a defaulting spouse, who has suffered a decree for restitution of conjugal rights, cannot be held to be taking advantage of his or her own wrong merely because he or she has failed to comply with the decree of restitution of conjugal rights. Human inegnuity being what it is, it cannot be disputed that many cases may arise, where notwithstanding that a ground for divorce exists, there may be something in the conduct of the petitioner which would be so reprehensible that the Court would deny to such a petitioner relief by way of divorce on the consideration that the petitioner was taking advantage of his or her own wrong.'

7. The essence of the principle propounded is that the non-compliance with the decree simpliciter does not inhibit the party to ask for a relief of divorce but the party forfeits the right for such relief in the event of display of reprehensible conduct. Chinnappa Reddy, J., concurring with the ultimate conclusion reached by Dhillon, J., delivered a separate judgment wherein a divergent opinion is expressed regarding the impact of Section 23(1)(a) and it is observed as follows at page 177 (of AIR 1977 Punj & Har):-

'Before 1964, the hole scheme of the Act in relation to decrees for restitution of conjugal rights, judicial separation and divorce was based on the concepts of wrong and disability. The Court was not to concern itself with the fact of breakdown of the marriage but with who had committed wrong or who was suffering from disability. It was in the context of the concept of wrong-disability that Section 23(1)(a) provided that the Court shall decree relief under the Act only if any of the grounds for granting relief existed and the petitioner was not in any way taking advantage of his or her own wrong or disability for the purpose of such relief. The concept of wrong-disability which was hitherto the sole basis of relief under the Act has now, in part, given way to the concept of a broken-down marriage irrespective of wrong or disability. To my mind it is not permissible to apply the provisions of Section 23(1)(a) based as they are on the concept of wrong-disability to proceedings in which relief is claimed under Section 13(1-A) or Section 13-B based as they are on the concept of broken down marriage.'

Again at page 178 (of AIR 1977 Punj & Har) it is held as follows :-

'It is true that if Section 23(1)(a) is applicable to proceedings based on Section 13(1-A), it is difficult to visualize what wrong other than non-resumption of cohabitation or non-restitution of conjugal rights can preclude relief. But failure, at present, to contemplate such a situation is neither here nor there, since one cannot pre-empt all future situations. The only reasonable way of construing the provisions and giving effect to legislative intent is to say that Section 23(1)(a) applies to cases based on the concept. At any rate, the wrong or disability contemplated by Section 23(1)(a) is not the non-resumption of cohabitation or the non-restitution of conjugal rights which is the basis of Section 13(1-A).'

Chinnappa Reddy, J. held that the efflux of time stipulated in Section 13(1-A) is the starter for the crystallisation of right to seek divorce and the object of Section 13(1-A) is to give clearance and neat exit to broken down marriage and is not subject to Section 23(1)(a). inspired by the ratiocination of Chinnappa Reddy, J., the learned counsel for the appellant contended that in view of the lapse of one year from the date of decree for restitution of conjugal rights the divorce is an automatic and necessary follow up. The learned counsel for the respondent contended that the Delhi High Court took a different view and that the view taken by Chinnappa Reddy, J. is no longer good law in view of the decision of the Supreme Court in Dharmendra Kumar v. Usha Kumar, : [1978]1SCR315 . In Gajna Devi v. Purushotam Gire, : AIR1977Delhi178 , the essential facts are that the ex parte decree for judicial separation was passed on 30-3-1966 at the instance of the husband. The petition was filed under Section 13(1-A) of the Act for divorce on 19-7-1972. The plea taken by wife was that there was resumption of cohabitation and the husband is not entitled to relief as he is taking advantage of his own wrong. The plea of resumption of cohabitation was negativeed. The attempt at harmonising Sec. 13(1-A) and 23(1)(a) was made by Misra, J., by holding that the matrimonial offence which was foundation of the previous decree for separation or restitution of conjugal rights cannot be pressed into service as a defence against the relief sought but the existence of certain facts or circumstances relevant to the decree should be the criterion and it is observed as follows at page 183:-

'In my view, the expression 'petitioner is not in any way taking advantage of his or her own wrong' occurring in Cl. (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(1-A) of the Act subsequently to the passing of the decree for judicial separation or restitution of conjugal rights. In such a case, a party is not taking advantage of his own wrong but of the legal right following upon the passing of the decree and the failure of the parties to comply with the decree or resumption of cohabitation after its passing. Nevertheless, if after the passing of the previous decree, any other facts or circumstances occur, which in view of sub-section (1) of Section 23 of the Act disentitle the spouse from obtaining the relief of dissolution of marriage by a decree of divorce under Section 13(1-A) of the Act, the same can be legitimately taken into consideration and must be given due effect.'

In : [1978]1SCR315 (supra) the wife was granted a decree for restitution of conjugal rights on 27-8-1973. Two years after the said decree on 28-10-1975 she presented a petition under Sec. 13(1-A)(ii) of the Act for dissolution of the marriage by a decree of divorce. The husband admitted that there was no restitution of conjugal rights between the parties subsequent to the passing of the decree but stated that he made attempts to comply with the decree by writing several registered letters to the wife inviting her to live with him. According to him the wife herself prevented the restitution of conjugal rights and seeks to make a capital out of her own wrong. In this context the interaction of Section 23(1)(a) and 13(1-A)(ii) is considered. Endorsing the view taken by the Delhi High Court in : AIR1977Delhi178 (supra) it is held as follows at page 2220.

'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.'

8. In view of the prefatory portion in Section 23(1)(a) namely ' in any proceedings under this Act' the effect of Section 23(1)(a) is injected into all proceedings under the Act unless there is exclusion expressly or by implication. Section 13(1-A) without the strings of Section 23(1)(a) contemplates the culmination of decree for divorce one year subsequent to the decree for judicial separation or restitution of conjugal rights and either party can seek the relief with immunity from being attributed with lapses or disabilities. The ouster of the applicability of Section 23(1)(a) is not discerned in Section 13(1-A) and the reconciliation between the two provisions was done by the Delhi High Court in the interests of harmonious interpretation. In consonance with the projection of the concept of reprehensible conduct making a dent on unfettered sway of Section 13(1-A) enunciated by Dhillon, J., in (supra), Mishra, J., in : AIR1977Delhi178 (supra) held that the matrimonial offence constituting the foundation for the decree for restitution of conjugal rights or judicial separation cannot be exploited for defence against the petition for divorce but the facts or the circumstances subsequent to the former decree to disentitle the spouse from obtaining relief can be availed of in terms of Section 23(1)(a). this view is endorsed by the Supreme Court in : [1978]1SCR315 (supra) by holding that mere disinclination to respond to offer of reunion is not sufficient but the display of misconduct which is serious enough to come within the brackets of 'wrong' should be shown. Though there is no reference to the decision of the Punjab and Haryana High Court in : [1978]1SCR315 (supra) it is patent that the view taken by Dhillong, J., regarding reprehensible conduct is blessed by the Supreme Court and the extreme view taken by Chinnappa Reddy, J., is toned down and not approved. We are unable to subscribe to the view taken by Chinnappa Reddy, J. Section 23(1)(a) holds the reins over Section 13(1-A) and the person cannot make capital out of own wrong and the relief will be denied in the event of this conduct notwithstanding the efflux of time stipulated in Sec. 13(1-A).

9. Having regard to the principles hereinbefore adverted to it has to be considered whether the petitioner contributed to misconduct and thereby forfeited the right to obtain the relief of dissolution of marriage. The Court below held that the petitioner was at fault solely both prior to and subsequent to the decree in O. P. 36/1976. The conduct anterior to the decree should not be permitted to cast a shadow and the subsequent conduct alone is germane. The veiled intrigue by the petitioner to trap the respondent into a decree for, dissolution ultimately is reflected from his conduct. The court below found that he managed to get refusal of endorsement on the notice in E. P. 35/1977 and when the wife was alerted and when she took steps to set aside the ex parte order the petitioner slowed down the process and the execution petition was dismissed for default on 11-7-1977. Exs. B-9, B-11 to B-13 are letters sent by the respondent subsequent to decree in O. P. 36/1976 requesting the principal of Amaravathi College to intervene and settle the matter amicably. The factum of writing these letters is admitted by the petitioner in his letters in Ex. B-5 and B-6. The principal also sent a letter Ex. B-7 to the respondent expressing his helplessness in the matter and infusing courage in her. Ex. B-18 a letter dated 22-6-1977 sent by Principal also discloses that the respondent was making efforts through mediators to go and live with the petitioner. The monetary aspect alone loomed large in the mind of the petitioner and his attempts at restitution of conjugal rights is a make believe affair and evolved as a stepping stone to get a decree for divorce. In the circumstances, it is obvious that the move of the petitioner throughout is prompted by consideration of getting money from the parents of the respondent. Another thing is that there is absolutely no trace of genuineness and he is trying to create and make out grounds for divorce with ulterior motive.

10. In the result, the appeal is dismissed with costs.

11. Application dismissed.


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