Skip to content


Shri Waryam Singh Vs. Smt. Pritpal Kaur - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 47-M of 1960
Judge
Reported inAIR1961P& H320
ActsHindu Marriage Act, 1955 - Sections 13(1)
AppellantShri Waryam Singh
RespondentSmt. Pritpal Kaur
Appellant Advocate K.C. Nayar, Adv.
Respondent Advocate Birinder Singh and; Sardul Singh, Advs.
DispositionAppeal dismissed
Excerpt:
.....under many systems of jurisprudence was a sacred union and it is only lately that a divorce or a judicial separation has received the sanction of law. ' this conclusion of the learned author, in my opinion, is clearly in consonance with the principles governing matrimonial jurisdiction of divorce courts both here and in england. the words 'the other party' in sub-section (1) and 'against that party' in clause (viii), in my mind, provide a key to the construction of this provision and these clearly exclude the right of one of the spouses, namely, the party against whom the decree has been granted to claim the protection of a divorce court for a decree for dissolution of marriage. the decree for judicial separation is of a personal nature and enures only for the benefit of the party in..........(1) of section 13 of the hindu marriage act two years after the passing of a decree for judicial separation when there has been no resumption of cohabitation since then ?2. the parties to this appeal were married on 11th of january 1952, pritpal kaur, the respondent-wife brought an application for judicial separation under section 10 of the hindu marriage act against her husband waryam singh, who is the appellant in this court, sometime in the year 1957. the decree for judicial separation was granted to the wife on 15th of february 1958. the appellant brought the present application on 23rd of february 1960 for dissolution of marriage under section 13 of the hindu marriage act on the ground that there has been no resumption of cohabitation 'for a space of two years' atter the.....
Judgment:

Shamsher Bahadur, J.

1. The single question for determination in this appeal is whether it is open to both the spouses to ask for a decree for dissolution of marriage under Clause (viii) of Sub-section (1) of Section 13 of the Hindu Marriage Act two years after the passing of a decree for judicial separation when there has been no resumption of cohabitation since then ?

2. The parties to this appeal were married on 11th of January 1952, Pritpal Kaur, the respondent-wife brought an application for judicial separation under Section 10 of the Hindu Marriage Act against her husband Waryam Singh, who is the appellant in this Court, sometime in the year 1957. The decree for judicial separation was granted to the wife on 15th of February 1958. The appellant brought the present application on 23rd of February 1960 for dissolution of marriage under Section 13 of the Hindu Marriage Act on the ground that there has been no resumption of cohabitation 'for a space of two years' atter the passing of a decree for judicial separation on 15th of February 1958. Under Sub-section (1) of Section 13 of the Hindu Marriage Act,

'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.....

* * * * * (viii) has not resumed cohabitation for aspace of two years or upwards after the passing ota decree for judicial separation against that parly; or* * * * *

The learned District Judge having held that the husband against whom the decree for judicial separation was passed at the instance of the wife cannot avail himself of the relief provided by Clause (viii), he has come in appeal to this Court.

3. It has been contended by Mr. Nayar, the learned counsel for the appellant, that once a decree for judicial separation is passed either spouse can take advantage of it as it merely provides a foothold for the relief of dissolution of marriage. Mr. Nayar has further urged that it would be unreasonable to afford relief to one spouse and not the other when the essential basis for a decree for dissolution of marriage is the failure of resumption of cohabitation for a period of two years after the passing of such a decree. Mr. Nayar further contends that there is no justification either in principle or logic to make a distinction between the two spouses after a decree for judicial separation has been passed.

4. The argument which has been canvassed on behalf of the appellant overlooks altogether the essential nature of decrees which tend to break loose the marriage ties. It is well to remember that marriage under many systems of jurisprudence was a sacred union and it is only lately that a divorce or a judicial separation has received the sanction of law. A decree for judicial separation or dissolution of marriage is not to be lightly granted and it is only in cases of specified matrimonial wrongs or other natural infirmities that the innocent party may be accorded the discretionary relief which is provided under the Hindu Marriage Act.

Under Section 10, either party to a marriage may seek a decree for judicial separation on the ground that the other party has deserted the petitioner for a period of not less than two years, or has treated the petitioner with cruelty or similar lapses. A decree for judicial separation can only be granted at the instance of an innocent party and against the spouse who has been guilty of the matrimonial wrongs mentioned in Section 10. Likewise, a decree for dissolution of marriage under Section 13 may be granted and again to an innocent party if the other spouse is living in adultery or because of some other infirmity in him or her for which the petitioner cannot be said to be at fault.

5. D. F. Mulla, in his commentary on the Hindu Marriage Act at page 853 of the 12th edition of the Principles of Hindu Law, states the matter thus:

'At the same time the view seems to have been taken that the injured or innocent spouse who has obtained a decree for judicial separation should have the right to seek dissolution of the marriage by a decree of divorce where the parties have not resumed cohabitation for a period of two years or more after the passing of such decree.'

This conclusion of the learned author, in my opinion, is clearly in consonance with the principles governing matrimonial jurisdiction of divorce Courts both here and in England. It would be indeed strange if a husband who has no independent right of his own to ask for dissolution of marriage under Section13 is permitted to seek the umbrage of a decree for judicial separation obtained by his wife against him. It is to be borne in mind that only one of the two parties is Riven a right to ask for divorce under Clause (viii) on ground of judicial separation and in the present instance that party is the wife in whose favour a decree for judicial separation was granted and who in other words, is the innocent party.

Under Sub-section (1) of Section 13 of the Hindu Marriage Act, the husband or the wife can bring a petition on the ground that 'the other party' (and these words are important) has not resumed cohabitation for a period of two years after the passing of a decree for judicial separation against that party. The words 'the other party' in Sub-section (1) and 'against that party' in Clause (viii), in my mind, provide a key to the construction of this provision and these clearly exclude the right of one of the spouses, namely, the party against whom the decree has been granted to claim the protection of a divorce Court for a decree for dissolution of marriage.

6. This result is also to be gathered by implication if we examine Section 7 of the English Matrimonial Causes Act, 1950. Under Sub-section (1) it is provided that

'a person shall not be prevented from presenting a petition for divorce ..... by reason only that the petitioner has at any time been granted a judicial separation..... upon the same or substantially the same facts as those proved in support of the petition for divorce.'

I take this to mean that a person who has obtained an order for judicial separation is not debarred from bringing an application for dissolution of marriage.

The exception is made only in case; of a person who has obtained a decree for judicial separation and not a spouse against whom such a decree has been granted. The reason is not far to seek. The remedies of judicial separation and dissolution of marriage are concurrent so far as the injured spouse is concerned as against the guilty one. Neither the Ecclesiastical nor the Statute Law of England nor indeed the Hindu Marriage Act countenances concessions in favour of persons who have been found guilty of matrimonial lapses.

Neither the plain language of Section 13 nor the principles of Divorce Law could justify the conclusion that a husband, who is the guilty party in the present case, can obtain a decree for dissolution of marriage because his own wrong was found sufficient to entitle his wife in 1958 to obtain a decree for judicial separation. It would be singularly inappropriate to accord the same juridical status to a decree obtained under the Divorce Jurisdiction of a Court as an ordinary decree which in some situations may afford further relief to all the parties to it on its basis. The decree for judicial separation is of a personal nature and enures only for the benefit of the party in whose favour it is granted as is clearly specified in Section 13 itself.

7. So far as I can see, there is neither merit nor reason on the side of the appellant and, in my opinion, this appeal must fail and is accordingly dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //