2014 Supreme(Bom) 4

In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI & A.S. CHANDURKAR, JJ.
Smt. Uttara Praveen Thool
Versus
Praveen
First Appeal No. 308 of 1998
Decided on: 06-01-2014

Headnote:HINDU MARRIAGE ACT, 1955 - Sections 9 and 13 - Decree of divorce. - Where both parties led evidence only on aspect of divorce therefore non-framing of issue as regards original prayer of restitution of conjugal rights, would not vitiated decree of divorce. - The respondent had filed the present proceedings under Section 9 of the said Act seeking restitution of conjugal rights. In paragraph Nos. 6, 9 and 10 of the petition, he had made various assertions in support of aforesaid relief. In reply thereto, the appellant had denied the claim as made by the respondent. This, therefore, gave rise to an issue pertaining to the claim of the respondent for restitution of conjugal rights. Such issue, however was not framed by the Judge of the Family Court. It is, therefore, necessary to consider whether failure to frame said issue has resulted in vitiating the impugned judgment.

       In this regard, the provisions of Section 99 of the Code of Civil Procedure may be noticed. Under Section 99, no decree can be reversed or substantially varied on account of any defect or irregularity in any proceedings not affecting the merits of the case of the jurisdiction of the Court. Though failure to frame a issue that arises on the basis of the pleadings of the rival parties would amount to an error being committed by the Trial Court, that by itself will not be a ground to reverse the impugned judgment. It is necessary to note here that during pendency of the proceedings, the respondent had made another prayer seeking grant of divorce on the ground of desertion. Such prayer was permitted to be added. The parties thereafter went to trial and contested the proceedings. While the respondent led evidence for grant of divorce, the appellant led evidence to demonstrate that the respondent was not entitled for said relief. Therefore, the prayer for divorce was, in fact, contested as being the main relief sought in said proceedings. Further, assuming that the issue pertaining to claim for restitution of conjugal rights was framed and answered against the respondent, the same would not have resulted in dismissal of petition in view of the other prayer in the proceedings. Similarly, the nature of evidence for seeking the relief of restitution of conjugal rights and for seeking divorce on the ground of desertion would naturally be of a‘ distinct nature. Such evidence could not be overlapping. In these circumstances, therefore, it is clear that the parties have contested the proceedings with regard to the prayer for grant of divorce, mere failure on the part of the Judge of the Family Court in framing the issue as regards restitution of conjugal rights would not have the result of vitiating the impugned judgment. In any event, the appellant before commencement of the evidence did not raise any grievance before the Family Court that the issue pertaining to restitution of conjugal rights had not been framed. Hence, taking an overall view of the matter, Court finds that the failure on the part of the Family Court in framing the issue as regards the claim for restitution of conjugal rights has not resulted in vitiating the impugned judgment.

       HINDU MARRIAGE ACT, 1955 - Sections 9 and 13 - Restitution of conjugal rights. - A party refusing to cohabit, cannot be permitted to oppose alternative relief of divorce in a petition for restitution of conjugal rights. - Similarly, that the appellant‘s objection to amendment and to insertion of an additional prayer seeking the relief of decree of divorce on account of cruelty is also unsustainable. A civil suit to certain extent, is bound by the procedural laws and in province of amendment, by Order II Rule 2, Order VI, Rule 17 of CPC and the Limitation Act, 1963. The Hindu Marriage Act, 1955 does not prescribe any outer period to prove the desertion or cruelty, if the cause continues. The said Act only prohibits filing of premature proceedings and after expiry of said bar-period, the cause in most of the matrimonial disputes may be continuous accruing till the normal ties are not restored. Section 21 only makes CPC applicable as far as possible and not otherwise.

       The legislative intent to attempt to put an end to the matrimonial dispute in one proceeding and to avoid multiplicity is also perceived in Section 23 and Section 23-A of the said Act. Duty of Court to attempt to recon-ciliate or divorce by mutual consent or then an irretrievable breakdown of marriage are some of the features peculiar to this jurisdiction. Thus, primacy is given to restoration of normal marital ties and if not possible, to grant other appropriate relief of separation or divorce. There is no principle that husband, having failed to secure the relief of restitution, can thereafter, never, file the proceedings for divorce on the available grounds. Non-execution of a decree for the restitution of conjugal rights may also lead to grant of divorce. Hence, the concept like changing the nature of suit etc. may be inherently foreign to and not applicable in matrimonial matters. Perspective that due to change in nature of suit the defense may receive severe set back may not be available at all in matrimonial jurisdiction. However, not much arguments are advanced on these lines before us and hence, this aspect open for its due consideration in an appropriate case. But, on the date on which the respondent husband sought the leave to amend in present matter, it was also open to him, to institute fresh proceedings for grant of divorce on the ground of cruelty and continuous desertion. As institution of the fresh case was not prohibited, he could have very well sought leave to amend and add an additional relief in the alternative in very same proceeding.

       Husband-original petitioner was attempting to show unwarranted withdrawal from society by his wife i.e. appellant. Even while amending, he placed his unequivocal desire to have restitution and hence, qualified the amended prayer clause by employing the words “if not possible“. The respondent wife in said proceeding can not object to such prayers as mutually destructive prayers. She can not be heard to say that she will not cohabit and will not permit the husband to pray for dissolution of the marriage. She can not turn a Nelson‘s eye to the forgiveness offered by husband by filing a case for restitution against her and at the same time, frown upon the request for putting an end to matrimonial relationship because of her wrong offered to be condoned. Appellant can not approbate and reprobate at the same time. That the respondent husband has also continued with his bona fides while seeking the amendment and it is not open to appellant to urge any prejudice, though factually none is caused to her. The admitted date on which appellant left the matrimonial house is 23.8.1993 and the parties have not resided together thereafter. Child is born to the couple on 27.8.1993 and the proceedings for restitution are instituted on 22.12.1994. After filing of a written statement by wife turning down his forgiveness and failure before the Marriage Counselor, leave to amend was sought and granted. In amended plea also, desire to condone is expressed and divorce is sought, if the condonation does not evoke required response. On that day, it was open to husband to file fresh proceedings for divorce on the strength of desertion and cruelty. Hence, by amendment, the time spent in litigation in seeking response to conditional forgiveness between 22.12.1994 till October, 1996 is thus sought to be put to use permitted by law. Appellant wife can not on one hand refuse to cohabit and on other hand, insist for institution of fresh case on the ground of desertion and cruelty. Encouraging such a defence will be to put a premium on party at fault and an injustice to a bona fide spouse who desires to resume cohabitation. It will be defeating the very scheme of jurisdiction with the Court under the said Act.

       HINDU MARRIAGE ACT, 1955 - Sections 9, 13(1)(i-a) and 23(1)(b) - Decree of divorce. - Since petition for restitution of conjugal rights under Section 9 of Act not amounts to condonation of cruelty done by other party hence decree of divorce not barred. - Whether for constituting condonation, the conduct of only one of the parties is to be considered or whether the conduct of both parties is to be taken into account. In other words, whether the unilateral act of one of the parties is to be considered or whether the bilateral acts of both parties are to be considered. If for constituting condonation, there must be forgiveness and restoration, it is obvious that bilateral acts of both parties will be required to be taken into account while considering the aspect of condonation.

       Forgiveness and restoration cannot be unilateral and for it to be effective and fruitful, it has to be bilateral. One party to the marital tie may be ready to forgive and restore the same. One of the modes could be by filing proceedings for restitution of conjugal rights. The other party may, however, not be ready to forgive and restore said tie.

       The proceedings filed by one party for restitution could be opposed by the other by refusing to rejoin the marital tie. The same would not result in condonation in as much as there would be no consensus between the parties for the purposes of forgiveness and restoration. It would remain one sided the aspect of condonation will have to be adjudicated after taking into account the bilateral acts of both parties. The offer made by one party and the reciprocal conduct of the other will have to be viewed together while determining condonation in terms of Section 23(1)(b) of the said Act.

       In matter like one at hand, where the desertion continues without even a day’s break, the conditional forgiveness offered by the husband is not reciprocated by the respondent wife. On the contrary, she refuses to take advantage of the opportunity available and persists in desertion. As such, condonation which technically is a bilateral act or decision, never occurred and therefore the wife cannot resist the decree of divorce on the ground that husband has condoned her acts.

       HINDU MARRIAGE ACT, 1955 - Sections 9 and 13(1)(i-b) - Divorce in petition under Section 9. - Amendment in petition originally filed under Section 9 of Act, seeking alternative relief of divorce on ground of desertion would take effect from date it was allowed. - The case of the respondent is that the appellant had left the matrimonial home in the last week of December 1993. The respondent thereafter filed application for amendment on 13.6.1996 and same was allowed on 19.10.1996. By said amendment the respondent was permitted to raise the ground of divorce on account of desertion under Section 13(1)(i-b) of the said Act. The effect of allowing the amendment on 19.10.1996 would be that it would be necessary for the respondent to prove that for a continuous period of two years prior thereto, the appellant had deserted the respondent. The amendment, therefore, would necessarily be required to have taken effect from the date it was allowed i.e. on 19.10.1996 and the same would not relate to the date of filing of the petition. The Judge of the Family Court while considering this issue has observed that said ground of divorce was available to the respondent for seeking divorce. The aspect of avoiding multiplicity of proceedings has also been taken into account while allowing the amendment.

       In the said case also, the ground of desertion was added by way of amendment during pendency of the matrimonial proceedings. It was observed that the ground that was initially not available could be permitted to be added on the basis of subsequent conduct of the parties and the same would not relate back to the date of filing of the petition but, said ground would become available from the date of grant of the amendment. The aforesaid observations of the Single Judge are correct and respectfully affirm the same. The aforesaid decision of the Single Judge has been also followed by the Delhi High Court in Sanyogta (supra).

       Therefore, the amendment permitting raising of a ground of divorce during pendency of the proceedings would not relate back to the date of filing of the proceedings, but would become available from the date it is granted.

       HINDU MARRIAGE ACT, 1955 - Section 13 - Ground for divorce. - Irretrievable breakdown of marriage, cannot be a ground for grant of decree of divorce. - Irretrievable breakdown of marriage is not a ground envisaged by Section 13 of the said Act for grant of divorce. Separation of the parties for a long period of time without any justifiable cause amounting to desertion could be a ground for passing a decree of divorce under Section 13(1)(i-b) of the said Act. As observed by the Hon’ble Apex Court in Chetandass v. Kamladevi, AIR 2001 SC 1709 : 2001 (3) All MR 255 (SC), it would not be appropriate to apply any submission of "irretrievably broken marriage" as a straitjacket formula for grant of divorce. Thus, it is clear that mere submission that the marriage has irretrievably broken down cannot lead this Court to pass a decree for divorce without examining if any ground for divorce has been made out or not.

       HINDU MARRIAGE ACT, 1955 - Section 13(1)(i-a)(i-b) - Divorce on ground of cruelty/desertion. - Since wife neither interested in cohabitation nor in dissolution of marriage and living separately for 20 years hence husband entitled to decree of divorce on ground of cruelty and desertion. - Though the proceedings as initially filed were for restitution of conjugal rights, the respondent has also sought divorce on the ground of mental cruelty arising out of the appellant’s conduct and behaviour as well as by the fact of desertion. In reply to the aforesaid pleadings, the appellant has denied that the respondent is entitled to claim divorce on aforesaid grounds. In her specific pleadings, the appellant has stated that she was being ill- treated by the respondent. It has been pleaded that the respondent and his mother used to beat the appellant, the respondent used to drive out the appellant from the house when it was raining. There was also a threat given by the respondent of throwing acid on the appellant. There are also pleadings regarding demand of dowry by the respondent. It is stated that the respondent had called the mother of the appellant and had demanded Rs. 4,000/-. It is thereafter pleaded that a demand of Rs. 4,000/- towards the expenses of delivery were also made to the appellant’s father.

       In so far as the aspect of ill-treatment of the appellant by the respondent is concerned except the bare statement of the appellant, there is no material on record to come to the conclusion that the appellant was, in fact, ill-treated by the respondent. Though it was alleged that the appellant was driven out of the matrimonial home and she was required to go out when it was raining, no neighbour has been examined to support aforesaid plea. In so far as the allegation that on 23.12.1993, the appellant was threatened and beaten in presence of panchas, the two witnesses examined by the appellant namely ’S’ (Exh. 84) and ’A’ (Exh. 85) do not refer to aforesaid threats or beating of the appellant in their deposition. Even the appellant’s father (Exh. 83) does not say anything in this regard. In fact, no suggestions are given to the respondent that on said date, he threatened or ill treated the appellant in presence of the Panchas. Therefore, there is no material on record to hold that the respondent had ill treated or beaten the appellant on 23.12.1993. The appellant’s father in his cross-examination has categorically admitted that he did not lodge any report regarding either demand of dowry or ill-treatment at the hands of the respondent. It may be noted that it was the case of the appellant that she had left the matrimonial home on account of the ill-treatment at the hands of the respondent.

       It is not in dispute that appellant did not agree to resume cohabitation even on trial basis and expressed that she would consider going to her husband’s house only after her son became major i.e. on or after 27.8.2011. She has left the matrimonial house behind her husband on 23.8.1993 and hence, burden was upon her to bring on record the justification therefor. Not only this, if she had any desire to resume matrimonial relation- ship, steps taken by her in that direction should have been pleaded and proved. Her readiness to cohabit pleaded in written statement is subject to the undertaking of husband and circumstances justifying that need are not proved by her. Effort to reunite alleged by her on 23.12.1993 does not substantiate any need of undertaking and that effort also is not brought on record with proper evidence. On the contrary, it militates with her other plea of demand of money and cruelty which again is not proved. Why she could not agree to temporary joint stay on trial basis or required time till her son attained 18 years of age even to think of returning to her matrimonial house or wanted an unreasonably long time to even consider its pros and cons is not clarified. She appears not interested in cohabitation sand also in dissolving the marriage, it is obvious that this is nothing but cruelty as also desertion. Even before the Family Court or then before this Court, she never expressed her design to revive the relationship. She is only opposing every move of her husband without any rhyme or reason. Marriage in question has lost its propriety and there is no point in continuing the relationship. It will, therefore, have to be held that the appellant having failed to assign any reasonable cause for desertion, the respondent is entitled for a decree of divorce on the ground of cruelty on account of said desertion.