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PUNJAB & HARYANA HIGH COURT
O.Chinnappa Reddy, Bhopinder Singh Dhillon and Harbans Lal JJ.
Bimla Devi D/o Bakhtawar Singh
Versus
Singh Raj S/o Dasondhi Ram
First Appeal First Order No. 109 of 1973,
Decided On : DECEMBER 17, 1976
HINDU MARRIAGE ACT - SECTION 13 (1-A) - DIVORCE - GROUNDS - NON-RESUMPTION OF COHABITATION OR NON-RESTITUTION OF CONJUGAL RIGHTS - WRONG OR DISABILITY - SECTION 23 (1) (A) - APPLICABILITY.
Fact of the Case:
The appellant-wife filed a petition under S. 13 (1A) of the Hindu Marriage Act, 1955, claiming a decree for divorce on the ground that the respondent-husband had failed to comply with a decree for restitution of conjugal rights passed against him. The petition was dismissed by the learned Additional District Judge, Ambala, on the ground that the wife was taking advantage of her own wrong in not living in the company of the husband and thus in view of the provisions of S. 23 of the Act, she was not entitled to the relief of decree of divorce claimed by her.
Finding of the Court:
The Court held that the provisions of S. 23 (1) (a) of the Act cannot be invoked to refuse the relief under S. 13(1-A) (ii) of the Act on the ground of non-compliance of a decree of restitution of conjugal rights where 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 decree for restitution of conjugal rights in proceedings in which they were parties.
Issues: Whether the provisions of S. 23 (1) (a) of the Hindu Marriage Act, 1955 can be invoked to refuse the relief under S. 13(1-A) (ii) of the Act on the ground of non-compliance of a decree of restitution of conjugal rights where 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 decree for restitution of conjugal rights in proceedings in which they were parties.
Ratio Decidendi: The Court held that the provisions of S. 23 (1) (a) of the Act cannot be invoked to refuse the relief under S. 13(1-A) (ii) of the Act on the ground of non-compliance of a decree of restitution of conjugal rights where 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 decree for restitution of conjugal rights in proceedings in which they were parties. The Court observed that the legislature liberalised the grounds for divorce by amending S. 13 at various stages. By enacting S. 13 (1-A), right has been given to both the parties to the marriage to claim dissolution of marriage by a decree of divorce on the grounds given therein. Before the amendment, only a party who moved petition for judicial separation or for restitution of conjugal rights could move for dissolution of the marriage. The legislature has made this change and has given right to both the parties, even though decree for restitution of conjugal rights or for dissolution of marriage has been obtained by either of the parties. The Court further observed that the provisions of S. 23 (1) (a) of the Act cannot be invoked to refuse the relief under S. 13(1-A) (ii) of the Act on the ground of non-compliance of a decree of restitution of conjugal rights where 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 decree for restitution of conjugal rights in proceedings in which they were parties. The Court held that the said provisions cannot be invoked on the ground of non-compliance with the decree passed so as to hold that the said act of non-compliance is in any way taking advantage of his or her own wrong.
Final Decision: The appeal was allowed and the appellant was granted a decree of divorce.
BHOPINDER SINGH DHILLON, J.
1. This F.A.O. was admitted to a Full Bench by the Motion Bench as the correctness of the judgment of a Division Bench in Chaman Lal V/s. Mohinder Devi, 1971 0 PunjLR 104 was being questioned. This is how this appeal has been laid before us.
2. The necessary facts giving rise to this appeal may thus be stated:
Singh Raj respondent was married to Smt. Bimla Devi at village Bhareri Khurd, Tehsil Naraingarh, District Ambala, on 8th November, 1968. After the marriage, the wife stayed with her husband only for one day in village Surakhpur, Tehsil Thanesar, District Karnal, and then returned to her parents house. According to the wife-appellant, the marriage was solemnised between her and the respondent on account of the fraud practised by the respondent and his father on her parents. The appellant filed a petition under S. 12 of the Hindu Marriage Act, 1955 , (hereinafter called the Act) on 3rd June, 1969, which was dismissed by the learned District Judge, Ambala, on 2nd May, 1970. Singh Raj respondent filed a petition for restitution of conjugal rights on the ground that the wife withdrew from his society without reasonable cause. In reply, the wife took the stand that the marriage was got solemnised by practising fraud and as such the husband was not entitled to a decree for restitution of conjugal rights. This application was allowed by the learned Additional District Judge, Karnal, vide order dated 12th of November. 1970. Aggrieved against both the orders, the appellant-wife then filed two appeals challenging the orders of the Courts below. Both the appeals were dismissed by this Court on 25th of October, 1972. On 21st December, 1972, the appellant-wife filed a petition under S. 13 (1A) of the Act claiming a decree for divorce. The said petition was dismissed by the learned Additional District Judge, Ambala, vide order dated 30th August, 1973. This order has been assailed in this appeal. The learned Judge came to the conclusion that the wife wanted to lake advantage of her own wrong in not living in the company of the husband and thus in view of the provisions of S. 23 of the Act, she was not entitled to the relief of decree of divorce claimed by her.
3. In order to decide this case, reference may be made to the relevant provisions of the Act. Section 5 of the Act provides that a marriage may be solemnized between any two Hindus, if the conditions mentioned therein are fulfilled Section 9 is in the following terms:-
"9 (1) When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district Court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
(2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce."
Under S. 10 of the Act, either party to a marriage, whether solemnized before or after the commencement of the Act car present a petition to the District Court praying for a decree of judicial separation on the grounds mentioned therein. Section 11 provides for declaring a marriage null and void by a decree of nullity, if it contravenes any of the conditions specified in Cls. (i), (iv) and (v) of S. 5. Section 12 deals with voidable marriages. Section 13, before it was amended by Amending Act No. 44 of 1964, was as follows:-
"13 (1) Any marriage solemnized whether before or after the 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) is living in adultery; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsoun
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