IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 Mat.Appeal.No. 213 of 2008() ---------------------------- OP.648/2007 of FAMILY COURT, PALAKKAD .................... PETITIONER(S): APPELLANT ------------------------ RAJESH,S/O.T.V.SREDHARA MENON AGED 39, RESIDING AT SREELAKAM PUTHUR, PALAKKAD. BY ADV. SRI.K.C.ELDHO SRI.S.SREEKUMAR SRI.K.C.ELDHO RESPONDENT(S): --------------- SHEELA,AGED 33 YEARS D/O.P.K.NARAYANANKUTTY NAIR RESIDING AT ANUGRAHA VADASSERY P.O., KERALASSERY, PALAKKAD. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1 SRI.T.C.SURESH MENON FOR R1 SRI.JIBU P THOMAS FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- Mat. Appeal No. 213 of 2008 ------------------------------------------------- Dated this the 22nd day of June, 2010 JUDGMENT Basant,J. (i) In a claim for divorce under Sec.13(1A)(ii) of the Hindu Marriage Act, 1955 (for short `the Act') when the statutory ground is established, what is the nature of “wrong” that can lead to the dismissal of the claim under Sec.23(1)(a) of the Act? (ii) How contumacious should the alleged wrong be to attract rejection under Sec.23(1)(a) of the Act? (iii) Can suffering of an uncontested decree for restitution of conjugal rights and mere non-compliance of such a decree be reckoned as wrongs under Sec.23(1)(a) to justify the rejection of the claim for divorce under Sec.13(1A) of the Act? These are the questions that arise for consideration in this appeal. Mat. Appeal No. 213 of 2008 -: 2 :- 2. To the vital and crucial facts first. The parties are spouses. Their marriage in accordance with the Hindu religious rites was solemnized on 26/1/2000. The matrimony was in doldrums from the very initial days. They went for honey moon to Port Blair; came back to the native place and the husband went to his place of employment - Mumbai, after 20 days of marriage. His mother was afflicted with cancer. She expired. The wife was taken to Mumbai, the place of employment of the husband. They lived together there for some time. Admittedly, after a period of about 6 months, in November 2000, the spouses started separate residence. From that day onwards the parties are residing separately. 3. There is a long history of litigation between the parties. M.C.No.40/02 was filed by the wife claiming maintenance under Sec.125 of the Code of Criminal Procedure. The husband entered appearance and filed a counter statement. He complained that his wife was cruel to him. He denied allegations of cruelty against him. He did not want to continue the matrimony. He submitted that he wants the marriage to be dissolved. He contended that there was no breach of his obligation to pay maintenance. He did not offer to maintain her on condition that she lives with him. He remained ex parte later. Mat. Appeal No. 213 of 2008 -: 3 :- Notwithstanding that, it is reported, that there was an order passed by the court holding that the husband is guilty of cruelty. The husband was directed to pay maintenance at the the rate of Rs.5,000/- per mensem. There is no grievance that the said amount is not being paid promptly. 4. Be that as it may, the husband filed M.O.P.No.62/02 before the Sub Court, Palakkad, on 25/5/02 claiming divorce on the ground of cruelty under Sec.13(1)(ia) of the Act. While that petition was pending, the wife filed M.O.P.No.108/02 before the Sub Court, Palakkad, claiming restitution of conjugal rights under Sec.9 of the Act. Both M.O.P.No.62/02 and M.O.P.No.108/02 were pending simultaneously. The husband in M.O.P.No.108/02 filed a counter statement whereunder he agreed to the passing of a decree for restitution of conjugal rights. M.O.P.No.108/02 was thus allowed on 10/1/03 by Ext.A1 order. Ext.A2 is the copy of the petition in M.O.P.No.108/02. 5. After the said petition was allowed on 10/1/03, we find the husband filing I.A.No.558/04 on 14/2/04 claiming amendment of M.O.P.No.62/02 to incorporate the claim for divorce on another ground in the wake of subsequent developments. He prayed that decree for divorce may be granted to him under Sec.13(1A)(ii) of the Act also. In short, the Mat. Appeal No. 213 of 2008 -: 4 :- prayer was that the decree for restitution of conjugal rights having been passed on 10/1/03 and the parties having not resumed cohabitation, in obedience to the said decree, he was entitled to claim divorce under Sec.13(1A)(ii) of the Act. That petition for amendment was allowed on 24/11/05. 6. The Family Court by judgment dated 6/1/06 in M.O.P.No.62/02 rejected the claim for divorce on both grounds. An appeal was preferred before this Court and this Court by judgment dated 11/9/07 in Mat. Appeal No.113/06 allowed the appeal in part and remanded the case to the Family Court for fresh disposal of M.O.P.No.62/02. By then, the Family Court had been established and it was hence that the matter which had arisen from the proceedings before the Sub Court, Palakkad, was ordered to be disposed of by the Family Court. 7. The Family Court, Palakkad, took the said M.O.P.No.62/02 on file after remand, re-numbered the same as O.P.No.648/07 and proceeded to dispose of the same on merits. P.W.1 the husband and R.W.1 the wife were the only witnesses examined. Exts.A1 and A2 to which we have already referred were the only documents marked. 8. The court below came to the conclusion that the appellant/husband was not entitled to claim divorce on both Mat. Appeal No. 213 of 2008 -: 5 :- grounds. Evaluating the oral evidence tendered by P.W.1 and R.W.1, the court below came to the conclusion that contumacious cruelty to attract a decree for divorce under Sec.13(1)(ia) of the Act has not been established by the husband. The court below however came to the conclusion that the ground for divorce under Sec.13(1A)(ii) has been established. But it was held that the appellant is disentitled to a decree under Sec.13 (1A)(ii) as the claim was barred under Sec.23(1)(a) of the Act. In short, the court held that suffering of an uncontested decree for restitution of conjugal rights and the subsequent non- compliance with such a decree must be reckoned as wrongs falling within the sweep of Sec.23(1)(a) of the Act and hence the appellant was disentitled for a decree for divorce under Sec.13 (1A)(ii) of the Act. 9. It will be apposite straightaway to take note of the fact that after the Sub Court dismissed M.O.P.No.62/02 on 6/1/06 i.e., long after the stipulated period of one year, an application for execution of the decree for restitution of conjugal rights (order in M.O.P.No.108/02) was filed for the first time by filing an execution petition on 28/6/06. It is conceded that notwithstanding the steps taken in execution, the said decree has not been executed so far. Mat. Appeal No. 213 of 2008 -: 6 :- 10. We shall straightaway take note of the fact that the claim for divorce on the ground of cruelty under Sec.13(1)(ia) was rejected by the court below choosing not to accept and act upon the oral evidence of P.W.1 in the light of the contra evidence tendered by R.W.1. The learned counsel for the appellant has not made any concession. But we note that he has not strained to argue that the discretion exercised by the court below not to accept the evidence of P.W.1 in preference to that of R.W.1 is not justified. We find no reason to interfere with that discretion exercised by the trial court which had the evident advantage and opportunity to see the witnesses perform in the witness stand before it. In exercise of our appellate jurisdiction, we therefore do not find any reason to interfere with the rejection of the claim for divorce under Sec.13(1)(ia) of the Act. 11. That takes us to the claim for divorce under Sec.13(1A) and the three important questions that have been raised above. We are certainly of the opinion that the legislative history must be borne in mind before we attempt to answer the very interesting and important questions raised. Prior to 1964, Sec.13 of the Divorce Act read as follows: “13. Divorce. (1) Any marriage solemnized, whether before or after the Mat. Appeal No. 213 of 2008 -: 7 :- 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-- (i) x x x x x (ii) x x x x x (iii) x x x x x (iv) x x x x x (vi) x x x x x (vii) x x x x x (viii) has not resumed cohabitation for a space of two years or upwards after the passing of a decree for judicial separation against that party; or (ix) has 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”. (portions irrelevant to the controversy omitted and emphasis supplied) 12. The legislature was evidently not satisfied with the law as reflected in the above statutory provision. This obliged the legislature to make comprehensive amendment of the law relating to the ground of divorce under Clauses (viii) and (ix) referred above by an amendment which was introduced with effect from 20/12/64. It is thus that Sec.13(1A) found its way Mat. Appeal No. 213 of 2008 -: 8 :- into the statute book. We extract Sec.13(1A) below: “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) that there has been no 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 or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.” (emphasis supplied) 13. The mischief rule must be borne in mind. What was the law prior to the amendment? What mischief did the legislature attempt to abate by introduction of Sec.13(1A) and Mat. Appeal No. 213 of 2008 -: 9 :- the deletion of Clauses (viii) and (ix) of Sec.13? First of all this has to be ascertained correctly before attempting to answer the three questions referred above. Prior to the amendment under Sec.13(1), a claim for divorce under Clauses (viii) and (ix) could have been made by either spouse only on the ground that the other party has failed to comply with the decree for restitution of conjugal rights within the prescribed period after passing the decree. In short, the application could have been filed only by the decree-holder and not by the one who had suffered the decree. The law contemplated a decree for divorce under Clauses (viii) and (ix) only if a party who suffered the decree did not comply with the same. In short, the one who had suffered the decree could not possibly raise any claim for divorce under Sec.13(1)(viii) or (ix). There can be absolutely no doubt about this position of law that prevailed prior to the amendment in 1964. For the fault of the other spouse who did not comply with the decree, the decree holder spouse was permitted to claim divorce. The decree holder spouse could not claim divorce under Sec.13(1)(ix) on the ground that he himself had not complied with the decree for restitution. The judgment debtor spouse could not make such an application for divorce whose soever fault it be that led to non-compliance. It is in this context Mat. Appeal No. 213 of 2008 -: 10 :- that Sec.13(1A) was introduced into the statute book. We have extracted Sec.13(1A) above. It is crystal clear that by the amendment the legislature wanted to permit or enable the one who has suffered the decree for restitution of conjugal rights/judicial separation also to claim a decree for divorce under Sec.13(1A). Fault to failure is the avenue in refined progressive marital law. Search for fault need not always be there and the fact of irretrievable failure of marriage is recognized progressively by law in various systems of jurisprudence as a valid ground for divorce. It would be puerile to contend that the legislature which brought about the amendment in 1964 did not want to take note of this pressing requirement to move from fault to failure as ground for dissolution of marriage. The Indian social ethos had to be borne in mind. The great emphasis which the Indian society gives to the preservation of the institution of marriage had to be borne in mind. In spite of all that, the legislature widened the avenue for divorce on the ground of non-compliance with the decree for restitution of conjugal rights by affording opportunity to claim divorce on that ground not only to a party who had obtained the decree but also to a party who had suffered the decree, provided the decree for restitution had not been complied with for the stipulated period Mat. Appeal No. 213 of 2008 -: 11 :- and there has been no resumption of cohabitation within the prescribed period. The spouse claiming divorce under Sec.13 (1A)(ii) does not now have to show the fault of the other spouse. He need only show that notwithstanding a binding decree for restitution of conjugal right, the spouses have not resumed cohabitation - who ever be the decree holder or judgment debtor and whosesoever fault it be that led to the failure to resume cohabitation. 14. Any attempt to interpret the entitlement of a party to a decree for divorce under Sec.13(1A) cannot be undertaken by a court without being conscious of the social realities and the legislative destinations that persuaded the legislature to bring about an amendment in the form of Sec.13(1A) after deleting Clauses (vii) and (ix) of Sec.13(1) as it originally stood. 15. According to us, there can be no doubt on what is required to be proved to entitle a party for a decree for divorce under Sec.13(1A)(ii). Such party must prove: (1) That there has been a decree for restitution of conjugal rights; and (2) That there has been no restitution of conjugal rights between the parties notwithstanding the lapse of a period of one year (it was two years prior to 27/5/76). Mat. Appeal No. 213 of 2008 -: 12 :- It is very easy to understand from a plain reading of Sec.13(1A) that the legislature was not concerned about the responsibility for non-compliance of a decree for restitution of conjugal rights. Did the court direct restitution? In spite of such decree, where the parties unable to resume cohabitation? If they could not resume cohabitation, notwithstanding the question as to who had obtained the decree and on account of whose fault the restitution did not take place, both spouses were held entitled to the decree for divorce under Sec.13(1A)(ii). That is the legislative scheme undoubtedly. 16. The above position appears to be crystal clear. It is unnecessary to go to the precedents to ascertain the true scope and the change in law brought about by introduction of Sec.13 (1A) after deletion of Clauses (viii) and (ix) of Sec.13. All precedents only confirm the above understanding of the scope of Sec.13(1A)(ii) of the Act. 17. The learned counsel for the respondent contends that establishment of this ground under Sec.13(1A)(ii) is insufficient by itself to entitle a spouse to claim divorce under Sec.13(1A). We are afraid that that would be arguing against what is patent in the statutory provision. The legislature has laid down the ground and on an establishment of that ground, if there is no Mat. Appeal No. 213 of 2008 -: 13 :- disabling circumstances, the decree must be conceded to the claimant. It is not open to this Court to introduce subjective norms as to what further circumstances must be established in addition to the circumstances enumerated in Sec.13(1A)(ii) to justify the grant of a decree for divorce. That would be questioning the wisdom of the legislature which we are not supposed to and shall not do. 18. The learned counsel for the appellant relies on certain observations in precedents to indicate that really Sec.13(1A) was introduced by the 1964 amendment accepting the theory that irretrievable break down of marriage must be recognized as a ground for divorce under certain special circumstances. Our attention has been drawn to the observations of Justice Chinnappa Reddy who headed the two Judge Bench in Ms. Jorden Diengdeh v. S.S. Chopra (AIR 1985 SC 935). Their Lordships were considering whether irretrievable break down of marriage need be recognized as a ground for dissolution of marriage. It is in this context that we find the following observations which convey eloquently that the principle of irretrievable break down of marriage justifying a decree for dissolution is recognized in Sec.13(1A). “.......... We may also notice that Mat. Appeal No. 213 of 2008 -: 14 :- irretrievable break down of marriage is yet no ground for dissolution of marriage under the Hindu Marriage Act also, though the principle appears to have been recognized in Sec.13(1A) and Sec.13(B).” 19. We feel that it will also be apposite in this context to refer to the following observations which appear in paragraph-10 of the judgment of the two Judge Bench in Saroj Rani v. Sudarshan Kumar (AIR 1984 SC 1562) where also we find that their Lordships accepted that Sec.13(1A) really reflects the anxiety of the legislature to put an end to marriages which have irretrievably broken down and which remain only in law and not in fact. We shall have occasion to refer to this decision in further detail later. But for the moment we extract the following passage in paragraph-10: “10. ........ Further more we reach this conclusion without any mental compunction because it is evident that for whatever be the reasons this marriage has broken down and the parties can no longer live together as husband and wife, if such is the situation it is better to close the chapter.” (emphasis supplied) Mat. Appeal No. 213 of 2008 -: 15 :- 20. From Ms. Jorden Diengdeh v. S.S. Chopra (1985 SC 935) to Naveen Kohli v. Neelu Kohli (AIR 2006 SC 1675) the Supreme Court has been repeatedly emphasizing the need to reckon irretrievable break down of marriage as an independent valid ground for divorce. It is now well settled that a decree on that ground alone cannot be granted until and unless the legislature recognizes that to be a valid ground for divorce. But, as stated in Jorden (Supra), Section 13(1A)(ii) recognizes the principle that irretrievable break down of marriage must be recognized as a sufficient ground for divorce, at least, under the circumstances enumerated under Section 13(1A)(ii). We have no hesitation to agree with Section 13(1A)(ii) recognizes the principle that irretrievable break down of marriage can be recognized as a valid ground for divorce provided it is shown to the satisfaction of the court that in spite of a decree for restitution of conjugal rights, the spouses have not resumed co- habitation within the prescribed period. That is recognized by the legislature as a valid ground for either of the spouses - decree holder or the judgment debtor, to seek divorce. We may at the risk of repetition observe that fault is irrelevant when a claim for divorce is raised under Sec.13(1A). Who is the decree holder or judgment debtor in the proceedings for restitution of Mat. Appeal No. 213 of 2008 -: 16 :- conjugal rights is also irrelevant. What is relevant is only whether a marriage remains without restitution even after elapse of a period of one year from the date of the decree for restitution. Such dead marriages, the legislature accepts must be put an end to legally. This we hold is the only way to understand Sec.13(1A)(ii) which was introduced by amendment. 21. A dispute has been raised as to whether Sec.13(1A) is also guided by Sec.23(1)(a) of the Act. There can be no controversy on that aspect now. It is well settled and trite now that Sec.23(1)(a) controls and guides Sec.13(1A) also. Notwithstanding the fact that the grounds for divorce under Sec.13(1A) have been established, the petitioner claiming a decree for divorce has further got to show that his claim for relief is not barred under Sec.23(1)(a). The position is too well settled now to require reference to the precedents. The decision in Hirachand Srinivas Mangaonkar v. Sunanda ((2001) 4 SCC 125) removes the last trace of doubt, if any, on this question. If a spouse claiming divorce under Sec.13(1A) is found to be guilty of any wrong falling within the sweep of Sec.23(1)(a), notwithstanding the establishment of the ground for divorce under sec.13(1A), such party shall not be entitled for divorce not because of the ground under Sec.13(1A) has not Mat. Appeal No. 213 of 2008 -: 17 :- been established but because relief would be barred under Sec.23(1)(a) of the Act. 22. We may straightaway extract Sec.23(1)(a) of the Act: “23. Decree in proceedings.-- (1) In any proceeding 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) of 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.” Sec.23(1)(a) guides and controls all proceedings under the Act except Clauses (a), (b) and (c) of Sec.5(ii). When Sec.13(1A) was introduced no consequent amendment was introduced in Sec.23. Therefore, Sec.23(1)(a) indisputably controls and guides Sec.13 (1A) also. It is here that a proper understanding of the concept of `wrong' or `disability' under Sec.23(1)(a) becomes crucial and vital. The concept of `wrong' under Sec.23(1)(a) cannot be understood without reference to the nature of the claims. The nature of the right to claim divorce must certainly have an Mat. Appeal No. 213 of 2008 -: 18 :- impact in ascertaining what could be a `wrong' to disentitle a party to claim such relief under Sec.23(1)(a). In short, there cannot be a universal concept of `wrong' applicable to all claims. The concept of wrong has to be understood and ascertained, conscious of the nature of the right conferred and the claim staked. An improper understanding of the concept of wrong may lead to denial and frustration of the right conferred and the relief claimed. That has got to be zealously avoided. 23. That takes us to the crucial question as to what can be reckoned as a wrong for the purpose of Sec.23(1)(a) of the Act in a claim for divorce under Sec.13(1A)(ii) of the Act. Our attention has been drawn to all the four decisions of the Supreme Court having a bearing on the question. They are: (1) Dharmendra Kumar v. Usha Kumar (AIR 1977 SC 2218); (2) Saroj Rani v. Sudarshan Kumar (AIR 1984 SC 1562); (3) T. Srinivasan v. T. Varalakshmi Mrs.) ((1998) 3 SCC 112) and (4) Hirachand Srinivas Mangaonkar v. Sunanda ((2001) 4 SCC 125). Our attention has also been drawn to two decisions of the Division Benches of the Kerala High Court in K.M.K. Nair v. Mat. Appeal No. 213 of 2008 -: 19 :- Radhakumari (1988 (1) KLT 461) and Ajith Kumar v. Jeeja (2009 (1) KLT 634). 24. At the out set we must note that Sec.13(1A) and Sec.23 (1)(a) have to be read harmoniously. A ground recognized under Sec.13(1A) cannot definitely operate as a wrong under Sec.23(1)(a). If that be so, we will have to assume that what the legislature has given