Article on Section 23(1)(b) of the Hindu Marriage Act, 1955

Condonation as a Bar to Matrimonial Relief: An Analysis of Section 23(1)(b) of the Hindu Marriage Act, 1955

Introduction

The Hindu Marriage Act, 1955 (hereinafter "HMA") provides for various matrimonial reliefs, including divorce and judicial separation. However, the grant of such reliefs is not absolute and is subject to the conditions stipulated in Section 23 of the Act. This provision acts as a crucial gatekeeper, ensuring that matrimonial remedies are not misused and are granted only when the petitioner is not disentitled due to their own conduct or other specified circumstances. Among its various clauses, Section 23(1)(b) specifically addresses the doctrine of condonation, primarily in the context of petitions grounded on adultery or cruelty. This article seeks to provide a comprehensive analysis of Section 23(1)(b) of the HMA, examining its statutory contours, the jurisprudential understanding of condonation, and its application by the Indian judiciary, drawing significantly from landmark precedents.

Understanding Section 23(1)(b) of the Hindu Marriage Act, 1955

Statutory Language and Scope

Section 23(1) of the HMA mandates that in any proceeding under the Act, whether defended or not, if the court is satisfied that certain conditions are met, then, and only then, shall it decree such relief. Clause (b) of Section 23(1) states:

"(b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of Section 13 [i.e., adultery], 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..."

This provision thus imposes a bar on granting relief if the petitioner, seeking divorce or another remedy on the ground of adultery, has been accessory to, connived at, or condoned the adulterous act(s). Similarly, if the ground is cruelty, the relief can be denied if the petitioner has condoned the cruelty. The application of this clause is therefore specific to petitions founded on the matrimonial offences of adultery (Section 13(1)(i) HMA) and cruelty (Section 13(1)(ia) HMA).

The Concept of Condonation in Matrimonial Law

Condonation, in matrimonial law, signifies forgiveness of a marital offence with the implied condition that the offence will not be repeated and that the offending spouse will thereafter treat the forgiving spouse with conjugal kindness. It involves a blotting out of the offence imputed, so as to restore the offending spouse to the same position which he or she occupied before the offence was committed. Critically, condonation is not mere forgiveness; it must be followed by reinstatement or restoration of the offending spouse to their former marital position. It is generally understood as a bilateral act, requiring both forgiveness by the aggrieved party and a restoration of the marital relationship.

Judicial Interpretation of Condonation: Key Precedents

The Indian judiciary has extensively interpreted and applied the doctrine of condonation under Section 23(1)(b) HMA. Several landmark judgments provide clarity on its scope and application.

Dr. N.G. Dastane v. Mrs. S. Dastane (1975 SCC 2 326): The Locus Classicus

The Supreme Court's decision in Dr N.G Dastane v. Mrs S. Dastane (1975) is a seminal authority on cruelty and condonation. The Court elucidated that condonation under Section 23(1)(b) involves both forgiveness and restoration. It was held that "continued cohabitation and maintaining a sexual relationship despite alleged cruelty imply conditional forgiveness, thereby negating the basis for judicial separation unless the condoned behavior is revived." The Court clarified that condonation is conditional; if the condoned offence is revived by subsequent misconduct, the condonation ceases to be effective. The judgment also underscored that the standard of proof in matrimonial cases is a "preponderance of probabilities." Importantly, as highlighted in Smt. Surbhi Agrawal v. Sanjay Agrawal (1999), citing Dastane, Section 23(1)(b) casts an obligation on the Court to consider the question of condonation even in undefended cases, provided there is evidence on record pointing towards it.

The Bombay High Court in RAJNI NARESH GIRADKAR v. NARESH PANDURANG GIRADKAR (2022) also referred to Dastane while discussing condonation of cruelty as a defence under Section 23(1)(b) of the HMA.

Condonation of Adultery

The application of Section 23(1)(b) in cases of adultery requires the court to be satisfied that the petitioner has not been accessory to, connived at, or condoned the adultery.

In Chetan Dass v. Kamla Devi (2001 SCC 4 250), the Supreme Court, while primarily dealing with Section 23(1)(a), also touched upon Section 23(1)(b). The Court noted the clauses of Section 23(1) and observed that where allegations of adulterous conduct are found correct against the petitioner (in the context of the petitioner taking advantage of his own wrong), relief might be denied. The case implicitly supports the notion that condonation of adultery by the petitioner would bar relief.

The Orissa High Court in Sagrika Debata v. Satyanarayan Debata And Anr. (2009 SCC ONLINE ORI 82) directly addressed condonation of adultery under Section 23(1)(b). The appellant contended that even if adultery was assumed, the respondent (husband) had condoned her conduct. The court considered this plea, emphasizing the need for evidence of condonation. The judgment cited Dr. N.G. Dastane, indicating that the principles of condonation (forgiveness and restoration) are applicable. The court examined whether the evidence established that the respondent had condoned the appellant's alleged adultery.

Condonation of Cruelty: Further Developments

The principles laid down in Dastane regarding condonation of cruelty continue to be applied and elaborated upon by various High Courts.

In Jayashree v. S. Suresh (2012 SCC ONLINE MAD 2043), the Madras High Court considered the argument that the petitioner was not entitled to a decree in view of Section 23(1)(b) HMA, implying a plea of condonation of cruelty. The court's task was to assess if the alleged cruelty was condoned based on the facts and circumstances.

The Karnataka High Court in SMT NETHRAVATHI v. SRI NAGARAJ (2022) discussed Section 23(1)(b) in a case where the trial court had referred to it, suggesting that the wife's tolerance of ill-treatment amounted to condonation. The High Court clarified that Section 23(1)(b) comes into picture when the party *seeking* a decree on grounds like cruelty is found to have condoned it, not necessarily when the defending party raises past tolerance as a justification for living separately due to subsequent cruelty. The court noted, "Section 23(1)(b) of the Hindu Marriage Act comes into picture when the party seeking a decree of divorce on the ground of desertion and cruelty is found to have condoned the same. In such cases the court may not grant such decree..."

The Bombay High Court in Danesh Madhukarrao Pahade v. Smita Danesh Pahade (2022) reiterated that "in order to constitute the condonation in terms of Section 23 (1) (b) of the Hindu Marriage Act, 1955 there must be forgiveness and restoration and the said act must be bilateral act of both the parties and not the unilateral act of one of the parties." The court held that "mere cohabitation on some occasions, in an attempt to repair the relationship, will not constitute condonation of cruelty." This emphasizes the substantive nature of condonation beyond superficial reconciliation attempts.

The Madhya Pradesh High Court in Smt. Surbhi Agrawal v. Sanjay Agrawal (1999) strongly affirmed the court's duty: "Even though condonation is not pleaded as a defence... there could be no manner of doubt that in view of the provisions of section 23(1)(b) of the hindu marriage act, a duty stood cast upon the Court to find out on preponderance of probabilities whether cruelty was condoned by the aggrieved spouse." This underscores the proactive role of the court in upholding the legislative mandate of Section 23.

Distinction from Section 23(1)(a)

It is pertinent to distinguish Section 23(1)(b) from Section 23(1)(a). While Section 23(1)(b) specifically deals with the petitioner's condonation of, or connivance/accessoryship to, the grounds of adultery or cruelty, Section 23(1)(a) is a broader provision. Section 23(1)(a) states that the petitioner must not be "in any way taking advantage of his or her own wrong or disability for the purpose of such relief."

Cases like Dharmendra Kumar v. Usha Kumar (1977 SCC 4 12) and Hirachand Srinivas Managaonkar v. Sunanda (2001 SCC 4 125) primarily interpret Section 23(1)(a). In Dharmendra Kumar, the Supreme Court held that mere non-compliance with a decree for restitution of conjugal rights does not automatically constitute a "wrong" under Section 23(1)(a) so as to disentitle the party from seeking divorce under Section 13(1A)(ii). The "wrong" must be misconduct serious enough to justify denial of relief. In Hirachand Srinivas Managaonkar, non-payment of maintenance was held to be a "wrong" under Section 23(1)(a), disentitling the husband from obtaining a divorce. These cases illustrate that Section 23(1)(a) addresses a different set of circumstances related to the petitioner's general conduct, distinct from the specific acts of condonation, connivance, or being an accessory as covered by Section 23(1)(b) concerning adultery and cruelty.

However, as seen in Chetan Dass v. Kamla Devi (2001), the provisions of Section 23 are often read together to ensure that relief is granted only to a deserving petitioner. The court in Chetan Dass noted that if the petitioner's own adulterous conduct is proven, Section 23(1)(a) would be attracted, preventing them from taking advantage of their own wrong, even if the primary ground for divorce might be different.

The Obligation of the Court under Section 23

Section 23 begins with the crucial phrase, "In any proceeding under this Act, whether defended or not, if the court is satisfied that..." and concludes with "...then, and in such a case, but not otherwise, the court shall decree such relief accordingly." This language imposes a mandatory duty upon the court to satisfy itself regarding the conditions specified in Section 23, including those in clause (1)(b), before granting any matrimonial relief.

As established in Dr. N.G. Dastane and emphatically reiterated in Smt. Surbhi Agrawal v. Sanjay Agrawal, this obligation exists even if condonation is not explicitly pleaded as a defence by the respondent, or in ex-parte proceedings. The court must, based on the evidence on record, determine on a preponderance of probabilities whether the matrimonial offence (adultery or cruelty) has been condoned by the petitioner. This judicial oversight is fundamental to preserving the integrity of matrimonial proceedings and ensuring that reliefs are granted in consonance with principles of justice and equity enshrined in the HMA.

Conclusion

Section 23(1)(b) of the Hindu Marriage Act, 1955, embodies the equitable principle that a petitioner who has condoned the matrimonial offence of adultery or cruelty, or has been accessory to or connived at adultery, should not be granted relief based on that very offence. The doctrine of condonation, requiring both forgiveness and restoration, acts as a significant check on the petitioner's right to seek matrimonial remedies. Judicial pronouncements, particularly the Supreme Court's decision in Dr. N.G. Dastane v. Mrs. S. Dastane, have provided a robust framework for understanding and applying this doctrine. The courts have consistently emphasized the conditional nature of condonation, its bilateral character, and the revival of the cause of action upon subsequent misconduct. Furthermore, the judiciary has affirmed its solemn duty to examine the aspect of condonation irrespective of whether it is pleaded, thereby upholding the legislative intent behind Section 23 to ensure fairness and prevent the abuse of matrimonial law. This provision remains a cornerstone in the adjudication of matrimonial disputes in India, balancing the right to seek relief with the imperative of conscionable conduct on the part of the petitioner.

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