IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 MFA.No. 950 of 2002() --------------------- OPNO.50/2001 of FAMILY COURT, KOZHIKODE. .................... APPELLANT(S): PETITIONER IN OP ------------------------------ M.AJITH KUMAR, AGED 41 YEARS, S/O. CHOYIKUTTY, "NANDA NIVAS", PUVANGAL, METHOTTUTHAZHAM, P.O.KOMMERI, KOZHIKODE. BY ADVS. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENT(S): RESPONDENT IN OP -------------------------------- K.JEEJA @ SANILA, AGED 31 YEARS, D/O. BHASKARAN, KALLIYIL HOUSE, P.O.WEST HILL, NEAR KANAKALAYA BANK, NADAKKAVU, KOZHIKODE. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20.1.2009, THE COURT ON 4.2.2009 DELIVERED THE FOLLOWING: P.R. RAMAN & C.T. RAVIKUMAR, JJ. ---------------------------------------------------------------- M..F.A.NO. 950 OF 2002 ---------------------------------------------------------------- Dated this the 4th day of February, 2009. JUDGMENT Ravikumar, J. The petitioner - husband in O.P. No.50 of 2001 on the file of the Family Court, Kozhikode is the appellant herein. The said Original Petition was filed under Section 13(1A)(ii) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act") for divorce. The admitted facts are as follows: The marriage between the appellant and the respondent who belong to Hindu Ezhava community was solemnised on 24.5.1991. After the marriage, they lived together only for a very short period of two and a half months. A male child was born in the wedlock and he is residing with the respondent. 2. With respect to what had happened subsequent to the said period of two and a half months, there are conflicting versions by the appellant and the respondent. According to the appellant, he left for Gulf after the said period and thereafter, the respondent was taken to her house for delivery in December, 1991. When he returned from Gulf in December, 1994, the parents of the respondent did not permit her to stay M.F.A. NO. 950/2002 2 with him. In the year 1995, the respondent herein had filed O.P. No.61 of 1995 before the Family Court, Kozhikode under Section 9 of the Act for restitution of conjugal rights. The said Original Petition was allowed on 14.7.1997 with a direction to resume cohabitation within two months from the date of the judgment. In the year 1996, the respondent filed M.C. No.109 of 1996 seeking maintenance for the child and that was also allowed on mutual consent. Subsequent to the passing of the decree in O.P. No. 61 of 1995, the respondent - wife did not resume cohabitation despite several attempts on the part of the appellant. The respondent had no genuine intention to resume cohabitation and they are residing separately for the last 9 1/2 years. It was with the aforesaid allegations that the appellant herein filed O.P. No.50 of 2001 for dissolution of their marriage by a decree of divorce. 3. The respondent contested the matter contending that it was the appellant who stood against the resumption of cohabitation pursuant to the decree in O.P. No.61 of 1995. In the counter affidavit, she had specifically expressed her willingness to live with the appellant-petitioner. She had also stated therein that after the appellant left for Gulf, she was subjected to mental torture by his parents during her stay at his house. Considering the aforesaid conflicting versions, the Family Court M.F.A. NO. 950/2002 3 formulated the point as to 'whether the petitioner is entitled to get a decree of divorce' for consideration. 4. The evidence in this case consists of the oral testimonies of PW.1 and RW.1. Exts.A1 to A4 were marked on the side of the petitioner. The Family Court considered the entitlement of the appellant herein to get a decree of divorce under Section 13(1A)(ii) of the Act in the light of Section 23(1)(a) of the Act. In order to appreciate the contentions, it is necessary and profitable to refer to the aforesaid provisions of the Act and they read as follows: "13(1A) 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) xx xx xx xx xx (ii) 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 a proceeding to which they were parties." "23. Decree in proceedings.--(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that, - M.F.A. NO. 950/2002 4 (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." 5. Evidently, the Original Petition was filed after the stipulated period under Section 13(1A)(ii) of the Act. To sustain the ground for dissolution of marriage by a decree of divorce and to establish that he is entitled to get divorce under Section 13(1A)(ii) of the Act notwithstanding Section 23(1)(a) of the Act, he relied on various decisions. His attempt was to canvass the position that in order to be a 'wrong' within the meaning of Section 23(1)(a) of the Act so as to disentitle for a decree of divorce, the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion. According to him, it must be a misconduct serious enough to justify the denial of the relief. To buttress the said point, the appellant - petitioner relied on the decisions of the Honourable Apex Court reported in Dharmendra Kumar v. Usha Kumar (1977) 4 SCC 12 and Saroj Rani v. Sudarshan Kumar Chadha (1984) 4 SCC 90. The appellant has also relied on the decision of this Court in Radhakumari v. Dr. K.M.K. Nair reported in AIR 1988 Kerala 235. In that decision, it was held that the failure on the part of the husband in not enforcing the decree for restitution of conjugal rights M.F.A. NO. 950/2002 5 will not disentitle him from getting a decree for divorce under Section 13 (1A)(ii) of the Act if there was no resumption of cohabitation between the parties for a period of one year or more after the passing of the decree for restitution of conjugal rights. It was further held therein that there was no material for evidencing any conduct on the part of the appellant- husband therein which would amount to a wrong within the meaning of Section 23(1)(a) of the Act disentitling him to the relief of divorce. 6. While considering the scope of Section 13(1A) of the Act, the Family Court referred to the decision of the Honourable Apex Court reported in Hirachand Srinivas Managaonkar v. Sunanda, A.I.R. 2001 S.C. 1285. It was held therein that the section does not provide that once the applicant makes an application alleging fulfillment of one of the conditions specified therein, the court has no alternative but to grant a decree of divorce and that such an interpretation of the section will run counter to the provisions of Section 23(1)(a) or (b) of the Act. The decision in Dharmendra Kumar v. Usha Kumar was also referred. It was held that the said decision should not be read to be laying a general principle that the petitioner in an application for divorce is entitle to the relief merely on establishing the existence of the ground pleaded by him/her in support of the relief. M.F.A. NO. 950/2002 6 7. After considering the rival contentions, relying on the decisions, the Family Court went on to consider the entitlement of the appellant - petitioner. Ext.A1 is the order passed in O.P. No.61 of 1995 filed by the respondent - wife for restitution of conjugal rights. The Family Court held that it is evident from Ext.A1 that the appellant - petitioner had no intention to resume cohabitation lest he would not have resisted granting of the prayer in O.P. No.61 of 1995. In O.P. No. 61 of 1995, the appellant had produced five letters sent by him. The Family Court found that at page 7 of Ext.A1 order, an observation was made to the effect that the appellant had sent the said letters to create evidence. Taking into account the said circumstances, the Family Court held that the appellant had no intention to resume cohabitation. The fact that he resisted O.P. No.61 of 1995 was also taken into consideration by the Family Court. Further, it was found that the respondent herein was always ready and willing for a reunion. After such consideration, the Family Court found that the appellant had no intention to resume cohabitation and hence he is not entitled to claim a decree under Section 13(1A)(ii) of the Act and dismissed the Original Petition. 8. A careful consideration of the decisions mentioned above would make it abundantly clear that the efflux of time stipulated under Section 13 M.F.A. NO. 950/2002 7 (1A)(ii) of the Act constitutes only satisfaction of the ground for relief and the court can still deny the relief if it is satisfied that the appellant - petitioner is taking advantage of his or her own wrong by virtue of Section 23(1)(a) of the Act. The word 'satisfied' used in the section has to be construed as 'satisfied on the basis of the legal evidence' adduced before the court that the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of the Act and not merely on probabilities. It must be on the matter on record and based on evidence. Certain aspects of law are also to be borne in mind while considering the question as to whether a party who fails to comply with the decree for restitution of conjugal rights could be stated to be taking advantage of his or her own wrong and should he or she be denied the decree for divorce on that ground. In that regard, it is to be noted that mere non compliance of the decree for restitution of conjugal rights per se would not amount to taking advantage of one's own wrong. In other words, mere reluctance on the part of one of the spouses in resuming cohabitation cannot be construed as a 'wrong' so as to disentitle him or her to get a decree of divorce under Section 13(1A)(ii) of the Act notwithstanding Section 23(1) (a) of the Act. It leads to the conclusion that even on satisfaction of the ground for dissolution of marriage by a decree of divorce under Section 13 (1A)(ii) of the Act, the entitlement to the relief depends on satisfaction of M.F.A. NO. 950/2002 8 the court that the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief. There can be no doubt that in all cases other than those excluded from the operation of the provisions under Section 23(1)(a) of the Act, the court is under an obligation to satisfy itself based on the evidence adduced before it that the petitioner is not taking advantage of his or her own wrong or disability for the purpose of such relief. 9. Now, the question is whether the Family Court has discharged the said obligation under Section 23(1)(a) of the Act while denying the relief to the petitioner. A careful analysis of the order of the court below in the light of the aforesaid discussions would reveal that the court below has not properly addressed such relevant questions for the purpose of arriving at a conclusion in terms of Section 23(1)(a) of the Act. Admittedly, in this case, it was the respondent who obtained a decree for restitution of conjugal rights. Of course, she has deposed that she was always ready and willing for a reunion. Reluctance on the part of the appellant - husband is also alleged. In such circumstances, the court below should have considered the question as to whether there was any obstacle for the wife to join the husband, who could be regarded as the 'wrong doer' for the purpose of Section 23(1)(a) of the Act and if it was M.F.A. NO. 950/2002 9 the appellant/petitioner, then whether he was attempting to take advantage of his own wrong etc. In short, without identifying the wrong doer, especially in view of the allegations and counter allegations, as made in this case, it would not be possible to properly consider the question as to whether the appellant - petitioner is taking advantage of his or her own wrong. In view of the decisions of the Honourable Apex Court referred above, the question whether the conduct on his part would amount to a wrong within the meaning of Section 23(1)(a) of the Act disentitling him to the relief of divorce, also should have been considered. 10. In this case, Family Court after referring to the observation made in O.P. No.61 of 1995 based on Exts.A1 to A5 entered in to the finding that the appellant had no intention to resume cohabitation. The action on the part of the appellant in not pursuing O.P. No.561 of 1997 filed by him for divorce was also taken to his detriment without assigning any reason. It is true, the respondent had deposed that she was always ready and willing for a reunion. It is evident that the Family Court has denied a decree of divorce to the appellant/petitioner under Section 13 (1A)(ii) of the Act on the ground that he had no intention to resume cohabitation. However, it is obvious that before holding the petitioner as disentitled by virtue of Section 23(1)(a) of the Act, the Family Court has M.F.A. NO. 950/2002 10 not discharged the obligation. Before observing that the petitioner cannot take advantage of his own wrong, the Family Court should have considered the question as to whether he is the wrong doer and if so, whether the conduct on his part would amount to a wrong within the meaning of Section 23(1)(a) of the Act so as to disentitle him to the relief of divorce. It is a fact that the appellant and respondent were living separately for a considerably long period and that they had lived together only for a very short period of 2 1/2 months. 11. In the circumstances, we are of the view that in the interest of justice, the matter has to be remanded to the Family Court for being disposed of in accordance with law. Accordingly, we set aside the order passed by the Family Court, Kozhikode dated 17.1.2002 in O.P. No.50 of 2001 and remand the case for disposal in accordance with law. The appeal is disposed of as above. (P.R. RAMAN) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ M.F.A. NO. 950/2002 11 C.R. P.R. RAMAN & C.T. RAVIKUMAR, JJ. M.F.A.NO. 950/2002 JUDGMENT 4th February, 2009. M.F.A. NO. 950/2002 12