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Bai Mani Vs. Jayantilal Dahyabhai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 263 of 1974
Judge
Reported inAIR1979Guj209; (1980)GLR66
ActsHindu Marriage Act, 1955 - Sections 13(1A) and 23(1)
AppellantBai Mani
RespondentJayantilal Dahyabhai
Appellant Advocate B.C. Patel and; H.K. Thakore, Advs.
Respondent Advocate N.J. Mehta, Adv.
Cases ReferredIn Anil Jayantilal Vyas v. Sudhaben
Excerpt:
.....parties, found that they failed to co-habit for a period of two years or more after the decree for judicial separation was granted on 19th november 1968. a contention was urged on behalf of the appellant-wife that the husband was trying to take advantage of his own wrong and, therefore, decree for divorce should be refused in 'view of the provisions contained in section 23(1)(a) of the hindu marriage act. 1. the learned city civil judge was clearly in error in finding that the respondent-husband was entitled to a decree for divorce without addressing himself to the question which was raised before him that there were justifying reasons under section 23(1)(a) for refusing the relief of divorce prayed for. usha kumar, air 1977 sc 2218. 5. we do not think that it can be a matter of debate..........whether continuance in adulterous relationship on the part of husband after the decree of judicial separation granted in favour of wife, inter alia, on the same ground, would per se amount to taking advantage of his own wrong so as to disentitle him to a decree f or divorce, arises in this. the question arises in the following circumstances:the parties hereto are hindu and their marriage was solemnised according to hindu rites somewhere in 1954 a. d. they stayed as husband and wife for seven years, and three children were born - one son and two daughters - by this wedlock. they had fallen out completely for reasons, the respective version of which is different, somewhere in 1961 and they are staying separately since then. it is an admitted position on the part of the.....
Judgment:

B.K. Mehta, J.

1. An emotive question, whether continuance in adulterous relationship on the part of husband after the decree of judicial separation granted in favour of wife, inter alia, on the same ground, would per se amount to taking advantage of his own wrong so as to disentitle him to a decree f or divorce, arises in this. The question arises in the following circumstances:

The parties hereto are Hindu and their marriage was solemnised according to Hindu rites somewhere in 1954 A. D. They stayed as husband and wife for seven years, and three children were born - one son and two daughters - by this wedlock. They had fallen out completely for reasons, the respective version of which is different, somewhere in 1961 and they are staying separately since then. It is an admitted position on the part of the respondent-husband that he developed intimacy with one Smt. Indumati, who happened to be the friend of the appellant-wife, and they came closer to each other and started living together after the appellant-wife started residing separately in the ground floor of one of the ancestral house properties. It is claimed by the respondent-husband that he made adequate arrangement for the residence and maintenance of the wife and children by purchasing a building in the said locality in the name Of the wife so that she can maintain herself and her children from the income of the said property. He also made a grievance that in spite of his looking after her and her children, she picked~ up quarrels with him and his, stepmother, who is residing in the upper portion of the ancestral property in which the appellant-wife is staying with her children with the result that their relations have embittered. It appears that the appellant-wife had filed a petition in the City Civil Court, Ahmedabad, in July 1968, being Hindu Marriage Petition No. 55 of 1968, praying for a decree of restitution of conjugal rights, or, in the alternative, for judicial separation. There was no effective contest in those proceedings, with the result that on November 19, 1968, the City Civil Court granted a decree for judicial separation and directed the respondent-husband to pay Rs. 60/- as and by way of alimony for maintenance of the appellant-wife and children. Since there was no resumption of co-habitation between the parties hereto for a period of two years after the passing of the decree for judicial separation, the respondent-husband presented a petition for dissolution of marriage by a decree of divorce as permitted under S. 13(1A) of the Hindu Marriage Act. This petition was resisted by the appellant-wife, inter alia, on the ground that the husband was not competent to present the petition under Section 13(1A), and, in any case, there were justifying reasons for the Court to reject the petition under Section 23(1) inasmuch as the husband is trying to take advantage of his own wrong by continuing to stay in adulterous course with Smt. Indumati and not caring for the children. The learned Judge of the City Civil Court raised necessary issues on these pleadings, and, on hearing the evidence adduced by the parties, found that they failed to co-habit for a period of two years or more after the decree for judicial separation was granted on 19th November 1968. A contention was urged on behalf of the appellant-wife that the husband was trying to take advantage of his own wrong and, therefore, decree for divorce should be refused in 'view of the provisions contained in Section 23(1)(a) of the Hindu Marriage Act. The learned City Civil Judge, without addressing himself to the question, whether there were any circumstances brought out in the evidence of the parties which disentitled the husband to a decree for dissolution of marriage by divorce under Section 23(1)(a), merely followed the decision of this Court in Appeal No. 621 of 1971 rendered by M. U. Shah, J. (as he then was) on 29th August, 1972, and answered issue No. 2 in favour of the husband that he was entitled to the decree prayed for. He, therefore, granted a decree for divorce dissolving the marriage by his judgment and order of 2nd July 1973, which is the subject-matter of this first appeal before US.

2. At the time of hearing of this appeal, Mr. Patel, learned Advocate, appearing for the appellant-wife, raised the following two contentions before us:

1. The learned City Civil Judge was clearly in error in finding that the respondent-husband was entitled to a decree for divorce without addressing himself to the question which was raised before him that there were justifying reasons under Section 23(1)(a) for refusing the relief of divorce prayed for.

2. In any case, the persistent conduct on the part of the husband in continuing the adulterous relationship even after the decree for judicial separation should be treated as so reprehensible that to grant a decree for divorce at his instance would be tantamount to allowing him to take advantage of his own wrong and, therefore, the learned City Civil Judge ought to have refused to grant the decree for divorce dissolving the marriage.

3. These contentions were sought to be repelled by the learned Advocate for the respondent-husband by urging that unless the wife is able to establish that there were other circumstances or facts besides the matrimonial offence of adultery already committed on which the decree for judicial separation has already been granted, the wife cannot successfully resist the decree for divorce especially when the Legislature has specifically granted this right even to a defaulting spouse by putting sub-section (1A) of Section 13 on the statute book. In submission of the learned Advocate for the respondent-husband, no material has been placed on the record of the trial Court which discloses any new circumstances or facts besides the continuance of matrimonial offence of adultery for which the penal consequences have been already imposed by the Court by granting judicial separation to the wife.

4. This position of law is now settled beyond doubt by the decision of the Supreme Court in Dharmendra Kumar v. Usha Kumar, AIR 1977 SC 2218.

5. We do not think that it can be a matter of debate as to whether a defaulting spouse can present a petition, inter alia, for dissolution of marriage by divorce if the conditions specified in Section 13(1A) of the Hindu Marriage Act are satisfied. The conditions are that there should be no resumption of cohabitation or restitution of conjugal rights for a period of two years or upwards (at the relevant time) between the parties to the marriage after the decree for judicial separation or restitution of conjugal rights, as the case may be, is granted. It should be recalled that before sub-section (1A) was amended by Act 44 of 1964 with effect from December 20, 1964, it was only the aggrieved party, which was entitled to present a petition for dissolution of marriage by praying for a decree of divorce. The effect of the amended sub-section (1A) of Section 13 is that it entitles even a defaulting party and not merely an aggrieved party to obtain dissolution of marriage by a decree of divorce on satisfaction of the conditions Prescribed therein. It also cannot be a bone of contention between the parties that either of the spouses is under any obligation to resume co-habitation after the decree for judicial separation or restitution of conjugal rights is granted. The only pertinent question which, therefore, arises for our consideration in this appeal is, whether the continuance on the part' of the husband in adulterous course of life by staying with his mistress would amount to such a wrong as to disentitle him to a decree of divorce under Section 23(1)(a) of the Hindu Marriage Act. The learned Advocate for the appellant wife strenuously attempted to persuade us that in the present case before us where the respondent-husband, after the decree for judicial separation was granted, not only did not care for the wife or children but continued to lead the amorous way of life by persisting to reside with his mistress, and if this conduct is not considered to be reprehensible enough by the Court so as not to amount to a wrong of such a nature disentitling the husband from obtaining a decree of divorce, it would be tantamount to this Court putting its imprimatur on the illegitimate and immoral way of life. In submission of the learned Advocate for the appellant-wife, this Court must discourage such husbands, who, not only by their conduct, create situation where their lawfully wedded wives, in the interest of morality and also well being of the children and the family, are compelled to reside separately, to continue to persist in their misbehaviour so that the married life which has been put on probation during the period of two years after the decree of judicial separation is granted is completely jeopardized. In support of his contention, the learned Advocate for -the appellant-wife relied on the decision of T. U. Mehta, J. (as he then was) decided on 16th February, 1973 in First Appeal No. 481 of 1970, where the facts were almost on all fours with those of the present case before us. We must frankly admit that there is a great appeal in this contention of the learned Advocate for the appellant-wife, though we are unable to subscribe wholly to the reasoning underlying his contention. As a matter of fact it is a delicate choice between the two views since the facts of the decisions of the different High Courts on this point, except the one, which was before T. U. Mehta J., are not similar with the facts with which we are concerned in this case. It cannot be gainsaid that, in the present case the marriage between the parties has foundered and they have reached to a point of no return. It was 17 years back that they have fallen out for the reasons, which may be appearing valid to both the sides from their particular angle in life. The husband found the wife nagging and quarrelsome in temperament and lacking in intellectual pursuits of life since she had no formal education. On the other hand, for no fault of her, the wife found it impossible in her own self-respect and in the interest of the moral values of life and the well being of the three young children -to continue to reside with her husband in the insulting position in which she was landed. In this long period of 17 years, the husband was committed gradually to the mistress whom he had taken up with him and the wife found it humiliating to return to her husband's place. Another important fact to which we must refer to is that three children have born through the relationship of the husband with the mistress outside marriage and they are also now, by this time, grown up demanding attention and assistance of the unfortunate ' husband. It is in this backdrop of human tragedy, which has engulfed this family that we have to make our delicate preference for either of the views. Can we agree with the view forcefully presented before us by Mr. Patel, learned Advocate for the appellant-wife that volition of the husband to continue to reside with the mistress whom he had accepted 17 years before and through whom three children have been born which can be justifiably presented as persistent immoral and wrongful conduct on the part of the husband and, therefore, amounting to a wrong disentitling him to a decree for divorce under Section 23(1)(a) of the Hindu Marriage Act. Before we answer the question, we have to examine as to what has been decided by the Supreme Court in Dharmendra Kumar's case (supra).

6. In Dharmendra Kumar's case (supra) the facts were that the respondent Usha Kunver obtained a decree for restitution of conjugal rights on August 27, 1973. She presented a petition under Section 13(1A)(ii) of the Hindu Marriage Act on October 28, 1975 for dissolution of marriage by a decree of divorce The appellant-husband contended, inter alia, that in spite of his attempts to comply with the decree of restitution of conjugal rights inviting the respondent wife to come and stay with him repeatedly by writing registered letters, she refused to come and stay with him thereby preventing the restitution of conjugal rights and, therefore, her petition for divorce was to take advantage of her own wrong and a decree for divorce should be refused under Section 23(1)(a) of the said Act. The Additional District Judge, Delhi, relying on a Full Bench decision of the Delhi High Court in Ram Kali v. Gopal Dass, ILR (1971) 1 Delhi 6, and a latter decision of a single Judge of the same High Court in Gajna Devi v Purshotam Giri, AIR 1977 Delhi 178 rejected the contention of the husband and granted a decree for divorce. The Delhi High Court rejected the appeal of the husband summarily. The matter was, therefore, carried before the Supreme Court. The Supreme Court, speaking through A. C. Gupta J. posed the question in the following terms:

'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.'

The Supreme Court thereafter quoted with approval the passage from the decision of the learned single judge of the Delhi High Court in Gajna Devi's case (supra) following the decision of the Full Bench in Ram Kali's case (supra). The Supreme Court thereafter approved the said view in the following terms:-

'In our opinion the law has been stated correctly in Ram Kali v. Gopal Das (supra) and Gajna Devi v. Purshotam Giri (AIR 1977 Delhi 178) (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.'

The Supreme Court has, therefore, endorsed the view of the Delhi High Court that Section 23 of the said Act cannot be construed so as not to make the effect of the amendment of law by insertion of Section 13(1A) nugatory. It would be profitable here to refer to the decision of the learned single Judge of the Delhi High Court in Gajna Devi's case (supra) which has been approved by the Supreme Court as laying the correct position of law.

7. In Gaina Devi's case (supra) the respondent-husband only a few months after the marriage turned out the wife after treating her cruelly. She, therefore, filed a petition for judicial separation. She obtained an ex parte decree on 30th March 1966. Thereafter the husband made an unsuccessful attempt to obtain dissolution of marriage by a decree of divorce on the allegation against his wife of living in adultery with one Nanakchand. This petition of the husband was dismissed on 23rd August, 1968. The husband thereafter instituted on 19th July, 1972 a petition for divorce on the ground that there had been no cohabitation between the parties for a period of two years or more since the decree of judicial separation granted in favour of the wife. It was, inter alia, contended on behalf of the wife in this petition that the husband was trying to take advantage of his own wrong and therefore the decree should be refused under Section 23(1)(a). Negativing this contention, the learned single Judge of the Delhi High Court held that it could not be said that the husband was trying to take advantage of his own wrong when he made an application for divorce under Section 13(1A) but he was merely trying to exercise his legal right flowing from the provision of the amending Act. The learned Judge thereafter stated that if after the passing of the previous decree, 'any other facts or circumstances occurred' which, in view of sub-section (1) of Section 23 of the Act, disentitled the spouse from obtaining the relief of dissolution of marriage by a decree of divorce under Section 13(1A) of the Act, the same can be legitimately taken into consideration and can be given due effect to.

8. In our opinion, we have, therefore, to reconcile between the provisions contained in Section 23(1)(a) and the amended provisions contained in S. 13(1A) of the Hindu Marriage Act.

9. In Anil Jayantilal Vyas v. Sudhaben, AIR 1978 Guj 74, this Court (myself) was called upon to decide what is the effect of the amending provision contained in Section 13(1A) of the Hindu Marriage Act and what conduct should be considered as wrongful enough to disentitle a spouse in wrong from obtaining a decree of divorce. It has been held in that case as under:

'I think Justice Nain was right when he stated that the conduct which should weigh under S. 23(1) cannot have reference to remitting the wrong~ which led to the decree for judicial separation or restitution of conjugal rights but it must be in the nature of subsequent conduct of the petitioner which may be so reprehensible or repulsive to the conscience of the Court that to grant a decree to such party committing such a wrong would be giving premium for such a wrong.'

The learned Advocate for the appellant wife invited our attention to the decision of T. U. Mehta J. where the wife resisted the petition by the husband for a decree for divorce on the ground that there was no resumption of co-habitation for two years or upwards after the wife got a decree for judicial separation on the ground that the husband was staying in adultery. T. U. Mehta J. was of the opinion that Section 23 has an overriding effect and the amending provisions contained in Section 13(1A) of the Act would not make any material difference because both the provisions operate in different fields and Section 23 enjoins the Court to see that the petitioning spouse is not trying to take advantage of his or her own wrong. The learned single Judge thereafter examined the evidence led by the parties in the case before him and found that the facts of the case established that even after the decree of judicial separation was passed the husband had continued to reside with his mistress and had got two issues through her; not only that but the husband had stated in his deposition in the trial Court that he intended to keep the mistress with him and it was his intention to perform marriage with her after obtaining divorce from the respondent. In view of this conduct it was not expected of the wife to resume co-habitation with her husband who was a man of extra marital and illicit connection. The learned Judge was, therefore, of the view that the husband could not be permitted to take advantage of his own wrong and obtain a decree for judicial separation since he not only continued the illicit relationship after the decree for judicial separation was passed but he had shown no intention to retrace from his behaviour and because this was a continuing wrong, no decree for divorce should be granted as otherwise it would amount to permit him to take advantage of his own wrong. We do see some force in this view, which has been strenuously canvassed on behalf of the appellant wife before us. However, T. U. Mehta J. had not the benefit of the decision of the Supreme Court in Dharmendra Kumar's case (supra) where the Supreme Court has approved the statement of law made by the Delhi High Court in this context of interplay of Section 23(1)(a) and Section 13(1A) of the Hindu Marriage Act and concluded that the position of law, as stated by the learned single Judge of the Delhi High Court in Gajna Devi's case (supra) was a correct position in law. The Supreme Court has also stated while summing up that in order to constitute a wrong within the meaning of Section 23(1)(a), the misconduct must be serious enough to justify denial of the relief to which the alleged wrongdoer is otherwise entitled to. The learned single judge of the Delhi High Court in Gajna Devi's case (supra) has stated that if after the passing of the previous decree any other facts or circumstances occurred which disentitle the spouse from obtaining the relief of dissolution of marriage under Section 23(1), the same can be legitimately taken into consideration and the relief be denied. It is no doubt true that the respondent-husband has admitted in his evidence before the trial Court that he has connection with his mistress Indumati and residing with her since more than 11 years and that he has got three children through her. The learned Advocate for the appellant-wife, therefore, emphasised that in spite of the decree for judicial separation, the fact that the husband continued to live in adulterous course is a circumstance which must be considered by the Court and, therefore, it should be treated as a wrong disentitling him to the relief, which he has prayed for. We are unable to agree with this submission of the learned Advocate more so in view of the decision of the Supreme Court in Dharmendra Kumar's case (supra). The matrimonial offence of adultery has exhausted itself when the decree for judicial separation was granted to wife. 'It is precisely for that reason that the wife sought the decree for judicial separation. It is no doubt true that the husband, in the present case, is continuing to reside with his mistress. But can it be said from that fact that it is a new f act or circumstance subsequent to the decree of judicial separation, which amounts to a wrong of such a nature as to disentitle her husband to the relief, which he is claiming in the present case? It is no doubt true that it is a continuous wrong. But, therefore, it cannot be said that it is a new fact or circumstance amounting to a wrong, which will stand as an obstacle in the way of the husband to successfully obtain the relief, which he claims in the present proceedings. If the view, which has been canvassed by the learned Advocate for the appellant-wife is accepted, it would in effect render the right which has been given under the amending provision contained in Section 13(1A) even to a defaulting party or a party in wrong for obtaining the relief specified in Section 13 nugatory. We have, therefore, got to reconcile these two provisions and the only way in which one can reconcile is, as has been done by the learned single judge of the Delhi High Court in Gajna Devi's case (supra), that there must be some facts or circumstances occurring after the decree for judicial separation, which, if amounting to substantial wrong that in granting a decree for divorce to a defaulting party or a wrongdoer, would amount in the circumstances in giving advantage of his own wrong. The learned Advocate for the respondent-husband has invited our attention to the decision of a Division Bench of the Bombay High Court in Jethabhai Ratanshi LodayaNanabai Jethabhai Lodaya, AIR 1975 Bom 88, where the Division Bench has taken a view that after a decree for judicial separation is passed, the ground on which that decree is granted, namely, desertion or cruelty the matrimonial wrong exhausts itself, and it would not be open to the parties to fall back upon it after the Court has pronounced the judgment and determined about the guilt of one of the parties. The learned Advocate for the appellant-Wife, however, tried to distinguish this judgment by urging that in case of a decree for a judicial separation on the ground of cruelty or desertion, there is no scope for the party in-wrong to persist in that wrong doing, namely, persisting or committing acts of cruelty while in that case of a decree of judicial separation- on the ground of adultery, there is a possibility of the wrongdoer to continue to committee that wrong even after the decree has been granted. We are afraid, we cannot agree with this submission of the learned Advocate for the wife obviously for the reason that he may be right so far as the cruelty is concerned, but ' So far as the desertion is concerned, the wrongdoer has a scope of indulging himself in continuous desertion after the decree for judicial separation is passed because there is no prohibition against him in resuming co-habitation. We are, therefore, in respectful agreement with the view, which has been taken by the Division Bench of the Bombay High Court. The real question as posed by the Supreme Court in Dharmendra Kumar case (supra) is, whether the continuance of stay of the husband after the decree of judicial separation with his mistress can be said to be misconduct serious enough to justify denial of the relief to which he is entitled to under the amending provision of the Act? As stated by the learned single Judge of the Delhi High Court in Gajna Devi's case (supra) it cannot be said that he is taking advantage of his own wrong when he makes an application for divorce though continuously residing with his mistress after the judicial separation has been granted. As a matter of fact, he is trying to exercise his right granted under the amending provision of the Act. In that view of the matter, therefore, we regret that we are compelled to reject the submissions of the learned Advocate for the appellant wife and we do not find any justifying reasons to interfere with the order made by the learned City Civil Judge.

10. The result is that this appeal should be rejected.

11. The learned Advocate for the appellant-wife, therefore, requested us that we must pass appropriate orders in the matter of permanent alimony if we confirm the decree of divorce granted by the learned trial Judge. We would like to pass appropriate orders in the matter under Section 25 of the Hindu Marriage Act, but since the relevant and necessary material has not been placed on the record of the trial Court so as to enable the Court to make appropriate orders in that connection, we direct the City Civil Court, Ahmedabad, to raise necessary Issues in this behalf as to what amount of permanent alimony the appellant wife is entitled to under Section 25 of the said Act, and after giving opportunity to the rival parties to lead evidence In support of their respective case, the City Civil Court will make its findings on the issues and report to us within three months from the receipt of the writ. On receipt of that report, this Court will make appropriate orders in the matter of permanent alimony. The appeal shall then stand disposed of after the orders for alimony are made in the matter.

12. Order accordingly.


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