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2001(2) Supreme 435
SUPREME COURT OF INDIA
(From Karnataka High Court)
D.P. Mohapatra & Doraiswamy Raju, JJ.
Hirachand Srinivas Managaonkar -Appellant
versus
Sunanda -Respondent
Civil Appeal No. 1473 of 1999
Decided on 20-3-2001
Counsel for the Parties :
For the Appellant : Ms. Kiran Suri, Advocate.
For the Respondent : K.R. Nagaraja, K.K. Tyagi, A.P. Jain, M. Sharda, Advocates.
Held : After the decree for judicial separation was passed on the petition filed by the wife it was the duty of both the spouses to do their part for cohabitation. The husband was expected to act as a dutiful husband towards the wife and the wife was to act as a devoted wife towards the husband. If this concept of both the spouses making sincere contribution for the purpose of successful cohabitation after a judicial separation is ordered then it can reasonably be said that in the facts and circumstances of the case the husband in refusing to pay maintenance to the wife failed to act as a husband. Thereby he committed a wrong within the meaning of Section 23 of the Act. Therefore, the High Court was justified in declining to allow the prayer of the husband for dissolution of the marriage by divorce under Section 13(1-A) of the Act. (Para 14)
(ii) Hindu Marriage Act, 1955-Sections 13(1-A), 23(1)(a)-Divorce-Petitioner does not have a vested right for getting relief of a decree of divorce merely on showing that ground in support of relief sought exists-Whether relief of dissolution of marriage by a decree of divorce is to be granted or not depends on facts and circumstances of the case-Object and purpose of the Act is to maintain marital relationship between spouses and not to encourage snapping of such relationship.
Held : The petitioner does not have a vested right for getting the relief of a decree of divorce against the other party merely on showing that the ground in support of the relief sought as stated in the petition exists. It has to be kept in mind that relationship between the spouses is a matter concerning human life. Human life does not run on dotted lines or charted course laid down by statute. It has also to be kept in mind that before granting the prayer of the petitioner to permanently snap the relationship between the parties to the marriage every attempt should be made to maintain the sanctity of the relationship which is of importance not only for the individuals or their children but also for the society. Whether the relief of dissolution of the marriage by a decree of divorce is to be granted or not depends on the facts and circumstances of the case. In such a matter it will be too hazardous to lay down a general principle of universal application. (Para 15)
(iii) Hindu Marriage Act, 1955-Section 10(2)-Judicial separation-Decree for-Effect of-It does not vest any absolute right in petitioner or respondent not to make any attempt for cohabitation with other party after decree for judicial separation has been passed-Decree for judicial separation does not sever or dissolve the marriage tie which continues to subsist-It affords an opportunity to the spouse for reconciliation and re-adjustment-Power is vested in the Court to rescind decree if it considers it just and reasonable to do so an application by either party.
Held : On a fair reading of the sub-section (2) it is clear that the provision applies to the petitioner on whose application the decree for judicial separation has been passed. Even assuming that the provision extends to both petitioner as well as the respondent it does not vest any absolute right in the petitioner or the respondent not to make any attempt for cohabitation with the other party after the decree for judicial separation has been passed. As the provision clearly provides the decree for judicial separation is not final in the sense that it is irreversible; power is vested in the Court to rescind the decree if it considers it just and reasonable to do so on an application by either party. The effect of the decree is that certain mutual rights and obligations arising from the marriage are as it were suspended and the rights and duties prescribed in the decree are substituted therefor. The decree for judicial separation does not sever or dissolve the marriage tie which continues to subsist. It affords an opportunity to the spouse for reconciliation and re-adjustment. The decree may fall by a conciliation of the parties in which case the rights of respective parties which float from the marriage and were suspended are restored. Therefore the impression that Section 10(2) vests a right in the petitioner to get the decree of divorce notwithstanding the fact that he has not made any attempt for cohabitation with the respondent and has even acted in a manner to thwart any move for cohabitation does not flow from a reasonable interpretation of the statutory provisions. At the cost of repetition it may be stated here that the object and purpose of the Act is to maintain the marital relationship between the spouses and not to encourage snapping of such relationship. (Para 17)
(iv) Hindu Marriage Act, 1955-Section 23(1)(a)-Decree in proceedings-Wife s petition seeking judicial separation on ground of adultery on part of her husband-Decree for judicial separation-Court ordered husband to pay as maintenance Rs.100/- per month to wife and Rs. 75/- per month for daughter-Non compliance-Husband s petition for divorce under Section 13(1-A)(i)-Whether husband can be declined relief on ground that he had failed to pay maintenance to his wife and daughter despite order of the Court-Held, Yes-Whether husband by refusing to pay maintenance to wife committed a wrong within the meaning of Section 23.
Held : The answer to the question, as noted earlier, depends on the facts and circumstances of the case and no general principle or straight-jacket formula can be laid down for the purpose. We have already held that even after the decree for judicial separation was passed by the Court on the petition presented by the wife it was expected that both the spouses will make sincere efforts for a conciliation and cohabitation with each other, which means that the husband should behave as a dutiful husband and the wife should behave as a devoted wife. In the present case the respondent has not only failed to make any such attempt but has also refused to pay the small amount of Rs.100 as maintenance for the wife and has been marking time for expiry of the statutory period of one year after the decree of judicial separation so that he may easily get a decree of divorce. In the circumstances it can reasonably be said that he not only commits the matrimonial wrong in refusing to maintain his wife and further estrange the relation creating acrimony rendering any reapprochment impossible but also tries to take advantage of the said wrong for getting the relief of divorce. Such conduct in committing a default cannot in the facts and circumstances of the case be brushed aside as not a matter of sufficient importance to disentitle him to get a decree of divorce under Section 13(1A). (Para 18)
(v) Hindu Marriage Act, 1955-Section 23(1)(a)-Decree for judicial separation on ground of adultery-Husband continuing to live with the mistress even after passing of the decree for judicial separation-Whether husband can be said to have committed and to be committing a wrong within the meaning of Section 23(1)(a)-Held, Yes-Illegality and immorality cannot be countenanced as aids for a person to secure relief in matrimonial matters.
Held : The respondent presented the petition seeking a decree of judicial separation on the ground that the appellant has been living in adultery since he is living with another lady during the subsistence of the marriage with her. The Court accepted the allegation and passed the decree for judicial separation. Even after the decree the appellant made no attempt to make any change in the situation and continued to live with the mistress. To pursue still into such an adulterous life with no remorse, even thereafter, is yet another wrong which he deliberately continued to commit, to thwart any attempt to re-unite and, in such circumstances can it be said that the passing of a decree for judicial separation has put an end to the allegation of adultery; or that the chapter has been closed by the decree for judicial separation and therefore he cannot be said to have committed a wrong by continuing to live with mistress. (Para 20)
JUDGMENT
D.P. Mohapatra, J.-The point that arises for determination in this case is short but by no means simple. The point is this: Whether the husband who has filed a petition seeking dissolution of the marriage by a decree of divorce under Section 13(1-A)(i) of the Hindu Marriage Act, 1955 (for short the Act ) can be declined relief on the ground that he has failed to pay maintenance to his wife and daughter despite order of the Court?
2. The relevant facts of the case necessary for determination of the question may be stated thus :
3. The appellant is husband of the respondent. On the petition filed by the respondent- under Section 10 of the Act seeking judicial separation on the ground of adultery on the part of the appellant a decree for judicial separation was passed by the High Court of Karnataka on 6.1.1981. In the said order the Court considering the petition filed by the respondent, ordered that the appellant shall pay as maintenance Rs.100/- per month to the wife and Rs.75/- per month for the daughter. Since then the order has not been complied with by the appellant and the respondent has not received any amount towards maintenance. Thereafter, on 13.9.1983 the appellant presented a petition for dissolution of marriage by a decree of divorce on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period of more than one year after passing of the decree for judicial separation.
4. The respondent contested the petition for divorce on the ground, inter alia, that the appellant having failed to pay the maintenance as ordered by the Court the petition for divorce filed by him is liable to be rejected as he is trying to take advantage of his own wrong for getting the relief. The High Court by the judgment dated 10.4.1995 in M.F.A.No.1436/1988 accepted the plea taken by the respondent and refused to grant the appellant s prayer for divorce. The said order is assailed by the appellant in this appeal by special leave.
5. The answer to the question formulated earlier depends on the interpretation of Section 13(1-A) and its interaction with Sections 10 and 23(1 )(a) of the Act.
6. Ms. Kiran Suri, learned counsel appearing for the appellant, contended that the only condition for getting a divorce under Section 13(1-A) is that there has been no resumption of co-habitation 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 both the spouses were parties. If this pre-condition is satisfied, submitted Ms. Suri the Court is to pass a decree of divorce. According to Ms. Suri Section 23(1)(a) has no application to a case under Section 13(1-A)(i). Alternatively, she contended that the wrong allegedly committed by the appellant has no connection with the relief sought in the proceeding i.e. to pass a decree of divorce. According to Ms. Suri an order for payment of maintenance is an executable order and it is open to the respondent to realise the amount due by initiating a proceeding according to law.
7. Per contra Mr.K.R.Nagaraja, learned counsel for the respondent, contended that in the facts and circumstances of the case as available from the record the High Court rightly rejected the prayer of the appellant for a decree of divorce on the ground that the move was not a bona fide one, that he continues to live in adultery even after the decree for judicial separation was passed and that he has failed to maintain his wife and daughter. Mr. Nagaraja submitted that granting his prayer for a decree of divorce will be putting a premium on the wrong committed by the appellant towards the respondent and her child. Shri Nagaraja also raised the contention that the High Court while directing the appellant to pay maintenance to his wife and daughter (Rs.100/- + Rs.75/- per month) did not pass any order on the prayer made by the respondent for education expenses and marriage expenses of the daught
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