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IN THE HIGH COURT OF BOMBAY
(Y. V. Chandrachud J.)
LAXMIBAI LAXMICHAND SHAH -Appellant
v.
LAXMICHAND RAVJI SHAH -Respondent.
Advocates appeared
For appellant- M. P. Kenia, instructed by Matubhai Jamietram and Madan.
For respondent-N. P. Vyas, instructed by Khona and Suryakant.
HINDU MARRIAGE ACT - SECTION 13(1A) - SECTION 23(1) - DIVORCE - RESTITUTION OF CONJUGAL RIGHTS - INTERPRETATION - APPLICABILITY OF SECTION 23(1) TO SECTION 13(1A) - COURT'S DISCRETION TO REFUSE DIVORCE DESPITE NON-COMPLIANCE WITH RESTITUTION DECREE - TAKING ADVANTAGE OF OWN WRONG.
Fact of the Case:
Wife obtained a decree for restitution of conjugal rights in 1959. In 1965, the husband filed for divorce on the ground of no restitution for two years after the decree. The trial court allowed the divorce, holding that the 1964 amendment to the Hindu Marriage Act, which added section 13(1A), gave an unqualified right to either party to obtain a divorce in such cases.
Finding of the Court:
The court held that the 1964 amendment to section 13 did not abrogate the provisions of section 23, which requires the court to consider whether the petitioner is taking advantage of his or her own wrong before granting a divorce. The court found that the husband was not willing to comply with the restitution decree and was, therefore, taking advantage of his own wrong by seeking a divorce.
Issues: 1. Whether section 23(1) of the Hindu Marriage Act applies to petitions for divorce filed under section 13(1A) of the Act. 2. Whether the court can refuse to grant a divorce under section 13(1A) if the petitioner is taking advantage of his or her own wrong.
Ratio Decidendi: 1. Section 23(1) of the Hindu Marriage Act applies to all proceedings under the Act, including petitions for divorce filed under section 13(1A). 2. The court has the discretion to refuse to grant a divorce under section 13(1A) if the petitioner is taking advantage of his or her own wrong, as provided in section 23(1)(a) of the Act.
Final Decision: The court allowed the wife's appeal, set aside the divorce decree granted by the trial court, and dismissed the husband's petition for divorce.
2. It is necessary to state but a few facts for an appreciation of the question which arises in the appeal. The parties were married on February 8, 1945 and on April 27, 1959 the wife obtained a decree for restitution of conjugal rights in a proceeding instituted by her for that relief. On February 8, 1965, the husband initiated the present proceedings for dissolution of the marriage by a decree of divorce on the ground that the decree for restitution was never complied with.
3. It was urged in the trial Court on behalf of the wife that the decree for restitution of conjugal rights remained unexecuted on account of default on the part of the husband and, therefore, it was not open to him to ask that the marriage be dissolved by a decree of divorce. The wife sought leave to adduce evidence showing that the husband had wilfully refused to comply with the decree for restitution, but the learned Judge disallowed that evidence as he took the view that the amendment introduced to section 13 of the Hindu Marriage Act of 1955 (hereinafter called "the Act"), by amending Act No. XLIV of 1964 conferred an unqualified right on either party to a marriage to obtain a decree for divorce if there was no restitution of conjugal rights between the parties to the marriage for a period of two years or upwards after the decree for restitution was passed. The learned Judge has held that it is irrelevant to consider in such a case whether this or that party is to blame for non-compliance with the decree for restitution. The correctness of this view is challenged in this appeal.
4. The question which arises for decision is whether a decree for divorce must necessarily follow on a decree for restitution of conjugal rights if there has been no restitution of conjugal rights as between the parties to the marriage for a period of two years or upwards after the decree for restitution was passed, or whether it is open to the Court to refuse to pass a decree of divorce on the ground that the party which is seeking divorce is taking advantage of his or her own wrong, as contemplated by section 23 (1) (a) of the Act. The decision of this question must depend upon the construction of the provisions contained in sections 13 and 23 of the Act and the effect of the amendment introduced by amending Act No. XLIV of 1964 to section 13. Section 13 of the Act provides by sub-section (1), in so far as is material, that any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented either by the husband or the wife, be dissolved by a decree of divorce on the grounds mentioned in that sub-section. Originally, nine different grounds were available to a husband or wife for obtaining a decree of divorce under subsection (1) of section 13. Under clause (viii) of sub-section (1), a marriage could be dissolved by a decree of divorce on a petition presented by the husband or the wife on the ground that the other party had not resumed cohabitation for a period of two years or upwards after the passing of a decree for judicial separation against that party. Under clause (ix) of sub. section (1), a marriage could be dissolved by a decree of divorce on a petition presented by the husband or the wife on the ground 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 a decree for restitution against that party.
5. Amending Act No. XLIV of 1964 which came into force on Decembe
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