Karnataka High Court

Smt Asha N vs Sri S Vinay on 6 December, 2023

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                                                         MFA No.2778/2022



                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 6TH DAY OF DECEMBER 2023

                                           PRESENT

                           THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
                                                                         R
                                              AND

                            THE HON'BLE MR. JUSTICE K.V.ARAVIND

                    MISCELLANEOUS FIRST APPEAL No.2778/2022 (FC)
                   BETWEEN:
                   SMT.ASHA N
                   W/O SRI S.VINAY
                   AGED ABOUT 38 YEARS
                   R/AT NO.109, 4TH MAIN, M BLOCK
                   KUVEMPUNAGAR, MYSURU-23                       ...APPELLANT

                   (BY SRI NARAYANA V. S., ADVOCATE)
                   AND:

                   SRI S.VINAY
                   S/O LATE G.S.SAMPATHKUMAR
                   AGED ABOUT 45 YEARS
                   R/AT NO.236, SHARADA COLONY
                   3RD STAGE, 4TH BLOCK
Digitally signed
by PRABHU          BASAVESHWARA NAGAR
KUMARA             BENGALURU - 560 079                         ...RESPONDENT
NAIKA
Location: High     (BY SRI DHYAN CHINNAPPA, SENIOR COUNSEL FOR
Court of
Karnataka              SRI T.P. SRINIVASA, ADVOCATE FOR C/R)

                        THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
                   SECTION 19(1) OF FAMILY COURTS ACT, 1984 PRAYING TO SET
                   ASIDE THE JUDGMENT AND DECREE DATED 25.01.2022 PASSED
                   BY THE I ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, MYSURU
                   IN M.C.NO.53/2021 ALLOWING THE PETITION FILED UNDER
                   SECTION 13(1A)(ii) OF THE HINDU MARRIAGE ACT.

                        THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
                   FURTHER HEARING THIS DAY, K.S. MUDAGAL J., DELIVERED THE
                   FOLLOWING:
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                                                     MFA No.2778/2022



                              JUDGMENT

Challenging the judgment and decree for dissolution of

marriage under Section 13(1A)(ii) of the Hindu Marriage Act,

1955 ('the Act' for short), the respondent in M.C.No.53/2021

on the file of I Additional Principal Judge, Family Court,

Mysuru has preferred this appeal.

2. The appellant was the respondent and the

respondent was the petitioner in M.C.No.53/2021 before the

trial Court. For the purpose of convenience, the parties are

referred to henceforth according to their ranks before the

trial Court.

3. Brief facts of the case:

(i) The marriage of the petitioner and the respondent

was solemnized on 24.02.2011 at Chanakya Kalyana

Mantapa, Vishveshwaranagar, Sterling Theatre Road, Mysuru.

The parties are Hindus and governed by the Act. The parties

had troubled marriage. The petitioner filed

M.C.No.1661/2012 before the Family Court, Bangalore under

Section 13(1)(ia) of the Act seeking decree for divorce. On

transfer to the Family Court, Mysuru, that was renumbered

as M.C.No.35/2013. The respondent filed M.C.No.196/2012

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against the petitioner seeking decree for restitution of

conjugal rights.

(ii) The Additional Principal Judge, Family Court,

Mysuru, on consolidating both the petitions, recorded the

evidence and on hearing the parties, by considered judgment

as per Ex.R5 dated 09.02.2016 dismissed M.C.No.35/2013

holding that the allegation of cruelty was not proved. The

said court allowed M.C.No.196/2012 holding that the

petitioner husband has deserted the wife without reasonable

excuse. The decree in M.C.No.196/2012 directed the

husband to take back the wife/ respondent to the

matrimonial home within two months from the date of the

order.

(iii) The husband/petitioner challenged the said

judgment before this Court in M.F.A.No.1905/2016 connected

with M.F.A.No.1906/2016 (FC). This Court by judgment Ex.P2

dated 03.11.2020 on hearing the parties disposed of the

appeals reserving liberty to the petitioner to file the petition

under Section 13(1A)(ii) of the Act seeking dissolution of his

marriage, if there is no resumption of cohabitation. It was

further observed that, if the petitioner is unsuccessful in the

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petition under Section 13(1A)(ii) of the Act, liberty is

reserved to him to revive the appeals.

(iv) Subsequent to such judgment, the petitioner filed

M.C.No.53/2021 before I Additional Principal Judge, Family

Court, Mysuru for divorce under Section 13(1A)(ii) of the Act

claiming that after the decree for restitution of conjugal

rights in M.C.No.196/2012, there was no resumption of

cohabitation and the marriage is irretrievably broken down.

(v) The respondent contested the petition claiming

that after the decree for restitution of conjugal rights, she

along with her relatives went to the house of the petitioner

for resumption of matrimonial cohabitation, but herself and

her relatives were thrown out after abuse. She further

alleged that thereafter the petitioner joined male PG to make

cohabitation impossible. Therefore, he himself is guilty of

non-resumption of cohabitation and he cannot take

advantage of his own wrong.

4. In support of the case of the petitioner, he got

himself examined as PW.1 and got marked Exs.P1 to P6. The

respondent was examined as RW.1 and on her behalf, Exs.R1

to R5 were marked.

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5. The trial Court on hearing the parties by the

impugned judgment and decree allowed the petition on the

ground that, if once there is no resumption within one year

after the decree for restitution of conjugal rights either of the

parties can seek decree for dissolution of marriage. The trial

Court held that mere disinclination of the party to resume the

marital life does not amount to wrong within the meaning of

Section 23(1)(a) of the Act. The respondent has preferred

the above appeal challenging the said decree.

6. In this appeal, since there is interim stay,

I.A.No.2/2022 is filed by the petitioner for vacating interim

stay. I.A.No.2/2023 is filed under Order XLI Rule 27 read

with Section 151 of CPC to adduce additional evidence. By

way of additional evidence, the petitioner seeks to produce

some printouts dated 26.01.2022, 26.02.2022 and

30.04.2022 said to be issued by some matrimonies and the

alleged e-mail chats between the respondent and one

Hariharasudan. By producing such documents, the petitioner

claims that the respondent has given advertisement in those

matrimonies seeking another marriage, she is not interested

in resumption of cohabitation. Therefore he claims that no

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purpose would be served by reversing the judgment on any

grounds. The said application is opposed by the respondent.

Submissions of Narayana V.S., learned Counsel for the respondent/wife:

7. The petitioner himself in his evidence

unequivocally admitted that the respondent and her relatives

had gone to his house for resumption of marriage and there

was galata. He himself admits that soon after that he joined

male PG. Such acts of the petitioner were clear plot to make

resumption impossible. Having done that, again he took

advantage of his own wrong. Such conduct of the petitioner

cannot be said to be simple disinclination under Section

23(1)(a) of the Act. The documents produced under

I.A.No.2/2023 are concocted one. The application shall be

dismissed as the same does not satisfy any of the

requirements of Order XLI Rule 27 of CPC and Section 65B of

the Indian Evidence Act, 1872. The judgments relied on by

the trial Court and by the petitioner's Counsel in this matter

are not applicable to the facts of the case.

8. In support of his contentions, he relies on the

following judgments:

1. Ravindra v. Kalpana1

2002(3) Mh.L.J. 741

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2. T.Srinivasan v. T Varalakshmi2

3. Krishna Bhattacharjee v. Sarathi Choudhury.3

Submissions of Sri Dhyan Chinnappa, learned Senior Counsel appearing for Sri T.P.Srinivasa, learned Counsel on record for the petitioner/husband.

9. If once there is no resumption of marital

cohabitation within one year of passing of the decree for

restitution of conjugal rights, either of the parties get the

right to seek decree for divorce under Section 13(1A) of the

Act. Even assuming that the petitioner was disinclined to

comply the decree for restitution of conjugal rights, that does

not amount to wrong as contemplated under Section

23(1)(a) of the Act. The parties are living separately for more

than 12 years. The marriage is irretrievably broken down.

Even if the decree is reversed, no purpose would be served

and the marriage survives only on papers. Under the

circumstances, the Court shall grant decree for divorce. The

judgments relied on by learned Counsel for the respondent

wife are not applicable to the facts of the case.

10. In support of his contentions, he relies on the

following judgments:

1. Dharmendra Kumar Vs. Usha Kumar4

(1998) 3 SCC 112

(2016) 2 SCC 705

AIR 1977 SC 2218

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2. Martin Sujay Vs. Smt.Amulyabrinda5

3. Samar Ghosh Vs. Jaya Ghosh6

4. Naveen Kohli Vs. Neelu Kohli7

5. K.Srinivas Rao Vs. D.A.Deepa8

6. SH.Rakesh Raman v. Smt.Kavita9

11. Considering the submissions of both side and on

careful perusal of the materials on record, the points that

arise for consideration of this Court are:

(i) Whether the impugned judgment and decree for dissolution of marriage under Section 13(1A)(ii) of the Act is sustainable?

(ii) Whether I.A.No.2/2023 for adducing additional evidence deserves to be allowed?

Analysis Reg. Point Nos.1 and 2:

12. There is no dispute between the parties regarding

facts and events stated supra. The question that has to be

considered in this case is whether on non-resumption of

cohabitation after decree for restitution of conjugal rights,

the decree for dissolution of marriage under Section 13(1A)

of the Act is inevitable/automatic. The next question is

whether willful non-compliance of decree for restitution of

ILR 2021 KAR 4324

(2007) 4 SCC 511

(2006) 4 SCC 558

(2013) 2 SCR 126

(2023) 3 S.C.R. 552

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conjugal rights does not amount to 'wrong' as contemplated

under Section 23(1)(a) of the Act.

13. In his petition, the petitioner did not allege that

non-resumption of cohabitation was due to disinclination on

the part of the respondent wife. He did not even say in the

petition that he made any effort for resumption of

cohabitation or compliance of the decree for restitution of

conjugal rights, though decree directed him to resume

cohabitation within two months. He simply says that there

was decree for restitution of conjugal rights based on the

petition of the respondent wife and the same is not complied

within one year. He refers to the judgment in

M.F.A.No.1905/2016 connected with M.F.A.No.1906/2016 to

say that liberty is given to him in the said judgment for

seeking decree for dissolution of marriage under Section

13(1A)(ii) of the Act.

14. Whereas the wife in her statement of objections

contended that she tried for resumption of cohabitation,

when she approached the petitioner in his house, herself and

her relatives were abused and thrown out. Thereafter to

defeat the decree for restitution of conjugal rights, the

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petitioner started residing in male PG making resumption of

cohabitation impossible.

15. After filing of such objections, the petitioner filed

rejoinder to the statement of objections. He has not claimed

that after decree for restitution of conjugal rights, the wife

did not make any efforts for resumption of cohabitation and

the marriage is irretrievably broken down. The wife filed

objections to the rejoinder denying the allegations made by

him claiming that the case falls under Section 23(1)(a) of the

Act which says that, in a proceeding under the Act whether

defended or not if the Court is satisfied that the petitioner is

seeking decree taking advantage of his or her own wrong,

then such decree cannot be granted.

16. PW1 in his evidence did not dispute that, after

decree for restitution of conjugal rights the wife visited his

house with her relatives to resume cohabitation and the

galata having taken place there. In the cross-examination, he

admits that after the decree he did not ask the respondent to

lead marital life with him nor suggested to her to join him in

Bangalore. He states that through his mother he came to

know that the respondent and her relatives visited his house

in Bangalore in 2nd week of March 2016 at 9.30 a.m. He

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denies that he was at home at that time and locked the gate

of the house and went away. He claims that at that time, he

was in office. In his cross-examination, he clearly declares

that he is not ready to accept the respondent. PW.1 in his

chief examination states that after the respondent

approached his house, his mother asked him to stay

separately, therefore he moved to male PG and has been

living there. That itself goes to show that there was no

possibility for the respondent to pursue cohabitation and the

petitioner himself made that impossible.

17. Relying on the judgment of the Hon'ble Supreme

Court in Dharmendra Kumar's case and the judgment of this

Court in Martin Sujay's case referred to supra it was

contended that mere disinclination of the party does not

amount to wrong within the meaning of Section 23(1)(a) of

the Act. In para 3 of the judgment in Dharmendra Kumar's

case referred to supra, it was held that to constitute a wrong

under Section 23(1)(a) of the Act, the conduct alleged has to

be something more than mere disinclination to agree to an

offer of reunion and it must be misconduct serious enough to

justify denial of the relief to which the husband or the wife is

otherwise entitled to. It was held that wife's refusal to

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receive the letters written by the husband appellant therein

does not amount to such wrong.

18. However, subsequent to that, three judges/

larger Bench of the Hon'ble Supreme Court in T.Srinivasan's

case referred to supra held that when the wife made demand

to the husband to let her join him and he refused to allow her

to enter the house, rather he drove her and her relatives

whoever attempted to rehabilitate the wife, such acts were

positive wrongs amounting to misconduct, uncondonable for

the purposes of Section 23(1)(a) of the Act.

19. Further the Hon'ble Supreme Court in para 17 of

the judgment in Hirachand Srinivas Managaonkar v.

Sunanda10 has narrated which acts amount to wrong within

the meaning of Section 23(1)(a) of the Act as follows:

"17. Now we come to the crucial question which specifically arises for determination in the case; whether refusal to pay alimony by the appellant is a "wrong"

within the meaning of section 23(1) (a) of the Act so as to disentitle the appellant to the relief of divorce. The answer to the question, as noted earlier, depends on the facts and circumstances of the case and no general principle or straitjacket formula can be laid down for the purpose. We have already held that even after the decree for judicial separation was passed by the Court

(2001) 4 SCC 125

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on the petition presented by the wife it was expected that both the spouses will make sincere efforts for a conciliation and cohabitation with each other, which means that the husband should behave as a dutiful husband and the wife should behave as a devoted wife. In the present case the respondent has not only failed to make any such attempt but has also refused to pay

the small amount of Rs.100 as maintenance for the wife and has been marking time for expiry of the statutory period of one year after the decree of judicial separation so that he may easily get a decree of divorce. In the circumstances, it can reasonably be said

that he not only commits the matrimonial wrong in refusing to maintain his wife and further estrange the relation creating acrimony rendering any rapprochement impossible but also tries to take advantage of the said "wrong" for getting the relief of divorce. Such conduct in committing a default cannot in

the facts and circumstances of the case be brushed aside as not a matter of sufficient importance to disentitle him to get a decree of divorce under section 13(1A)."

(Emphasis supplied)

20. Reading of the above paragraph shows that both

the spouses shall make sincere efforts for conciliation and

cohabitation with each other, which means the husband

should behave as a dutiful husband and the wife should

behave as a devoted wife. If that is not complied, it can be

reasonably said that the husband not only committed wrong

in further estranging the relation making it impossible to

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resume the marriage, but also tried to take advantage of the

said 'wrong' for getting divorce.

21. In para 14 of the said judgment it was held that

before granting prayer of the petitioner to permanently snap

the relationship between the parties to the marriage, every

attempt must be made to maintain sanctity of the

relationship which is of importance not only for the

individuals or their children but also for the society. In para

15 of the said judgment it was clarified that earlier judgment

in Dharmendra Kumar's case referred to supra cannot be

read to be laying down a general principle that the

petitioner in an application for divorce is entitled to the

relief merely on establishing the existence of the ground

pleaded by him or her in support of the relief; nor that the

decision lays down the principle that the Court has no

discretion to decline relief to the petitioner in a case where

the fulfillment of the ground pleaded by him or her is

established.

22. In Hirachand Srinivas Managaonkar's case

referred to supra, the Hon'ble Supreme Court held that the

judgment of the Madras High Court in Soundarammal v.

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Sundara Mahalinga Nadar alias Linga Nadar11 has approval

of the Hon'ble Supreme Court. In para 28 of the judgment in

Soundarammal's case referred to supra, Madras High Court

considering the interplay of the Amending Act 1964 and

Amending Act 1976, and the scope of Section 23(1)(a) of the

Act held as follows:

"28. Before I deal with other aspects, I will briefly deal with the question as to what extent the two Amending Acts, viz. .Central Acts 44 of 1964 and 68 of 1976 have enabled the defaulting spouse to seek relief under S. 13 (1-A) of the act, without being tested by S.

23 (1) (a) of the Act, even though, it is claimed by the counsel for respondent that there is no restriction imposed on the rights now conferred on a wrong-doer to ask for divorce. The points which have come up for consideration before the High Courts of Punjab and Haryana, and Delhi in the decisions above referred to, can be resolved by holding that the two amending Acts have now enabled defaulting spouses to seek for the relief of divorce, provided he or she satisfies the court, that S.23 of the Act is not attracted since non-compliance of a decree for judicial separation or restitution of conjugal rights is not a 'wrong' within the meaning S.23 (1) (a) of the Act. Thus, in all those instances in which S.23 is not attracted, the two amending Acts have enabled even defaulting spouses to get relief under S.13 (1-A) of the Act. The amending Acts have not enabled wrong doers, who would come within the ambit of S.23 (1) (a) of the Act to get the relief of divorce, on the plea that

AIR 1980 Mad 294

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liberalisation had been brought about towards divorce to such an unlimited extent. In my view the amending Acts 44 of 1964 and 68 of 1976 have not enabled all sorts of defaulting spouses to get relief for divorce, which was not at all available earlier, but it would be available only in such of those instances, wherein S.23 of the Act cannot be applied. Hence, I hold that the respondent

herein, a continuing wrongdoer, cannot plead that, after the said two Amending Acts, S. 23 (1) (a) cannot be invoked against him, and therefore the decision of the

lower appellate court is hereby set aside."

(Emphasis supplied)

23. Reading of the above judgment clearly shows

that two amending Acts have not enabled wrong doing

spouse who comes within the ambit of Section 23(1)(a) of

the Act to get the relief of divorce, on the plea that

liberalization had been brought about towards divorce to such

an unlimited extent. Therefore it is clear that, the Amending

Acts 44 of 1964 and 68 of 1976 have not enabled all sorts of

defaulting spouses to get relief of divorce, which was not at

all available earlier, but it would be available only in such of

those instances wherein Section 23(1)(a) of the Act cannot

be applied.

24. The judgment in Dharmendra Kumar's case

referred to supra was further clarified by the Hon'ble

Supreme Court in Krishna Bhattacharjee's case referred to

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supra. In paras 19 and 20 of the said judgment, the Hon'ble

Supreme Court referring to its earlier judgment in Hirachand

Srinivas Managaonkar's case referred to supra held that

after decree for judicial separation was passed, it was the

duty of both spouses to do their part for cohabitation. It was

further held that the husband was expected to act as a

dutiful husband towards the wife and the wife was to act as a

devoted wife towards the husband. If a spouse did not make

any sincere effort, then that amounts to wrong within the

meaning of Section 23(1)(a) of the Act and in such cases the

prayer for dissolution of marriage can be declined.

25. Sri Dhyan Chinnappa, learned Senior Counsel

strenuously argued that facts of all the aforesaid judgments

are different, therefore, they are not applicable. However, in

those judgments itself it is clearly stated that apart from the

criteria laid down while deciding whether the act of the party

amounts to wrong under Section 23(1)(a) of the Act, the

matter has to be considered on the facts of each case. The

judgment in Martin Sujay's case referred to supra was

rendered relying on the judgment in Dharmendra Kumar's

case referred to supra. Firstly, the judgment in Dharmendra

Kumar's case was clarified by the Hon'ble Supreme Court

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subsequently viz., in para 15 of the judgment in Hirachand

Srinivas Managaonkar's case referred to supra stating that

Dharmendra Kumar's judgment is being misquoted often.

Further, the larger bench of the Hon'ble Supreme Court in

T.Srinivasan's case held that after the decree for restitution

of conjugal rights, on wife demanding for restitution, if

husband refuses her entry into the house, that amounts to

positive wrong/misconduct, uncondonable for the purpose of

Section 23(1)(a) of the Act. Therefore, the Court has to

follow those judgments of the Hon'ble Supreme Court.

26. The evidence on record clearly shows that the

petitioner husband made resumption of marital life

impossible and did not behave like a dutiful husband to

enable the wife for resumption of matrimonial relationship.

Therefore, his act clearly falls within the term 'wrong'

contemplated under Section 23(1)(a) of the Act. Since, the

petitioner himself is guilty of wrong within the meaning of

Section 23(1)(a) of the Act, he is not entitled to the

advantage of decree under Section 13(1A)(ii) of the Act.

Suffice it to say that the judgments relied on by learned

Senior Counsel cannot be justifiably applied to the facts of

the present case. Anyway the judgment in T.Srinivasan's

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case referred to supra rendered by the larger Bench takes

precedence over the other judgments relied on by Sri Dhyan

Chinnappa, learned Senior Counsel.

27. The judgments in Samar Ghosh's case Naveen

Kohli's case, K.Srinivas Rao's case and Kavita's case referred

to supra were relied to contend that, when there is no

cohabitation for long time and the marriage is irretrievably

broken down, the Courts have to exercise the power to grant

decree for dissolution of marriage. Reading of the said

judgments show that in those cases the Courts were satisfied

that both the parties were not ready for resumption of

cohabitation. In the present case, the respondent wife is

unwilling for dissolution of marriage and she is ready for

resumption of cohabitation. She does not want to carry the

stigma of divorce. Under the circumstances, those judgments

cannot be applied to the facts of the present case.

28. Conjoint reading of Sections 13(1A) and 23(1)(a)

of the Act makes it clear that the legislature did not intend

that on non-resumption of cohabitation after decree for

restitution of conjugal rights there should be an automatic

decree for dissolution of marriage. If such interpretation is

permitted, that gives handle to unscrupulous parties to abuse

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the process of the Court and secure a decree for dissolution.

In such cases to circumvent the rigorous provisions of

Section 13(1) of the Act, spouse intending to part the way

may file the petition for restitution of conjugal rights and the

other willing spouse without smelling the malafides behind

such petition may concede for the decree. Later such decree

holder making the resumption of conjugal life impossible, can

capture a decree for dissolution of marriage. Similarly a

spouse who is keen to continue the conjugal life may file a

petition for restitution of conjugal rights, on he or she getting

such decree, the other spouse on making the resumption

impossible may capture a decree for dissolution of marriage.

In such cases the spouse who filed the petition/conceded for

restitution of conjugal rights with the earnest interest of

resumption of cohabitation has to later lament that he/she

committed a sin in seeking decree for conjugal rights. That

ruins his/her life by such automatic decree for dissolution of

marriage.

29. In other cases, if a party does not comply the

Court's order willfully, he or she will be hauled for contempt

of Court under the provisions of the Contempt of Courts Act,

1971, but in these kinds of cases defaulting party gets bonus

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by his own wrong. Therefore, the interpretation that the

willful non-compliance of the decree for restitution of

conjugal rights does not amount to wrong within the meaning

of Section 23(1)(a) of the Act defeats the scheme and

purpose of Sections 23(1)(a) and 13(1A) of the Act. The

purpose of the Act is to protect the institution of

marriage/family which in the tradition and culture of India is

considered as the invaluable foundation of the society. If

such interpretation is permitted, that amounts to giving

incentive to a party of his own wrong. Therefore, the

contention that willful non compliance of the decree for

restitution of conjugal rights does not amount to a wrong

within the meaning of Section 23(1)(a) of the Act, is bereft of

any merit.

30. So far as the documents sought to be produced

under I.A.No.2/2023 as additional evidence, first of all they

are not primary evidence. Section 65B of the Evidence Act

bars receipt of any such documents. Secondly, the

respondent wife denies genuineness of those documents.

Thirdly, the documents are sought to be produced under the

application after addressing substantial arguments on merits

of the matter, apparently to drag on the proceedings. Under

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the aforesaid facts and circumstances, the appeal deserves to

be allowed with heavy costs and I.A.No.2/2023 is liable to be

dismissed. Hence the following:

ORDER

I.A.No.2/2023 is dismissed.

The appeal is allowed with costs of Rs.1,00,000/-

payable by the respondent to the appellant within two weeks

from the date of receipt of copy of this order.

The impugned judgment and decree dated 25.01.2022

in M.C.No.53/2021 passed by I Additional Principal Judge,

Family Court, Mysuru is hereby set aside.