1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE FAMILY COURT APPEAL NO.78 OF 2004 Mrs.Kanchan Sanjay Gujar Appellant Vs. Mr.Sanjay Bhikan Gujar Respondent Mr.Shriram S.Kulkarni for appellant. Mr.A.A.Kumbhakoni with Mr.T.D.Deshmukh for respondent. CORAM: B.H.MARLAPALLE & S.J.VAZIFDAR,JJ. Reserved on : June 24, 2009. Pronounced on: July 17, 2009 JUDGMENT (PER B.H.MARLAPALLE,J.) 1. This appeal filed under Section 19 of the Family Courts Act read with Section 23 of the Hindu Marriage Act, 1955 (“the Act” for short) arises from the judgment and order dated 10/12/2003 rendered by the Family Court at Pune thereby dissolving the marriage between the parties under Section 13(1-A) of the Act by allowing Petition No.A-345 of 2001 filed by the respondent – husband. 2. The parties were married on 13/12/1980 as per the Hindu Customs and Rites at Pune and they begot three children, elder 2 son Kunal was born on 17/1/1983, younger son Mayur was born on 28/9/1984 and daughter Sayali was born on 23/5/1988. As of now all the three children have attained majority but Sayali is still unemployed and, therefore, has no independent source of income The appellant filed Petition No.A574 of 1995 seeking the decree of restitution of conjugal rights under Section 9 of the Act on 29/7/1995 and on the same date she filed Petition No.C-38 of 1995 claiming maintenance for herself as well as the children under Sections18 and 20 of the Hindu Adoption and Maintenance Act, 1956. On 13/6/1996 the respondent filed Petition A.No.455 of 1996 seeking divorce on the ground of desertion and cruelty i.e. Section 13(1)(i-a) and (i-b) of the Act. He also filed Petition No.D-62 of 1996 under Section 26 of the Act and sought the custody of the children. By a common judgment dated 30/3/1999 the Family Court at Pune was pleased to allow the petitions filed by the wife i.e. Petition No.A-574 of 1995 thereby granting a decree of restitution of conjugal rights in favour of the appellant whereas the petition filed by the husband i.e. Petition No.A-455 of 1996 for divorce came to be dismissed. Petition No.D-62 of 1996 filed for custody by the respondent was dismissed whereas petition No.C-38 of 1995 filed by the appellant for maintenance was 3 allowed. 3. On or about 28/4/2001 the respondent filed Petition No.A-345 of 2001 for seeking divorce under Section 13(1-A) of the Act stating that after the decree under Section 9 of the Act was passed on 30/3/1999 there had been no resumption of cohabitation between the parties and, therefore, the marriage between the parties was required to be dissolved by a decree of divorce. The wife also filed Petition No.C-28 of 2002 along with her younger son and daughter and prayed for maintenance under Section 25 of the Hindu Adoption and Maintenance Act, 1956. By the impugned common judgment the following order came to be passed: “1. Petition No.A-345/2001 stands decreed as under: The marriage between Mr.Sanjay Bhikan Gujar and Mrs. Kanchan Sanjay Gujar stands dissolved by a decree of divorce under Section 13(1A) of the Hindu Marriage Act w.e.f. the date of this order. 2. Petition No.C-28/2002 stands decreed partly. The respondent husband Sanjay Bhikan Gujar to pay enhanced allowance of Rs.14,000/- p.m. to the petitioner Kanchan 4 Sanjay Gujar, Master Mayur Sanjay Gujar, Kum. Sayali Sanjay Gujar w.e.f. the date of this order. 3. Costs shall be proportionate. 4. The Respondent husband do clear the arrears of electrical, water and other society authorities charges if any within one month from the date of this order and should go on depositing such charges punctually in future.” 4. It is stated by the appellant that the respondent left the matrimonial home and started living in an adulterous relationship with Sunita Gawde and even after the decree for restitution of conjugal rights was granted by the Family Court on 30/3/1999, the respondent continued to live with the very same lady as her husband. It is further alleged that he had performed second marriage with Sunita Gawde and settled in a separate home with her and even as of now he continues to live with his second wife / mistress. On these grounds it has been contended by the wife that it was the respondent – husband who acted against resumption of cohabitation and, therefore, having regard to the scheme of Section 23(1)(a) of the Act, he was not entitled for a decree of divorce. In short it is the case of the 5 appellant that the respondent was trying to take advantage of his own wrong. 5. The respondent has filed affidavit-in-reply on or about 12/8/2004 and reiterated that he filed a petition under Section 13(1-A) of the Act for seeking a decree of divorce on the sole ground of non resumption of cohabitation between the appellant and him even after the lapse of period of one year since the decree for conjugal rights was passed. He further claims that the only issue before the Family Court was whether there had been restitution of conjugal rights between the parties for a period of one year after passing of the decree for restitution of conjugal rights on 30th March 1999 in Petition No.A-574 of 1995. He further claims that as per the settled position of law mere non-compliance of decree for restitution of conjugal rights per se could not amount to taking advantage of his own wrong under Section 23(1)(a) as there is no obligation placed by the statute on him under the Act for compliance before asking for the relief under Section 13(1-A) of the Act. As per the petitioner, the petition was filed on the ground of non- compliance of the decree of conjugal rights and even the defaulting party can also seek divorce if there was no restitution 6 of conjugal rights for a period of one year or more after the decree under Section 9 of the Act was passed. He further submitted that the respondent failed to show that the petitioner was taken advantage of his own wrong occurring in Section 23(1)(a) of the Act. In her Petition No. 28 of 2002 filed by the wife for enhancement of maintenance, she had stated the address of the petitioner as “Pratibha Society, Dhankawadi, Pune – 411 043” and this is an admission by her that both the parties have been living in separate residences and have not resumed cohabitation. However, he did not state as to what efforts he had taken to resume cohabitation after the said decree was passed and before he approached the Family Court in the second round for seeking divorce under Section 13(1-A) of the Act. In this appeal he supported the impugned judgment of the Family Court but did not state as to what steps he had taken from 30th March 1999 to resume cohabitation with the appellant. In the said affidavit filed on 12/8/2004 he has stated that he got married to Sunita Yashwant Gawade on 14/3/2004 at Alandi near Pune and this marriage was after expiration of the limitation period to challenge the decree of divorce dated 10/12/2003. He further claims that he registered the said second marriage on 4/7/2004 with the Registrar of Marriages. The learned counsel 7 for the respondent in his oral arguments which have been placed before us as “Written Submissions” has opposed the appeal on the following grounds :- (a) On expiration of one year from 30th March 1999 the respondent was in law entitled to apply for a decree of divorce under Section 13(1-A) of the Act and he has been rightly granted the decree of divorce as there was no resumption for a period of more than one year and above after the decree for restitution of conjugal rights was granted. (b) Appeal was not filed in time and in the mean while the respondent is remarried. Hence the second marriage is required to be protected. A pragmatic / practical approach warrants that when one of the parties is already married after the period of limitation had expired, the second marriage is required to be protected. (c) To constitute a “wrong” in terms of Section 23 of the Act, there has to be a positive act and/or action / conduct which is more than disinclination to cohabit on the part of the husband to 8 frustrate decree for restitution and such a case has not been made out by the appellant while opposing his petition before the Family Court. There is no pleading nor any evidence regarding the alleged adulterous life even after passing the decree of restitution. Reliance is placed on the decision in the case of Saroj Rani v. Sudarshan Kumar Chadha [(1984) 4 SCC 90]. (d) In order to be a `wrong’, the conduct of the husband should be something more than mere disinclination to agree to an offer of re-union, it must be a misconduct so as to justify denial of relief (Dhirendra Kumar – AIR 1977 SC 2218). The wife had failed to show that the husband was taking advantage of his own wrong occurring in Section 23(1)(a) of the Act. (e) The photostat copy of the courier receipt which was put to the respondent during his cross-examination before the Family Court has not been exhibited and not proved and, therefore, it is not admissible in evidence. The evidence as a whole is contrary to the theory of alleged second marriage. (f) If the appeal is allowed, the second marriage would be destroyed. His marriage has already ended de facto and if the 9 appeal is allowed it would end de jure and dismissal of the appeal is in consonance with the law laid down in the case of Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511] and Naveen Kohli v. Neelu Kohli [(2006) 4 SCC 558]. (g) Subsequent events pending appeal must be considered for doing complete and substantial justice. 6. Sub-Section (1-A) in Section 13 of the Act has been incorporated by the Act 44 of 1964 and by the subsequent amendment of the Act 68 of 1976 the period of two years has been brought down to one year w.e.f. 27/5/1976. It has been rightly held by the Family Court and it is not even disputed by the learned counsel for the appellant, that a petition for divorce under Section 13(1-A) of the Act could be moved by either of the parties and it is not necessary that the party at whose instance the decree of restitution has been passed can only file such a petition. Thus maintainability of the petition filed by the respondent before the Family Court under Section 13(1-A) of the Act is not disputed. The only issue raised by the appellant in this petition is that the petition was required to be dismissed 10 under Section 23(1)(a) as the respondent was taking advantage of his own wrongs. In the case of Laxmibai Laxmichand Shah vs. Laxmichand Ravaji Shah [AIR 1968 Bombay 332], this court distinguished the amendment in the Act by incorporating Section 13(1-A) as per Act No. 44 of 1964 and the effect of the retaining the scheme of Section 23 of the said Act as it is in the following words, “9. ..............In the first place, it is necessary to get rid of the notion that to introduce consideration arising under Section 23(1) into the determination of a petition filed under sub-section (1-A) of Section 13 is to render the amendments made by amending Act No. 44 of 1964 wholly meaningless. That is the principal ground on which the learned trial Judge has held that sub- section (1-A) of Section 13 confers an absolute right on a party to get a decree for divorce and that is also one of the main arguments which was 11 urged before me by Mr. Vyas. Prior to the amendments introduced by the amending Act of 1964, the position which obtained under clauses (viii) and (ix) of Section 13(1) was that a marriage could be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the grounds, respectively, that the other party had not resumed cohabitation for a space of two years or upwards after the passing of a decree for judicial separation against that party or that the other party had failed to comply with a decree for restitution of conjugal rights, for a period of two years or upwards after the passing of the decree against that party. Under these clauses, the right to apply for divorce was restricted to the party which had obtained a decree for judicial separation or for restitution of conjugal rights. Such a right was not available to the party against whom the decree was passed. 12 Sub-section (1-A) of Section 13 which was introduced by the amendment confers such a right on either party to the marriage, so that a petition for divorce can after the amendment, be filed not only by the party which had obtained a decree for judicial separation or for restitution of conjugal rights but also by the party against whom such a decree was passed. This, in my opinion, is the limited object and effect of the amendment introduced by Act No. 44 of 1964. The amendment was not introduced in order that the provisions contained in Section 23 should be abrogated and that is not the effect of the amendment. 10. The purpose of the amendment and the effect of sub-section (1-A) of Section 13 can be appreciated by reference to the provisions contained in Section 13 itself. In the first place, 13 the opening words of sub-section 13 provide a sharp contrast, and a comparison of the respective provisions of the two sub-sections would show that the object of sub-section (1-A) was merely to enlarge the right to apply for divorce and not to make it compulsive that a petition for divorce presented under sub-section (1-A) must be allowed on mere proof that there was no cohabitation or restitution for the requisite period............ It is clear on a comparison of the opening words of the two sub-sections, that all that sub-section (1-A) deals with is the right to apply for a decree of divorce. It does not provide that a petition for dissolution of a marriage by a decree of divorce shall be allowed on proof of either of the two conditions mentioned in that sub- section. Once it is appreciated that the object of the amendment by which sub-section (1A) was introduced in Section 13 and by which clauses 14 (viii) and (ix) were deleted from sub-section (1) of that section is merely to confer a right to apply for divorce on both the parties to the marriage irrespective of whether the decree for judicial separation or the decree for restitution of conjugal rights was obtained by this or that party, there would be no difficulty in holding that the provisions contained in Section 13(1-A) are subject to those contained in Section 23(1). Section 23(1) provides that “in any proceeding” under the Act, if the Court is satisfied regarding the facts and circumstances mentioned in clauses (a) to (e) of sub-section (1), “then and in such a case, but not otherwise, the Court shall decree such relief accordingly.” The very language of this sub-section shows that it governs every proceeding under the Act and a duty is cast on the Court to decree the relief sought only if the conditions mentioned in the sub-section are 15 satisfied, and not otherwise. In fact, it is difficult to see how one can make any distinction between sub-sections (1) and (1A) of Section 13 in so far as the applicability of Section 23(1) is concerned. Sub-section (1) of Section 13 is clearly subject to the provisions contained in Section 23(1). If that be so, sub-section (1A) would equally be so subject. There is nothing in the language of the two sub-sections to justify the view that sub- sections to justify the view that sub-section (1), but not sub-section (1-A) is subject to the provisions of Section 23(1).” In the case of Savitri Pandey vs. Prem Chandra Pandey [(2002) 2 SCC 73], the Supreme Court held, “13. In any proceedings under the Act whether defended or not the court would decline to grant relief to the petitioner if it is found that the 16 petitioner was taking advantage of his or her own wrong or diability for the purposes of the reliefs contemplated under Section 23(1) of the Act. No party can be permitted to carve out the ground for destroying the family which is the basic unit of the society. The foundation of the family rests on the institution of a legal and valid marriage. Approach of the court should be to preserve the matrimonial home and be reluctant to dissolve the marriage on the asking of one of the parties. 17. The marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite observation of this Court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where, on 17 facts, it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity of marriage cannot be left at the whims of one of the annoying spouses. This Court in V. Bhagat v. D. Bhagat held that irretrievable breakdown of the marriage is not a ground by itself to dissolve it. 7. A Division Bench of this court in the case of Sunita Rajendra Nikalje vs. Rajendra Eknath Nikalje [1996 (1) Mh.L.J. 572], after referring to the decision in the case of Dharmendra Kumar vs. Usha Kumar [AIR 1977 SC 2218], elaborated the meaning of the word “wrong” in the following words: “..........`wrong’ means only serious or grave misconduct on the party of the party seeking divorce or relief against the other. It is not 18 necessary that there should be fresh marital offence. It depends upon the facts and circumstances of each case to judge whether it was `worng’ or not. Take the case where the party makes accusation of adultery or infidelity or brings about a situation to make, it impossible for one party to resume cohabitation or causes injury to other or is living with another woman/man or gives threats scaring the other party. There is some such positive conduct after the decree for restitution of conjugal rights is passed. Mere disinclination or reluctance to accept the other spouse is not sufficient. There should be attempt of making it impossible for a spouse to resume cohabitation after the decree for restitution of conjugal rights is passed. Discretion is conferred to strike a balance. The Court should not grant the decree lightly or defeat it when the marriage is broken down completely. All this is necessary to be viewed 19 against the backdrop of facts and circumstances of each case.” (emphasis supplied) This court further went on to state that Section 23(1)(a) of the Act is couched in negative terms and burden lay upon the petitioner to prove that he/she was not taking advantage of his/her own wrong. 8. In the case of T. Srinivasan vs. T. Varalakshmi (Mrs.) [(1998) 3 SCC 112], the husband had obtained a decree of restitution of conjugal rights and the wife made a demand of the husband to let her join him but he refused to allow her to enter the house, rather he drove away as also her relatives, whoever attempted to rehabilitate the wife. A three Judge Bench of the Supreme Court held that these acts of the husband were positive wrongs amounting to “misconduct”, uncondonable for the purpose of Section 23(1)(a) of the Act and, therefore, he was rightly denied the relief under Section 13(1-A) of the Act. 20 In the case of Chetan Dass vs. Kamloa Devi [(2001) 4 SCC 250], the Supreme Court stated, “In the present case, the allegations of adulterous conduct of the appellant have been found to be correct and the courts below have recorded a finding to the same effect. In such circumstances, the provisions contained under Section 23 of the Hindu Marriage Act would be attracted and the appellant would not be allowed to take advantage of his own wrong. Let the things be not misunderstood nor any permissiveness under the law be inferred, allowing an erring party who has been found to be so by recording of a finding of fact in judicial proceedings, that it would be quite easy to push and drive the spouse to a corner and then brazenly take a plea of desertion on the part of the party suffering so long at the hands of the wrongdoer and walk away out of the matrimonial 21 alliance on the ground that the marriage has broken down. Lest the institution of marriage and the matrimonial bonds get fragile, easily to be broken which may serve the purpose most welcome to the wrongdoer who, in his heart, wished such an outcome by passing on the burden of his wrongdoing to the other party alleging her to be the deserter leading to the breaking point.” In the case of Tejinder Kaur vs. Gurmit Singh [AIR 1988 SC 839], the Supreme Court held that the second marriage, if any, during the pendency of the appeal, does not make the appeal infructuous. Following the said decision, a Division Bench of this court in the case of Smita Dilip Rane vs. Dilip Dattaram Rane [1990 Mh.L.J. 69] stated thus, “..... Therefore, in our view, only because the second marriage had taken place, the husband is not entitled to a decree for divorce. He cannot be 22 allowed to take advantage of his own wrong. It is well settled that what cannot be granted directly cannot be achieved indirectly......” On the touchstone of the above referred settled legal position, we are required to examine whether the decree of divorce granted by the Family Court is sustainable in law and in the obtaining circumstances of this case. The Family Court framed the following issues and answered them as shown as shown below:- Issues in Petition No.A-345/2001 1. Whether there has been no restitution of conjugal rights between the parties for a period of one year after passing of decree for restitution of conjugal rights on 30/3/1999 in Petition A-574/1995? In the affirmative 2. Whether Petitioner husband is entitled to get decree of divorce under Section 13(1A)(ii) of Hindu Marriage Act? 23 In the affirmative. Petition stands decreed as prayed for. Issues in Petition No.C-28/2002 1. Whether there is change in the circumstances to award more maintenance to Petitioner Nos.1 to 3? In the affirmative. 2. Whether Petitioner No.2 is entitled to get maintenance as he had already attained majority? In the negative. Petition stands allowed partly. 9. In para 10 of the impugned order, the Family Court set out the following reasoning to grant the decree of divorce under Section 13(1-A) of the Act: “10. If in the light of the above authorities evidence on record is scrutinized carefully and it carefully merges then why Mrs. Kanchan herself was least concerned and bothered to comply with the decree of restitution of conjugal rights because she herself came in the case that after deserting her, her 24 husband Sanjay entered into second marriage with the sister of his brother-in-law. Thus, from her own side, she has not adduced any evidence to indicate that she had any time took any concrete steps to implement that decree in its real letter and spirit. Husband Sanjay has on the other side has asserted that he has been making attempt to resume conhabitation with the wife but it is his wife who did not show any inclination to resume