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Judgment
Sethi, J.—A matrimonial dispute between the parties to this litigation legally started in the year 1970 when the husband-respondent filed a
petition under Sections 10 and 13 of the Hindu Marriage Act for getting a decree of divorce or in the alternative a decree for judicial separation on
the alleged ground of cruelty of the wife appellant.
The facts leading to the filing of the present appeal are that the parties were married on 16-2-1964, a female child was born to the parties in the
year 1965 who died after 6/7 months, second female child was born in November, 1970 who is alive and was living with the wife-appellant. The
husband alleged that the treatment of his wife towards him had been very disrespectful and abusive. The behaviour of the wife towards the husband
had been extremely bad who had always ill-treated him. The wife had been treating the husband with such cruelty that he had reasonable
apprehension in his mind that it would be harmful and injurious for him to live with her. In para 10 of the petition the husband alleged that he has not
in any manner condoned the cruelty of the respondent. The wife resisted the grant of decree of divorce or judicial separation on the grounds that
she was not guilty of the alleged cruelty. She had been living with her husband in the house of her father-in-law. It was only about three months
from the date of filing of her objections on 24-3-1971 that she came to her parents in connection with the delivery of the child whereafter the
petitioner-husband never came to take her back to his house. She was prepared to go and live with the husband. The petitioner-husband had filed
the application with the ulterior motive of his remarriage somewhere else. Para 10 of the petition was specifically denied and it was stated that there
was no truth in the allegations of the cruelty or bad treatment by the wife, therefore there was no question of condonation of cruelty.
On the pleadings of the parties the following issue was framed :
Whether the respondent has been treating the petitioner with such a cruelty that her stay with him is either dangerous to his life or injurious to his
health.
After recording the evidence of the parties the trial Court passed a decree for judicial separation in terms of Section 10 of the J & K Hindu
Marriage Act (old) hereinafter called ""the Act"". The wife filed civil first Misc. Appeal No. 6 of 1973 before this Court which was dismissed on 12-
1-1978 (reported in AIR 1979 J&K 4) whereafter the wife filed the present Letters Patent Appeal. The respondent submitted that L.P.A. No. 7
of 1978 : (reported in AIR 1981 J&K 70) was not competent in view of the judgment of this Court in Satya Jyoti v. Major R. D. Jyoti L.P.A. No.
3 of 1978 decided on 14-3-1979. Two questions were formulated by the Division Bench and referred to the Full Bench for their opinion. The Full
Bench of this Court by a majority judgment vide its judgment dt/- 18-11-1980 has held that the appeal was maintainable and directed that the
record of the case be sent to the Division Bench for the decision on other points raised in the appeal.
We have heard the learned counsel for the parties and have perused the relevant record.
Mr. Parihar, the learned counsel , appearing for the appellant-wife has submitted that the judgment of the Hon'ble single Judge and that of the
trial Judge is liable to be set aside because the same suffers from material legal infirmity inasmuch as both the Courts have ignored the statutory
provisions as contained in Section 23 of the Hindu Marriage Act which prohibits the passing of any decree unless the requirements of that section
were complied with. Elaborating his argument he has submitted that as in the instant case the husband was claiming relief on the ground of alleged
cruelty, he was under an obligation to prove and satisfy the Court that the said cruelty had not in any way been condoned by him.
6-A. Mr. Nanda, the learned counsel appearing for the respondent-husband has however stated that as the finding regarding cruelty is a finding of
fact and stands concurrently concluded by two judgments, the same cannot be disturbed in this appeal.
For properly appreciating the submissions of the learned counsel of the appellant it has to be kept in mind that a Hindu Marriage from its
inception was considered to be Sanskar based upon Karma and was irrevocable. The women folk in general and the Hindu woman in particular in
this country had all along been treated as Chattels. In order to protect the rights of this weaker section of the society and forced by socio-political
upheavels in the world generally and in the country particularly the State was forced to enact, amend, modify and codify the law relating to
marriages amongst Hindus, the Central Hindu Marriage Act was passed which regulated the marriage of Hindus, which conferred certain rights and
imposed certain obligations upon the parties to the marriage. Keeping in view the peculiar socio-political economic system in this country, provision
was made that no party to the marriage is allowed to take the advantage of his or her own wrong and defeat the very concept of the Hindu
Marriage which was initially a Sanskar based upon Karma. Section 23 of the Act provides that if the Court was satisfied that any of the grounds
for granting relief existed and the petitioner was not in any way taking advantage of his or her own wrong or disability for the purposes of that relief
and where the ground of the petition was a ground specified in Clause (f) of Sub-section (1) of Section 10 or Clause (i) of Sub-section (1) of
Section 13, the petitioner had not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground
of the petition was cruelty, the petitioner had not in any manner condoned the alleged cruelty, the petition was not presented or prosecuted in
collusion with the respondent, there had not been any unnecessary or improper delay in instituting the proceedings and that there was no other legal
ground for refusing to grant the relief, then and then alone the Court could pass a decree for the relief sought by the petitioner. Section 23 of the
Act is reproduced as under :--
Decree in proceedings :-- (1) In any proceedings 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 is not in any way taking advantage of his or her own wrong or disability for the
purpose of such relief, and
(b) where the ground of the petition is the ground specified in Clause (1) of Sub-section (1) of Section 10, or in Clause (i) of Sub-section (1) of
Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground
of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and
(c) the petition is not presented or prosecuted in collusion with the respondent, and
(d) there has not been any unnecessary or improper delay in instituting the proceedings, and
(e) there is no other legal ground why relief should not be granted, then and in such a case, but not otherwise, the Court shall decree such relief
accordingly.
This section casts a duty upon the Court before whom the proceedings under the Act are pending to satisfy itself that none of the conditions of
Section 23(1) Clauses (a, b, c, d and e) existed before granting any decree. The Court is not absolved of this duty even in proceedings which are
taken ex parte. The principle contemplated by this section is based on the rule that wrong doer should not be permitted to take advantage of his or
her own wrong or disability while seeking relief at the hands of the Court. It is also based upon well established principle of matrimonial law that
decrees relating to a marriage should be based only upon strict proof. Even in the advanced countries like England such a protection has been
granted to the parties to the marriage. Section 4 of English Matrimonial Causes Act, 1950 provides as follows : --
(1) On a petition for divorce it shall be the duty of the Court to inquire, so far as it reasonably can, into the facts alleged and whether there has
been any connivance or condonation on the part of the petitioner and whether any collusion exists between the parties, and also to inquire into any
countercharge which is made against the petitioner.
(2) If the court is satisfied on the evidence that : --
a) the case for the petitioner has been proved and
b) where the ground of the petition is adultery the petitioner has not in any manner been accessory to, or connived at, or condoned the adultery, or
where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty, and
c) the petition is not presented or prosecuted in collusion with the respondent or either of the respondents; the court shall pronounce a decree of
divorce, but if the court is not satisfied with respect to any of the aforesaid matters, it shall dismiss the petition
Provided that the court shall not be bound to pronounce a decree of divorce and may dismiss the petition if it finds that the petitioner has during the
marriage been guilty of adultery or if, in the opinion of the Court, the petitioner has been guilty-
i) of unreasonable delay in presenting or prosecuting the petition; or
ii) of cruelty towards the other party to the marriage; or
iii) where the ground of the petition is adultery or cruelty of having without reasonable excuse deserted, or having without reasonable excuse
wilfully separated himself or herself from, the other party before the adultery or cruelty complained of; or
iv) whether the ground of the petition is adultery or unsoundness of mind or desertion, or such wilful neglect or misconduct as has condoned to the
adultery or unsoundness of mind or desertion.
The words, ""if the court is satisfied"", cast a duty upon the court to be satisfied not only with respect to the claim of the petitioner under a particular
section of the Act but also that the petitioner was not in any way disentitled to the relief prayed for u/s 23 of the Act. If follows therefore that in a
proceedings for obtaining a relief of divorce or judicial separation the petitioner has to prove firstly the existence of the grounds upon which he
claims divorce u/s 13 or judicial separtion u/s 10 of the said Act and secondly to satisfy the court that he was not in any way taking advantage of
his own fault and had not incurred any disability described in Section 23 Clauses (a) to (e) of the Act.
Mr. Nanda learned Counsel appearing for the respondent has however submitted that as condonation was not specifically pleaded and that
there was no evidence regarding the alleged condonation, the argument of the appellant was misconceived Mr. Parihar has however submitted thai
condonation could be implicit from the act of cohabitation,
To appreciate the rival contention of the parties we have to keep in mind that social meaning to the term 'marriage' which originated from loose
sexual relations between man and woman now mean in the civilised society, legislation of sexual relations between a man and woman in the society
for the perpetuation of the race, permitting lawful indulgence in passions to prevent licentiousness and for the procreation of the children. The
Supreme Court held in Dr. N.G. Dastane Vs. Mrs. S. Dastane, that the relief prayed for under the Act can be decreed only if the court is satisfied
that none of the disabilities as contemplated in Section 23 of the Act existed. It was further held that ""condonation means forgiveness of the
matrimonial offence and the restoration of offending spouse to the same position. To constitute condonation there must be, therefore, two things:--
forgiveness and restoration."" It is further held that, in a case where the spouse after separation resumes cohabitation with the alleged erring party
the condonation has to be inferred. However, stray acts of sexual intercourse may not be sufficient to come to the conclusion that the acts
complained of had been condoned. If during the co-habitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of
intimacy which characterises normal matrimonial relations, the intent to forgive and restore the offending spouse to the original status may
reasonably be inferred. It cannot be argued that the sexual act was undertaken by one of the parties just in order to kill boredom or in a spirit of
revenge. Such speculation is impermissible. Sex plays an important role in marital life and cannot be separated from other factors which lend to
matrimony a sense of fruition and fulfilment. If it can be shown that a spouse led a normal sexual life even after a series of acts of cruelty by one
spouse, is a proof that the other spouse condoned that cruelty. Intercourse, of course, is not necessary ingredient of cohabitation because there
may be evidence otherwise to show that the offending spouse has been for-given and has been received back into the position previously occupied
in the home. Intercourse between parties raises a strong inference of condonation with its due requirement of forgiveness and restoration. It tails
therefore that irrespective of the pleadings of the parties, the court is under an obligation to see that besides the existence of any of the grounds
justifying grant of appropriate relief under the section, no disability exists for the grant of such a relief u/s 23 of the Act. The technical plea of not
specifically pleading the condonation would not in any way debar the court from giving a finding regarding such disability as in the instant case the
disability of condonation of alleged cruelty.
In the instant case even though the learned Counsel appearing for the appellant had argued before the single Bench of this Court regarding the
applicability of Section 23 and non-maintainability of the petition in view of the condonation of the alleged cruelty by the respondent-husband, yet
the Hon'ble single Judge despite noting the arguments and referring to the judgments cited at the bar did not give any finding regarding this
argument of the learned Counsel of the appellant. In view of the fact that it was incumbent upon the first appellate court to ascertain the position on
the basis of the record and give a finding regarding the argument advanced with respect to the mandatory provisions of law as incorporated in
Section 23 of the Act, we are left with no option but to set aside the judgment of the Hon'ble single Judge. Under the normal circumstances we
would have been inclined to frame an additional issue regarding the condonation of delay and remit the same to the trial Court for a finding upon it
but keeping in view the pendency of the lis pertaining to the matrimonial dispute right from the year 1970 we have decided to appreciate the
evidence led in the case in this behalf ourselves and finally adjudicate the rights of the parties in this litigation. It is however pointed out that in all
cases in which any major relief under the Hindu Marriage Act is claimed, it is the duty of the court to keep in view the mandatory provisions of
Section 23 and frame an issue in terms thereof as has been held by this court in Kailash Kumari v. Man Mohan Kapoor reported as 1975 KLJ
350 : (AIR 1975 J&K 95) so that the parties can lead the evidence and the court be in a position to. properly adjudicate upon the real
controversy.
In the instant case however the evidence led by the respondent-husband regarding the cruelty is of general nature without specifying the date
and time or specific incident which has been held to be cruel towards the husband. However in view of the concurrent finding of the two courts we
are not in a position to disturb the finding of fact so far as the factum of alleged cruelty is concerned. It is unfortunate that the normal wear and tear
of a family life has been held to be amounting to cruelty. It is an admitted fact in this case that after the alleged cruelty, the petitioner-husband
resumed co-habitation with his wife and lead a normal matrimonial life. The evidence led by the petitioner does not specifically show as to when the
last act of cruelty was committed by the wife. The evidence does not even show as to when the wife appellant left the matrimonial house of her
husband. However the appellant has alleged that she left the house of the husband about three months prior to and in connection with the delivery
of the child. The child was born to the parties on 23/24th Nov. 1970. The alleged acts of cruelly, if any, cannot go beyond August, 1970. It has
further to be seen that the child was conceived latest by Feb. 1970. All acts of alleged cruelty attributed prior to Feb. 1970 would therefore be
deemed to have been condoned as the parties resumed co-habitation and were leading normal matrimonial life. It has to be seen that whether any
fresh act of cruelty was committed by the wife between Feb. 1970 to August 1970. Assuming for the sake of arguments that such cruelty was
committed by the appellant towards the husband-respondent yet there is evidence on the record to show that the husband thereafter tried his best
to resume matrimonial relations with the wife and wanted her to come back under his roof and protection. If the husband had made offer to bring
the wife back despite alleged cruelty it cannot be said by any stretch of imagination that he was trying to bring back the wife only with the object to
avoid boredom or just as a ritual. The offers on the part of the husband to resume co-habitation and rehabilitation of matrimonial relations with the
wife are clearly indicative of the fact that he had condoned the acts of cruelty, if any, which were attributed to the wife. Bharat Singh P.W. has
stated that he along with the husband-respondent have been going to see the appellant-wife and her child in the hospital where she had given
delivery. He has further stated that prior to that the husband had been going to the parental house of the wife and had been even giving her cash
and fruit. He has further stated that the petitioner has been making all efforts to bring the wife to his fold. Similarly petitioner himself has also
admitted the fact that he has been trying his best to rehabilitate matrimonial ties with the respondent-wife. He submits that after the birth of the child
he went to the appellant-wife with the intention of taking her back to his house, but her parents did not allow her to come. He further submits that
he was not even allowed to meet his wife. This statement of the petitioner himself is sufficient to show that despite alleged cruelty he had tried his
best to bring the appellant-wife back to his fold which in our opinion amounts to condonation in view of the proposition of law as enunciated
hereinabove.
We therefore accept this appeal and set aside the judgment and decrees passed by the Hon'ble single Judge of this court dt. 12-1-78 and of
the District Judge, Jammu dt. 31-3-1973. We dismiss the application of the respondent-husband filed under Sections 10 and 13 of the Act with
costs.