Rajesh vs Sheela

R. Basant, J.—(i) In a claim for divorce u/s 13(ia)(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 u/s 23(1)(a) of the Act ?

(ii) How contumacious should the alleged wrong be to attract rejection u/s 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 u/s 23(1)(a) to justify the rejection of the claim for divorce u/s 13(ia) of the Act ?

These are the questions that arise for consideration in this appeal.

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 honeymoon 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.

There is a long history of litigation between the parties.M.C. No. 40/02 was filed by the wife claiming maintenance u/s 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. 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 rate of Rs. 5,000/- per mensem. There is no grievance that the said amount is not being paid promptly.

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 u/s 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 u/s 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 where under 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.

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 u/s 13(ia)(ii) of the Act also. In short, the 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 u/s 13(ia)(ii) of the Act. That petition for amendment was allowed on 24.11.05.

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.

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.

The court below came to the conclusion that the Appellant/husband was not entitled to claim divorce on both 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 u/s 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 u/s 13(ia)(ii) has been established. But it was held that the Appellant is disentitled to a decree u/s 13(ia)(ii) as the claim was barred u/s 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 Section 23(1)(a) of the Act and hence the Appellant was disentitled for a decree for divorce u/s 13(ia)(ii) of the Act.

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.

We shall straightaway take note of the fact that the claim for divorce on the ground of cruelty u/s 13(1)(ia) was rejected by the court below choosing not to accept and act upon the oral evidence of P.W. I 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 u/s 13(1)(ia) of the Act.

That takes us to the claim for divorce u/s 13(ia) 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, Section 13 of the Divorce Act read as follows:

Divorce.

(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) xxxxx xxxxx xxxxx

(ii) xxxxx xxxx xxxxx

(iii) xxxxx xxxxx xxxxx

(iv) xxxxx xxxxx xxxx

(vi) xxxxx xxxxx xxxxx

(vii) xxxxx xxxxx xxx

(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

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 Section 13(ia) found its way into the statute book. We extract Section 13(ia) 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

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 Section 13(ia) and the deletion of Clauses (viii) and (ix) of Section 13 ? First of all this has to be ascertained correctly before attempting to answer the three questions referred above. Prior to the amendment u/s 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 u/s 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 or 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 u/s 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 so every fault it be that led to non-compliance. It is in this context that Section 13(ia) was introduced into the statute book. We have extracted Section 13(ia) 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 u/s 13(ia). 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 or 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 and there has been no resumption of cohabitation within the prescribed period. The spouse claiming divorce u/s 13(ia)(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.

Any attempt to interpret the entitlement of a party to a decree for divorce u/s 13(ia) 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 Section 13(ia) after deleting Clauses (vii) and (ix) of Section 13(1) as it originally stood.

According to us, there can be no doubt-on what is required to be proved to entitle a party for a decree for divorce u/s 13(ia)(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).

It is very easy to understand from a plain reading of Section 13(ia) 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 u/s 13(ia)(ii). That is the legislative scheme undoubtedly.

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 Section 13(ia) after deletion of Clauses (viii) and (ix) of Section 13. All precedents only confirm the above understanding of the scope of Section 13(ia)(ii) of the Act.

The learned Counsel for the Respondent contends that establishment of this ground u/s 13(ia)(ii) is insufficient by itself to entitle a spouse to claim divorce u/s 13(ia). 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 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 Section 13(ia)(Xii) 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.

The learned Counsel for the Appellant relies on certain observations in precedents to indicate that really Section 13(ia) 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 Vs. S.S. Chopra, . 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 Section 13(ia).

......... We may also notice that 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 Section 13(ia) and Section 13B.

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 Smt. Saroj Rani Vs. Sudarshan Kumar Chadha, where also we find that their Lordships accepted that Section 13(ia) 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

From Ms Jorden Diengdeh Vs. S.S. Chopra, to Naveen Kohli Vs. Neelu Kohli, 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(ia)(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 u/s 13(ia)(ii). We have no hesitation to agree with Section 13(ia)(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 cohabitation 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 u/s 13(ia). Who is the decree holder or judgment debtor in the proceedings for restitution of 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 Section 13(ia)(ii) which was introduced by amendment.

A dispute has been raised as to whether Section 13(ia) is also guided by Section 23(1)(a) of the Act. There can be no controversy on that aspect now. It is well settled and trite now that Section 23(1)(a) controls and guides Section 13(ia) also.Notwithstanding the fact that the grounds for divorce u/s 13(ia) have been established, the Petitioner claiming a decree for divorce has further got to show that his claim for relief is not barred u/s 23(1)(a). The position is too well settled now to require reference to the precedents. The decision in Hirachand Srinivas Managaonkar Vs. Sunanda, removes the last trace of doubt if any, on this question. If a spouse claiming divorce u/s 13(ia) is found to be guilty of any wrong falling within the sweep of Section 23(1)(a), notwithstanding the establishment of the ground for divorce u/s 13(ia), such party shall not be entitled for divorce not because of the ground u/s 13(ia) has not been established but because relief would be barred u/s 23(1)(a) of the Act.

We may straightaway extract Section 23(1)(a) of the Act:

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) or 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.

Section 23(1)(a) guides and controls all proceedings under the Act except Cl.(a), (b) and (c) of Section 5(h). When Section 13(ia) was introduced no consequent amendment was introduced in Section 23. Therefore, Section 23(1)(a) indisputably controls and guides Section 13(ia) also. It is here that a proper understanding of the concept of "wrong" or "disability" u/s 23(1)(a) becomes crucial and vital. The concept of "wrong" u/s 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 impact in ascertaining what could be a "wrong" to disentitle a party to claim such relief u/s 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.

That takes us to the crucial question as to what can be reckoned as a wrong for the purpose of Section 23(1)(a) of the Act in a claim for divorce u/s 13(ia)(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 Vs. Usha Kumar, ; @INPARA = (2) Smt. Saroj Rani Vs. Sudarshan Kumar Chadha, ;

(3) T. Srinivasan Vs. T. Varalakshmi (Mrs), and

(4) Hirachand Srinivas Managaonkar Vs. Sunanda, .

Our attention has also been drawn to two decisions of the Division Benches of the Kerala High Court in K.M.K. Nair v. Radhakumari (1988 (1) KLT 461) and M. Ajith Kumar Vs. K. Jeeja alias Sanila, .

At the outset we must note that Section 13(ia) and Section 23(1)(a) have to be read, harmoniously. A ground recognized u/s 13(ia) cannot definitely operate as a wrong u/s 23(1)(a). If that be so, we will have to assume that what the Legislature has given with the right hand u/s 13(ia) is withdrawn and taken back by the left hand u/s 23(1)(a). The ground has to be established. One claiming the relief of divorce u/s 13(ia) should not be guilty of any such wrong as to disentitle him for the relief u/s 13(ia). Reading the two Sections harmoniously the conclusion is irresistible that a ground u/s 13(ia) cannot definitely operate as a wrong u/s 23(1)(a) to justify refusal of the relief u/s 13(ia). This principle emerges clearly from the language of Section 13(ia) considered in the background of the amendment by which Section 13(1)(viii) & (ix) were deleted and Section 13(ia) was introduced into the statute book.

We shall now consider the four decisions of the Supreme Court to which reference has been made above. In Dharmendra Kumar (supra) the wife had obtained a decree for restitution of conjugal rights. She did not take any steps for execution of the decree for restitution of conjugal rights. She applied for divorce u/s 13(ia). The husband pleaded that she had committed the wrong of not enforcing the decree for restitution of conjugal rights which wrong he contended was sufficient to justify rejection of the claim for divorce u/s 23(1)(a). The Supreme Court had occasion to consider the law on the point. The decision of Full Bench of the Delhi High Court in Gajna Devi v. Purshotam Giri AIR 1977 Del 178 was quoted with approval by their lordships. We extract below the observations-of the Full Bench of the High Court which found approval with the Supreme Court:

Section 23 existed in the statute book prior to the insertion of Section 13(ia)...Had Parliament intended that a party which is guilty of a matrimonial offence and against which a decree for judicial separation or restitution or conjugal rights had been passed, was in view of Section 23 of the Act, not entitled to obtain divorce then it would have inserted an exception to Section 13(ia) and with such exception, the provision of Section 13(ia) would practically become redundant as the guilty party could never reap benefit of obtaining divorce; while the innocent party was entitled to obtain it even under the statute as it was before the amendment. Section 23 of the Act, therefore cannot be construed so as to make the effect of amendment of the law by insertion of Section 13(ia) nugatory.

......the expression "Petitioner is not in any way taking advantage of his or her own wrong" occurring in Cl.(a) of Section 23(1) of the Act does not apply to taking advantage of the statutory right to obtain dissolution of marriage-which has been conferred on him by Section 13(ia)..... In such a case, a party is not taking advantage of his own wrong, but of the legal right following upon of the passing of the decree and the failure of the parties to comply with the decree.......

After extracting the above passage, their lordships of the Supreme Court went on to observe as follows:

In our opinion the law has been stated correctly in Ram Kali v. Gopal Das (supra) and Gajna Devi v. Purshotam Giri AIR 1977 Del. 178(supra).

Subsequently in the same paragraph 3 the Supreme Court has summarized the quintessence of the law as to how Section 13(ia) has to be harmonized with Section 23(1)(a). The conclusion of the two Judges Bench of the Supreme Court appears in the following words in paragraph 3:

Therefore, it would not be very reasonable to think that the relief which is available to the spouse against whom a decree for restitution has been passed should be denied to the one who does not insist on compliance with the decree passed in his or her favour. In order to be "wrong" within the meaning of Section 23(1)(a), the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled.

Emphasis supplied

We reckon that as the binding statement of law. The wrong put forward u/s 23(1)(a) must be "serious enough" to justify the denial of the relief to the petitioning spouse.

Later, in Saroj Rani v. Sudarshan Kumar AIR 1984 SC 156 the Supreme Court had occasion to consider this principle in Dharmendra Kumar (supra). That was a case where a consent decree for restitution of conjugal rights was passed in favour of the wife. That decree was not complied with. Of course, there was a dispute as to whether it had actually been complied with or not. The Court held that it has not been complied with. The husband applied for divorce u/s 13(ia). The decree was granted in his favour. A contention was raised that the husband was guilty of a wrong u/s 23(1)(a) which would justify denial of the relief u/s 13(ia). It was alleged before the superior Courts that the husband had suffered the decree for restitution fraudulently. It was further contended that he was guilty of not complying with the decree for restitution even though his wife was willing to comply with the same.

The two Judges Bench of the Supreme Court considered the question and the crucial observations are available in paragraph 10 which we extract below:

Counsel for the Appellant sought to urge that the expression "taking advantage of his or her own wrong" in Clause (a) of Sub-section (1) of Section 23 must be construed in such a manner as would not make the Indian wives suffer at the hands of cunning and dishonest husbands. Firstly even if there is any scope for accepting this broad argument, it has no factual application to this case and secondly if that is so then it requires a legislation to that effect. We are therefore unable to accept the contention of counsel for the Appellant that the conduct of the husband sought to be urged against him could possibly come within the expression "his own wrong" in Section 23(1)(a) of the Act so as to disentitle him to a decree for divorce to which he is otherwise entitled to as held by the Courts below. 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

It is true that on facts in that case the contention was not properly raised that the decree for restitution of conjugal rights was fraudulently obtained. The Court did not reckon that as a relevant ground because factual foundation was not made to justify that plea. What is more important is the observation extracted above that "secondly if that is so then it requires a legislation to that effect". The fact that the Supreme Court did not go into the first ground raised is irrelevant because the Supreme Court had held that if such a contention were to be accepted, then it requires a legislation to that effect. In the nature of the legislation that is presently available - in the wake of the language in Section 13(ia), the ground which is recognized as a ground for divorce cannot obviously operate, as a wrong u/s 23(1)(a). The fact that the factual circumstances were looked into by the Supreme Court while considering the first contention does not militate against the dictum laid down by the Supreme Court when it proceeded to consider the second ground and stated that the said contention even if true would require a legislation to that effect if it were to be accepted. We are unable to understand anything in Saroj Rani (supra) that is opposed to the quintessence of law stated by the Supreme Court in paragraph-3 of Dharmendra Kumar (supra) which we have already extracted.

Our attention has been drawn to the third decision referred above which is by a three Judge Bench of the Supreme Court. It is crucial to note that the said decision T. Srinivasan Vs. T. Varalakshmi (Mrs), does not specifically refer to the earlier decisions in Dharmendra Kumar (supra) or Saroj Rani (supra). The relevant observations appear in paragraph-1 of that short decision which we extract below:

The finding recorded by the Courts below is that the husband obtained a decree for restitution of conjugal rights not to act in obedience thereof but, on the other hand, to keep the wife deprived of her right to perform her conjugal duties. The wife made a demand of the husband to let her join him but he refused to allow her enter the house, rather he drove her away as also her relatives, whoever attempted to rehabilitate the wife. These acts of the husband were positive wrongs amounting to "misconduct", uncondonable for the purposes of Section 23(1) of the Hindu Marriage Act, 1955. Hence, he was rightly denied relief u/s 13(1-A) of the said Act. The appeals, therefore, fail and are hereby dismissed.

Emphasis supplied

That decision is rendered by a three Judge Bench. It accepts the proposition that Section 13(ia) is controlled by Section 23(1)(a) of the Act. It does not detract anything'' against the Dharmendra Kumar (supra) and Saroj Rani (supra). A fair reading of the said very short judgment only shows that applying the dictum in Dhannendra Kumar (supra) and Saroj Rani (supra), the three Judge Bench of the Supreme Court reckoned the conduct of the husband (who obtained a decree for restitution of conjugal rights, whose wife had made a demand after the decree for restitution of conjugal rights to join him, who refused to allow her to enter the house and who rather drove her away as also her relatives whoever attempted to rehabilitate the wife) was a wrong, serious and grave enough u/s 23(1)(a) to justify the withholding of the relief u/s 13(ia). We are unable to agree that Srinivasan (supra) lays down any proposition of law different or distinct from what has already been laid down in Dhannendra Kumar (supra) and Saroj Rani (supra). The dictum obviously (though not stated in so many words) was applied to the facts of the case in Srinivasan (supra) and it was held that the same amounts to a wrong falling within the sweep of Section 23(1)(a) of the Act. It would be puerile to assume that without reference to Dharmendra Kumar and Saroj Rani (supra), the Supreme Court impliedly overruled the dictum therein. No law binding under Article 141 is declared in Srinivasan (supra) except that Section 23(1)(a) controls even a claim u/s 13(ia).

The learned Counsel for the Respondent places heavy reliance on the decision of the Supreme Court in Hirachand Srinivas Managaonkar Vs. Sunanda, . In that case the wife had obtained an order of judicial separation on the ground of adultery. The spouses were residing separately after the order of judicial separation was passed. There was a direction for payment of alimony. The husband did not pay the amount. He continued his adulterous relationship. As a dutiful husband he did not attempt to resume cohabitation in spite of the decree for judicial separation. After the lapse of the stipulated period u/s 13(ia), he came to Court with a petition for dissolution of marriage u/s 13(ia). The Supreme Court took the view that in not paying alimony to his wife and child, in continuing the adulterous relationship and in not attempting to resume cohabitation in spite of the decree for judicial separation, the husband can be held to have'' committed a wrong within the sweep of Section 23(1)(a). The Supreme Court had referred to the decision in Dharmendra Kumar (supra), though we note that the decision in Saroj Rani (supra) has not been specifically referred to. This decision is also rendered by a-two Judge Bench of the Supreme Court.''

It is interesting to note that the dictum in Dharmendra Kumar (supra) the relevant paragraph-3 of which we have already extracted has not been altered or modified by the Supreme Court in Hirachand (supra). The opening passage of the decision shows that the point that arose for determination though short and not simple is whether relief u/s 13(ia) can be refused to the husband ''on the ground that he has failed to pay maintenance to his wife and daughter despite an order of the Court". The facts of that case were peculiar. The husband had suffered an order of judicial separation on the ground of adultery. He continued his adulterous life. In spite of an order of the Court to pay alimony, he did not pay alimony to his wife and child. He did not as a dutiful husband attempt to resume cohabitation. Cumulatively, these were reckoned by Court as a wrong serious enough to fall within the sweep of Section 23(1)(a) as to disentitle the Petitioner spouse for the relief of divorce. The Supreme Court had further observed that the mere establishment of the ground for divorce u/s 13(ia) cannot ipso facto lead to grant of a decree for divorce u/s 13(ia) of the Act. The learned Counsel for the Appellant argues that even after establishment of the ground u/s 13(ia), a discretion is vested with the Court as to whether the relief for divorce u/s 13(ia) can be granted or not. We are afraid that the Supreme Court has not held so. The Supreme Court had only held that after establishment of the ground u/s 13(ia) it must further be shown that the grant of a relief is not barred u/s 23(1)(a). Even after coming to the conclusion that the ground u/s 13(ia) has been established satisfactorily, the Courts are obliged to consider whether the claim for relief is barred u/s 23(1)(a). As to what would constitute a wrong, no straight jacket formula can be prescribed. The totality of inputs have to be taken into account to decide whether a conduct of the petitioning spouse which is relied on by the spouse defending the claim for divorce, can be reckoned as wrong for the purpose of Section 23(1)(a). That and that alone is, according to us, the dictum in Hirachand (supra).

We find no merit in the contention that sans or de hors Section 23(1)(a) the Court has a discretion to grant relief or not under S. 23(1)(a). We repeat that the ground u/s 13(ia) must be established. Once that is established the Court has to proceed to consider whether the claim for the relief for divorce is barred u/s 23(1)(a). As to what would constitute a wrong, no straight jacket formula can be prescribed. The totality of inputs will have to be considered. At any rate, the mere fact that a spouse who has suffered an order of restitution of conjugal rights had not shown inclination earnestness to resume cohabitation cannot be reckoned as a wrong u/s 23(1)(a). Something more serious and more grave must established to justify there Section of the claim for divorce by invoking the concept of wrong u/s 23(1)(a).

The learned senior counsel Sri. V. Chitambaresh has strenuously contended that the non-compliance of a decree for restitution of conjugal rights suffered by the petitioning spouse on account of his own disinclination must be reckoned as a wrong sufficient u/s 23(1)(a). We need only repeat that to take such a view, as stated by the Supreme Court in Saroj Rani (supra), the legislation will have to-be re-drafted. The spouse who has secured the decree for restitution of conjugal rights as also the spouse who has suffered such decree for restitution of conjugal rights are both entitled to petition, the Court u/s 13(ia) of the Act and the ground recognized u/s 13(ia) can never be a wrong u/s 23(1)(a).

Reliance is placed on the two decisions of the Division Benches in K.M.K. Nair v. Radhakumari 1988 (1) KLT 461 and M. Ajith Kumar Vs. K. Jeeja alias Sanila, . In Radhakumari (supra), the Division Bench had occasion specifically to consider the possibility of a spouse violating the decree for restitution of conjugal rights himself claiming relief u/s 13(ia). In paragraph 11 the Division Bench proceeded to observe as follows:

The Supreme Court in Saroj Rain's case pointed out that if such a conduct of the husband is intended to be treated as wrong, then it requires a legislation to that effect. We cannot rule out the possibility of a party obtaining a decree for restitution of conjugal rights and not enforcing the same with the sole purpose of getting a divorce after the lapse of statutory period, but such an abuse can be prevented only by bringing necessary legislation plugging this device and it is certainly a matter which requires serious consideration of the Parliament. But as law stands now, we are helpless in the matter and can only grant relief as one naturally flowing-from the fact that there was no restitution of conjugal rights for a period of more than one year after passing of the decree, if there is no acceptable evidence to show that there was restitution within the statutory period ?

We readily agree with the learned Judges on the statement of the law. But we do not agree that the Courts grant the decree in such a situation "helplessly". The Courts must appreciate the change in law with the introduction or, Section 13(ia). De-jure burial of de facto dead marriages is the legislative motivation underlying Section 13(ia) as we have understood ascertained earlier. At least in the present era considering the long journey from Jorden to Naveen Kohli (supra), the Courts must perform that statutory duty without reluctance and without any feeling of helplessness.

In Ajith Kumar (supra), it was a case where notwithstanding the finding entered into by the Family Court that the ground u/s 13(ia) has been established, the claim for divorce was rejected on the ground that the husband was guilty of a wrong u/s 23(1)(a). The Division Bench did not accept the rejection of the claim. The Court directed that the matter must be considered by the Family Court afresh. The case was remanded with a direction to the Family Court to consider whether the petitioning spouse u/s 13(ia) (the husband) was guilty of any such wrong which would fall within the sweep of Section 23(1)(a) to justify the rejection of the claim for divorce. The Family Court had not considered that aspect pointedly and the direction to the Family Court was to consider the same specifically. According to us, Ajith Kumar (supra) does not lay down the proposition that the mere omission/failure/disinclination of the petitioning spouse to comply with the decree for restitution is ipso facto a wrong falling within the sweep of Section 23(1)(a). To hold so would be to go directly against the dictum in Dharmendra Kumar (supra). Despite the able persuasive efforts of Shri. Chitambaresh the learned senior counsel for the Respondent relying on the observations in paragraph-9 of the Ajith Kumar (supra), we are unable to agree that the mere non-compliance of a decree for restitution is sufficient to deny relief to the claimant spouse.

The counsel, relying on the observations in paragraph-9 of Ajith Kumar (supra) attempts to advance a contention that in every case where there is non-compliance with the decree for restitution of conjugal rights, either of the spouses must certainly be guilty of a wrong u/s 23(1)(a). It has been held so in paragraphic of the Ajith Kumar (supra), contends the counsel. We are unable to agree. To hold so would be to re-draft Section 13(ia) and to go against the principles laid down in Dharmendra Kumar (supra). Mere non-compliance or mere refusal/failure to comply with the decree for restitution of conjugal rights, we repeat, cannot be held to be a wrong u/s 23(1)(a).

We shall now come back to the question whether the Appellant in this case can be held to be guilty of any wrong u/s 23(1)(a) to justify denial of the relief of divorce to him u/s 13(ia). That there has been a decree for restitution of conjugal rights is admitted. That the decree for restitution of conjugal rights had not been complied with within the period of one year is also not disputed. In the view which we have already taken the mere non-compliance can certainly not be held to be a sufficient wrong u/s 23(1)(a).

The only other contention which is very strenuously urged is that the Respondent had agreed to the Court passing a decree for restitution of conjugal rights. That decree was conceded without any bona fides. That decree was fraudulently secured from the Court solely for the purpose of making an eventual ground available to the husband u/s 13(ia). The learned Counsel argues that the hands of the Appellant are not clean in that he had agreed to the passing of the decree which he had no intention to comply at all. This must at least be reckoned as a sufficient wrong u/s 23(1)(a), argues the learned Counsel.

We are unable to accept this contention. In Saroj Rani (supra) the situation was almost identical. That was also a case where the husband had consented to a decree for restitution of conjugal rights. In the instant case, it is true that the husband had consented to the passing of a decree for restitution of conjugal rights. It will be apposite in this context to refer to the language of the counter statement by which the passing of a decree for restitution was conceded.

When the application for restitution of conjugal rights was filed the O.P. for divorce was pending. There was no harmonious reconciliation even admittedly. The husband had only agreed to the suffering of a decree for restitution of conjugal rights. There was no agreement to commence harmonious marital life. The relevant passage in paragraph-11 of the counter statement, the certified copy of which has been made available to us, reads as follows:

Even though Petitioner (i.e. the wife) is not entitled to a relief of restitution of conjugal rights and no grounds are also made out in the petition for the same, still this Respondent (the husband) has no objection in allowing the prayer (without prejudice to get divorce from her as prayed in O.P. No. 62/2002) for the sake of putting an end to litigation and marital status as early as possible.

The Appellant/husband admitted categorically when he was examined as P.W.I that there was no intention to reconcile when he agreed to the passing of a decree for restitution conjugal rights. In fact, when the Appellant claimed the relief of divorce u/s 13(ia) of the Act by amendment, the following is the pleadings raised in paragraph 4A of the petition:

4A. During the pendency of this divorce petition, the Respondent filed an application for restitution of conjugal rights as M.O.P. 108/2002 on the file of this Court against the Petitioner and the same was ordered on 10/11/2003. Even though more than one year has elapsed after the order, as not fructified nor has the Respondent taken any steps to further the object of the order all these days; if at all she was sincere and earnest she would have taken steps. Now the order remains in paper only. The petition was just a counter blast and it was not filed with a view to come and joint the Petitioner. It was really an eye wash to make it appear that the Respondent wanted the company of the Petitioner, which was not true or genuine. That was why the petition was not contested. The Respondent did not take any steps also in pursuance to that order. In such circumstances the petition is enjoined under law to advance that also as a ground to obtain divorce against the Respondent, which is a subsequent event pending these proceedings.

extracted as in the petition

It is true that a decree for restitution of conjugal rights was conceded. But the concession was not in derogation of the claim for divorce. It is crystal clear that there was no understanding, compromise or settlement between the parties and they had never agreed to live together in pursuance of a decree for restitution of conjugal rights which was sought and conceded in O.P. No. 108/02. Deceit, suppression or fraud are not vices that we can discover or invent from the pleadings raised by the Appellant in the counter statement filed by him conceding the claim for restitution of conjugal rights. He agreed to suffer a decree but he did not agree to reconcile and resume harmonious cohabitation. The suffering of a decree for restitution of conjugal rights may bring with it consequences. The decree can be sought to be executed and he can be proceeded against. His property can be proceeded against. He consciously agreed to suffer the decree and its consequences only. Suffering of a decree for restitution of conjugal right delivers certain advantages in accordance with law after Section 13(ia) was introduced in the statute book. In the nature of the pleadings which we extracted above it is very evident that the Appellant had agreed to and conceded the passing of decree for restitution of conjugal rights knowing fully the beneficial and the disadvantageous consequences which such a decree may bring forth against him. We are unable to agree that such conduct of suffering of decree by itself is sufficient to justify the conclusion that a wrong falling within the sweep of Section 23(1)(a) has been committed by the Appellant to warrant rejection of his claim for divorce.

It will not be inapposite in this context to note that the decree was not sought to be executed for a period of one year from the date of the decree. It is contended that subsequently in 2006 there was an attempt to execute the decree and that attempt has failed. But the attempts made subsequent to the elapse of the period of one year which gave to the Appellant a right to move the Court for divorce is irrelevant while considering whether wrong has been committed as contemplated by Section 23(1)(a).

The learned Counsel for the Appellant submits with the help of a copy of the order in M.C. No. 40/02 that the husband in this case was guilty of matrimonial cruelty. The counsel argues that this must be read along with his conduct of conceding a decree for restitution of conjugal rights and showing no inclination to get the said decree for restitution of conjugal rights enforced/complied. The learned Counsel argues that as a dutiful husband the Appellant has the burden to ensure that cohabitation is resumed. The counsel, in this context, relies on the observations in M.C. No. 40/02 which is an ex parte order that the husband has been guilty of matrimonial cruelty and ill- treatment.

We have been taken through the order in M.C. No. 40/02. There was no offer by the Appellant to resume cohabitation on the ground that the wife lives with him. Under the scheme of Section 125 Code of Criminal Procedure the question of matrimonial cruelty would arise only when there is such an offer made by the husband. It was an ex parte order. In law the question whether there was matrimonial cruelty did not arise for consideration at all. A contention that the husband is willing to maintain the wife on condition that she lives with him was not raised. According to her, she was always willing to reside with him. The wife had not refused to live with him on the ground that he was guilty of matrimonial cruelty. In these circumstance, the contention urged with the help of the order in M.C. No. 40/02 that in, addition to the husband suffering a decree for restitution of conjugal rights without any intention to comply with the same and his conduct of not complying with the same, the matrimonial cruelty must be read together to conclude that he is guilty of a wrong u/s 23(1)(a) cannot also be accepted.

We are, in these circumstances, satisfied that the ground u/s 13(ia) having been established without dispute, there is no valid reason to justify the rejection of the claim by invoking Section 23(1)(a). In conceding a decree for restitution of conjugal rights in O.P. No. 108/02 with the pleadings extracted above and subsequently in not showing keenness to get the decree complied with, the Appellant husband cannot be said to have committed any wrong u/s 23(1)(a). In fact, the fact that the holder of the decree did not take any steps to execute the decree is again a circumstance in favour of the Appellant and certainty not against him while considering his alleged contumacious role in the decree for restitution not being executed.

We do, in these circumstances, come to the conclusion and reiterate that the mere non-compliance of a decree for restitution of conjugal rights by a spouse who has suffered a decree cannot be reckoned as a sufficient ground u/s 23(1)(a) in an application for divorce filed by such spouse u/s 13(ia). We further hold on facts that the suffering of Ext. A 1 decree on the basis of the concession in the words extracted above cannot also be reckoned as a sufficient wrong on the part of the husband to justify denial of relief u/s 13(ia) of the Act to him. In order to be reckoned as a wrong u/s 23(1)(a) in a claim for divorce u/s 13(ia) the alleged wrong must be sufficiently grave and serious. It must reveal contumacious ness of the grave and serious variety The mere suffering of a conceded decree for restitution of conjugal rights without contest and mere noncompliance of such decree cannot be reckoned as wrong justifying the refusal of relief u/s 13(ia). The questions posed in paragraph-1 are answered thus.

The learned Counsel for the Respondent has raised several other contentions also. We shall briefly refer to those contentions. The learned Counsel first of all, points out that the amendment incorporating the claim for divorce u/s 13(ia) by I.A. No. 55 8/04 was filed on 14.2.04 and the same was allowed on 24.11.05. Relying on Sampath Kumar Vs. Ayyakannu and Another, the learned Counsel argues that once an amendment is incorporated under 0.6 Rule 17 Code of CPC the same must relate back to the date of the suit and when such doctrine of relation-back applies, the amendment takes effect from the date of the petition i.e., 22.4.02. On that date the assertion brought in by the amendment was factually incorrect and non existent. On the date of the application -22.4.02 this ground was not available. The counsel further contends that an "application" u/s 13(ia) has to be "presented." According to the counsel, the requirement of presentation mandates that the allegations must be raised in the petition as originally presented and it cannot be brought in by amendment.

The learned Counsel thirdly contends that the right to claim divorce u/s 13(ia) can arise only after elapse of a period of one year from the date of the decree for restitution and any application filed earlier would be premature the ground being non- existent on the relevant date of presentation of the application. The learned Counsel for the Appellant places reliance on the decision of a Full Bench of this Court in Hameed v. Ittoop 1970 KLT 501.

We have rendered our very anxious consideration to these contentions. We are unable to accept these three contentions. Paragraph 10 of the decision in Sampath Kumar (supra) relied on by the learned Counsel, itself shows that the doctrine of relation-back in the context of amendment of pleadings is not one of universal application. Here is a case where it is known to every one that on the date when the petition was filed the ground was non-existent. The ground for divorce came into existence during the pendency of the proceedings. On the basis of the subsequent development during the pendency of the proceedings, divorce on the additional ground u/s 13(ia) was claimed. The doctrine of relation-back can have no application whatsoever in these circumstances. When a subsequent development is brought to the notice of the Court by amendment, it would certainly be puerile to contend that the ground did not exist on the date of the original petition and hence relief cannot be granted on that ground.

The second argument that the petition has to be presented on the ground u/s 13(ia) and the ground cannot be included subsequently by amendment in a petition already filed is an argument against the very concept of amendment of petition to incorporate a fresh or omitted, ground. One cannot lose sight of the fact that it is a matrimonial litigation. It is in the interests of all concerned that all relevant contentions must be raised and decided in a pending proceeding. Authority is legion for the proposition that a subsequent relevant ground can be raised in a pending proceeding to help the Court to mould the relief. More so, in matrimonial litigation where multiplicity of proceedings must be zealously avoided by all concerned in the interests of the spouses/contestants. It is to be noted that the requirement of presentation of a petition appears even in Section 13(1) in identical language. As in Section 13(1), the relief u/s 13(ia) can also be claimed only on a petition presented by either spouse. This is not to say that a ground which was omitted to be raised earlier or a ground which has come into existence later cannot be incorporated by amendment of a petition either u/s 13(1) or u/s 13(ia) of the Act.

Reliance on the Full Bench decision in Hameed does not appeal to us. That decision was rendered in the context of a specific Proviso barring an application for eviction by a landlord before elapse of a period of one year after he becomes entitled for his right to recover possession. The purpose of the said Proviso is obvious. Transfer inter vivos merely to facilitate a claim for eviction should not be entertained. To frown upon such transfer inter vivos merely to facilitate a claim for recovery, a lock in period of one year is specified. The purpose of the said Proviso in the context in which it appears in the Kerala Buildings (Lease and Rent Control) Act is totally different from the stipulation of the period of one year after securing a decree for restitution of conjugal rights u/s 13(ia)(ii) of the Act. Moreover it is conceded that on the date when the amendment was sought to include the claim u/s 13(ia), the ground did admittedly exist. Hameed was not a case wherein a validly instituted petition, a subsequent development was sought to be brought to the notice of the Court and a relief to which the claimant was entitled in'' law on the date of the amendment was claimed by amendment. In Hameed the very petition was not maintainable on the date of presentation and the subsequent curing of the defect by elapse of time did not save the petition. That is all that was held in Hameed. We are unable to accept that the dictum in Haineed can in any way justify the non- entertainment of the claim for divorce u/s 13(ia) by amendment of the pleadings during the pendency of a petition for divorce..

No other contentions are raised. We are satisfied that the Court below was obviously in error in coming to the conclusion that the husband is guilty of a wrong u/s 23(1)(a) as to justify, the withholding of the decree of divorce u/s 13(ia)(ii).

In the result:

(a) This appeal is allowed.

(b) The impugned order is set aside.

(c) It is held that the husband/Appellant is entitled for a decree for divorce u/s 13(ia)(ii) of the Act and that his claim for such relief is not barred u/s 23(1)(a) of the Act.

(d) The marriage between the Appellant and the Respondent solemnized on 26.1.2000 shall hence stand dissolved u/s 13(ia)(ii) of the Act.

The learned Counsel for the Respondent wants it to be specified that right to receive maintenance shall continue. The learned Counsel for the Appellant does not dispute that liability and asserts that maintenance which is liable to be paid as per the order in M.C. No. 40/02 as maybe modified from time to time shall be paid by the Appellant without demur.