Madhya Pradesh High Court
Nitin Sihare vs Sarika Sihare on 3 April, 2024
Author: Sheel Nagu
Bench: Sheel Nagu, Amar Nath Kesharwani
1 F.A. No.1046-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI AMAR NATH (KESHARWANI)
ON 3rd APRIL, 2024
F.A. No.1046 OF 2022
BETWEEN:-
NITIN SIHARE, S/O M.L. SIHARE, AGED ABOUT
36 YEARS, OCCUPATION - SELF EMPLOYED,
R/O 26 SURBHI PARISAR AYODHYA BYPASS,
NARELA JOD, BHOPAL, DISTRICT BHOPAL
(M.P.)
.....APPELLANT
(BY SHRI VIVEK AGRAWAL - ADVOCATE)
AND
SARIKA SIHARE, W/O NITIN SIHARE, AGED
ABOUT 31 YEARS, R/O A-89, NATURE CITY POST
SALKARI, DISTRICT BILASPUR, CHHATTISARH
.....RESPONDENT
(NONE FOR RESPONDENT)
----------------------------------------------------------------------------------------------------
This appeal coming on for admission this day, Justice Sheel Nagu passed
the following:
JUDGMENT
This appeal filed u/S. 19 of Family Court Act assails order dated
11.03.2022 passed by 1st Principal Judge, Family Court Bhopal in MJC
No.848A/2016 by which divorce petition filed u/S. 13 of the Hindu Marriage
Act by appellant/husband was dismissed for default of producing evidence in
support of divorce petition and failing to pay even a single penny towards
pendente lite maintenance directed by Family Court nearly five years ago.
2. Learned counsel for appellant - Shri Vivek Agrawal is heard on the
question of admission so also final disposal.
3. Learned counsel for appellant attacked the impugned order on the sole
ground that mearly for non-payment of pendente lite maintenance, divorce
petition of the husband/appellant cannot be dismissed. In support, Shri
Agrawal has contended that none of the judgments relied upon by Family
Court in the impugned order lay down in clear terms that the default of
payment of pendente lite maintenance can led to dismissal of divorce suit
filed by the appellant/husband.
3.1 When confronted with the provisions of Section 23 of Hindu Marriage
Act, 1955 and decision of the Apex Court in Hirachand Srinivas
Managaonkar Vs. Sunanda, 2001(4) SCC 125 (Para 17), Shri Agrawal has
relied upon the decision of Apex Court in the case of Rajnesh vs. Neha &
Ors., (2021) 2 SCC 324 to contend that while reconciling various decisions
rendered in the past on subject of pendente lite maintenance, Apex Court has
not laid down in Rajnesh vs. Neha (supra) that default of payment of
pendente lite maintenance cannot lead to non-suiting appellant/husband.
4. It is true that in Rajnesh Vs. Neha (supra), the decision of Hirachand
Srinivas Managaonkar (supra) was not taken into account. Since the
decision in the case of Hirachand Srinivas Managaonkar (supra) and
Rajnesh Vs. Neha (supra) are rendered by Benches of same Judge strength
but since Hirachand Srinivas Managaonkar (supra) is earlier in point of
time, the ratio in Hirachand Srinivas Managaonkar (supra) continues to
hold the field [Please See: Jabalpur Bus Operators Association and others
Vs. State of M.P. and others, 2002 SCC OnLine MP 631] especially in
respect of interpretation of Section 23 of Hindu Marriage Act, 1955.
5. For ready reference and convenience, Section 23 of Hindu Marriage
Act, 1955 is reproduced below in toto:
"23. 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, and
(b) where the ground of the petition is the ground specified
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
(bb) when a divorce is sought on the ground of mutual
consent, such consent has not been obtained by force,
fraud or undue influence, and
(c) the petition (not being a petition presented under
section 11) is not presented or prosecuted in collusion with
the respondent, and
(d) there has not been any unnecessary or improper delay
in instituting the proceeding, 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.
(2) Before proceeding to grant any relief under this Act, it shall
be the duty of the court in the first instance, in every case where
it is possible so to do consistently with the nature and
circumstances of the case, to make every endeavour to bring
about reconciliation between the parties:
Provided that nothing contained in this sub - section shall apply
to any proceeding wherein relief is sought on any of the grounds
specified in clause (ii), clause (iii), clause (iv), clause (v), clause
(vi) or clause (vii) of sub - section (1) of section 13.
(3) For the purpose of aiding the court in bringing about such
reconciliation, the court may, if the parties so desire or if the
court thinks it just and proper so to do, adjourn the proceedings
for a reasonable period not exceeding fifteen days and refer the
matter to any person named by the parties in this behalf or to
any person nominated by the court if the parties fail to name any
person, with directions to report to the court as to whether
reconciliation can be and has been, effected and the court shall
in disposing of the proceeding have due regard to the report.
(4) In every case where a marriage is dissolved by a decree of
divorce, the court passing the decree shall give a copy thereof
free of cost to each of the parties."
6. While interpreting and explaining the aforesaid provisions of Section
23 especially the consequences that befall for non-payment of pendente lite
maintenance by appellant/husband, Apex Court in Hirachand Srinivas
Managaonkar held thus :
"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 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(1-A).
18. In this connection the decision of a Single Judge of the
Calcutta High Court in the case of Sumitra Manna v. Gobinda
Chandra Manna [AIR 1988 Cal 192 : (1987) 2 Cal LJ 133] may
be referred where it was held that if alimony or maintenance is
ordered to be paid under the provisions of the Hindu Adoptions
and Maintenance Act, 1956 or the Codes of Criminal Procedure
of 1973 or of 1898 and the husband does not comply with the
order, the same may under certain circumstances secure an
advantage to the wife in obtaining a decree for divorce under
Section 13(2)(iii) of the Act. But no advantage can or does accrue
to a husband for his failure to pay any alimony or maintenance to
the wife in obtaining a decree for divorce against the wife under
Section 13(1-A) and, therefore, the husband cannot be said to be
in any way taking advantage of such non-payment within the
meaning of Section 23(1)(a) in prosecuting his petition for
divorce under Section 13(1-A). This decision, which proceeds
upon a narrow construction of the relevant provisions throwing
overboard the laudable object underlying Section 23(1)(a) of the
Act, in our view, does not lay down the correct position of law.
19. The question that remains to be considered is whether in the
facts and circumstances of the case in hand the appellant
husband can be said to have committed and to be committing a
"wrong" within the meaning of Section 23(1)(a) by continuing to
live with his mistress even after passing of the decree for judicial
separation on the ground of adultery. The respondent presented
the petition seeking a decree of judicial separation on the ground
that the appellant has been living in adultery since he is living
with another lady during the subsistence of the marriage with
her. The Court accepted the allegation and passed the decree for
judicial separation. Even after the decree the appellant made no
attempt to make any change in the situation and continued to live
with the mistress. To pursue still such an adulterous life with no
remorse, even thereafter, is yet another "wrong" which he
deliberately continued to commit, to thwart any attempt to reunite
and, in such circumstances can it be said that the passing of a
decree for judicial separation has put an end to the allegation of
adultery; or that the chapter has been closed by the decree for
judicial separation and therefore he cannot be said to have
committed a "wrong" by continuing to live with the mistress. The
learned counsel appearing for the appellant placed reliance on a
Division Bench decision of the Gujarat High Court in the case of
Bai Mani v. Jayantilal Dahyabhai [AIR 1979 Guj 209] in which
the view was taken that matrimonial offence of adultery had
exhausted itself when the decree for judicial separation was
granted, and therefore, it cannot be said that it is a new fact or
circumstance amounting to wrong which will stand as an obstacle
in the way of the husband to successfully obtain the relief which
he claims in the divorce proceedings, and contended that the
question should be answered in favour of the husband as has
been done by the Gujarat High Court. We are unable to accept
the contention. Living in adultery on the part of the husband in
this case is a continuing matrimonial offence. The offence does
not get frozen or wiped out merely on passing of a decree for
judicial separation which as noted earlier merely suspends
certain duties and obligations of the spouses in connection with
their marriage and does not snap the matrimonial tie. In that
view of the matter accepting the contention raised on behalf of
the appellant would, in our view, defeat the very purpose of
passing the decree for judicial separation. The decision of the
Gujarat High Court does not lay down the correct position of
law. On the other hand, the decision of the Madras High Court in
the case of Soundarammal v. Sundara Mahalinga Nadar [AIR
1980 Mad 294 : (1980) 2 MLJ 121] in which a Single Judge took
the view that the husband who continued to live in adultery even
after decree at the instance of the wife could not succeed in a
petition seeking decree for divorce and that Section 23(1)(a)
barred the relief, has our approval. Therein the learned Judge
held, and in our view rightly, that illegality and immorality
cannot be countenanced as aids for a person to secure relief in
matrimonial matters."
[emphasis supplied]
7. From the aforesaid what comes out loud and clear is that object behind
Section 23 is to prevent husband from taking advantage of his own wrongs
(default in payment of pendente lite maintenance) and has to suffer such a
default to the extent of being non-suited.
8. In the instant case, pendente lite maintenance ordered sometime in
2019 has not been paid to wife even till date. More so, the Family Court
granted more than sufficient opportunity to appellant/husband to produce
evidence in support of the pleadings in the divorce petition. The
appellant/husband was directed to produce evidence in the year 2019.
Thereafter divorce petition of the husband continued to be pending for the
last nearly three years which was ultimately dismissed in default for
production of evidence as well as for failure of pay of pendente lite
maintenance to wife.
9. Impugned order passed by Family Court appears to be in the line of
object behind Section 23(1)(a) as explained succinctly by Apex Court in case
of Hirachand Srinivas Managaonkar (Supra).
10. Consequent upon the aforesaid discussion, this Court declines
interference.
11. Consequently, appeal stands dismissed.
(SHEEL NAGU) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
Biswal
Date: 2024.04.10 18:54:12 +05'30'
