Ganta Lakshmi v. G.V.R.K Sarveswara Rao ., Andhra Pradesh High Court, Judgment, Law, casemine.com

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Case Number

A.S No. 548 of 1980

Attorney(S)

For the Appellant: M. Jagannath Rao, M.S.K. Shastri, Advocates.

Judges

Jeevan Reddy
Amareswari, JJ.

Acts

S. 13 (1A) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act)
Act 44 of 1964 and Cls. (Viii) and (ix) of subsec. (1) of S. 13
provisions of section 23 (1) (a) of the Hindu marriage Act.
S. 18 of the Hindu Adoptions and Maintenance Act
sections of the Hindu marriage Act. 9. Section 9
Hindu marriage Act, the provisions of S. 13
section 13 by Act 44 of 1964 and Act 68

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Smart Summary

Factual and Procedural Background

The appeal arises from an order of the Subordinate Judge, Rajahmundry dated 8-2-1979 granting a decree of divorce at the instance of the husband (respondent). The wife is the appellant.

The parties were married in 1960 and are said to have lived happily together for about six years. Difficulties began after the birth of the third child at Mission Hospital, Rajahmundry, when doctors advised that the wife should not have more children and suggested that the husband undergo vasectomy. The husband resented this advice and left for Konthamuru, leaving the wife and the newborn in hospital. The wife's father (R.W.2) took her and the child to his place at Vedisileru.

The wife filed O.P. No. 159 of 1967 for restitution of conjugal rights; the petition was allowed on merits and the order is marked Ex. A-2. (The opinion contains two references to the date of that decree: para 2 records that the petition was allowed on 27-10-1971 by Ex. A-2; para 6 later states the decree for restitution of conjugal rights was passed on 27-10-1976 as evidenced from Ex. A-2. Both references appear in the opinion text.)

The wife alleged she was ill-treated by the husband and her mother-in-law, kept separate with her children, and ultimately driven out of the house; she lived with her parents thereafter. She filed O.S. No. 44 of 1972 for maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, alleging cruelty and desertion; that suit was decreed on 5-4-1974 (Ex. A-3) awarding Rs. 100 for maintenance for the wife and three children. No appeal was taken from that decree, so it became final.

The husband then filed O.P. No. 16 of 1976 seeking divorce under Section 13(1A) of the Hindu Marriage Act, 1955. He claimed the parties had not lived together for two years after the decree for restitution of conjugal rights, that reconciliation was impossible, and that he was not guilty of any wrong disentitling him to relief; he also alleged the wife was guilty of desertion.

The wife filed a written statement denying the allegations. The trial court framed two issues: (1) whether the parties lived together after the decree for restitution of conjugal rights, and (2) whether the husband was taking advantage of his own wrong and whether the wife was guilty of desertion. The trial court answered both issues in favour of the husband, finding the parties did not live together after the decree, that the wife's claim of being driven out was not true, that the husband had committed no wrong disentitling him to relief under Section 13(1A), and that the wife was guilty of desertion. The trial court accordingly granted a decree for divorce.

The present appeal challenges that decree. The appellate court ultimately allowed the appeal, dismissed O.P. No. 16 of 1976 (the husband's petition for divorce), and ordered no costs.

Legal Issues Presented

Whether the parties resumed or lived together after the decree for restitution of conjugal rights (i.e., whether the statutory period after such a decree required by Section 13(1A) had been satisfied in a manner entitling the petitioner to divorce).
Whether the husband was taking advantage of his own wrong or disability, such that Section 23(1)(a) would bar him from obtaining relief under Section 13(1A).
Whether the wife was guilty of desertion in light of the maintenance decree (O.S. No. 44 of 1972) which had become final.
Whether amendments to Section 13 (by Act 44 of 1964 and Act 68 of 1976) removed the applicability of Section 23(1)(a) to petitions under Section 13(1A).

Arguments of the Parties

Appellant's (Wife's) Arguments

The evidence shows the husband made it impossible for the wife to live with him by ill-treating her; she was driven out of the house after the decree for restitution of conjugal rights and had no alternative but to live with her parents.
The husband and his mother ill-treated her, kept her and her children separately and cut off supplies, and ultimately expelled her from the matrimonial home.
The husband cannot take advantage of his own wrong to claim dissolution of marriage under Section 13(1A).
The decree in the maintenance suit (O.S. No. 44 of 1972), which became final, establishes that she was entitled to live separately and therefore is a complete answer to any allegation of desertion by the wife.

Respondent's (Husband's) Arguments

He claimed the parties had not lived together for the statutory period after the decree for restitution of conjugal rights, and thus he was entitled to divorce under Section 13(1A).
He asserted there were no chances of reconciliation and that he was not guilty of any wrongdoing disentitling him to relief.
He alleged the wife was guilty of desertion.
He contended that Section 23(1)(a) has no application to proceedings under Section 13 following the amendments of Section 13 by Act 44 of 1964 and Act 68 of 1976 (i.e., that amendments to S.13 removed the bar created by S.23(1)(a)).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dharmendra Kumar v. Usha Kumar (Supreme Court) [citation as in opinion]	Holds that grounds for granting relief under Section 13, including sub-sec. (1A), continue to be subject to the provisions of Section 23 of the Act; misconduct must be more than mere disinclination and must be serious enough to deny relief.	The court relied on this authority to support the proposition that Section 23(1)(a) still applies to Section 13(1A) and to explain the threshold of "wrong" required to deny relief.
M. Someswara v. Leelavathi, AIR 1968 Mys 274	Illustrates refusal of relief where, apart from non-compliance, the petitioner was guilty of positive acts of ill-treatment and thus could not take advantage of his own wrong under Section 23(1)(a).	The court cited this decision as consonant authority for denying relief where there were positive acts of ill-treatment subsequent to the decree for restitution of conjugal rights.
Bimla Devi v. Singh Raj (Punjab High Court) [citation as in opinion]	Holds that mere non-compliance with a decree for restitution cannot by itself be a wrong disentitling a party to divorce under Section 13(1A); there must be fresh acts of wrong or disability after the decree and the advantage sought must arise from those fresh acts.	The court considered this decision but distinguished it on the facts: in the present case the husband had ill-treated the wife and driven her away after the decree, so Bimla Devi was not applicable as a bar to refusing relief here.

Court's Reasoning and Analysis

The court proceeded by first considering the evidence and the interplay between Section 13(1A) and Section 23(1)(a) of the Hindu Marriage Act. It reviewed the statutory history: clauses enabling divorce on grounds related to non-resumption of cohabitation and failure to comply with restitution decrees were omitted in the 1964 amendment and replaced by Section 13(1A), which permitted either party to seek dissolution where there had been no restitution of conjugal rights (or resumption of cohabitation) for the statutory period (originally two years, reduced to one year by Act 68 of 1976).

Despite these amendments, the court emphasized the established interpretive principle that provisions of the same enactment must be read harmoniously. It held that Section 13 could not be interpreted so as to render Section 23(1)(a) otiose. If Parliament had intended to eliminate the protective bar in Section 23(1)(a) from applying to Section 13(1A), it could have expressly done so when amending Section 13 or by amending Section 23(1)(a) itself. Thus the amendment to Section 13 must be read subject to the limitations of Section 23(1)(a).

On the facts, the court examined two separate but related questions:

Desertion: The court noted the maintenance decree (O.S. No. 44 of 1972) which was decreed on 5-4-1974 and became final (no appeal). That decree found the wife's allegations of being driven out and ill-treated to be true, and established she was entitled to live separately. On that basis the court held the allegation of desertion by the wife was disproved.
Entitlement to divorce under Section 13(1A): While the statutory condition of non-resumption/non-restitution for the requisite period was satisfied (the parties had not lived together for the relevant period), the court examined whether the husband could obtain relief in light of Section 23(1)(a). The court found that after the decree for restitution of conjugal rights (obtained by the wife under Section 9), the husband not only failed to comply but committed positive acts of ill-treatment and ultimately drove the wife away. This constituted conduct amounting to taking advantage of his own wrong. Because Section 23(1)(a) requires that a petitioner must not be taking advantage of his or her own wrong for the purpose of obtaining relief, the respondent-husband was barred from the relief he sought under Section 13(1A).

The court considered and distinguished authorities cited by the parties: it adopted the view in Dharmendra Kumar that Section 23 applies to Section 13(1A) and relied on M. Someswara v. Leelavathi as an example where relief was refused because of positive acts of ill-treatment. The Punjab decision (Bimla Devi v. Singh Raj) — which held mere non-compliance would not of itself be a "wrong" disentitling relief — was distinguished on the basis that in the present case there were fresh and positive wrongful acts after the decree.

On the cumulative analysis (final maintenance decree showing justified separation, and the husband's post-decree misconduct), the court concluded that the respondent was not entitled to divorce under Section 13(1A) because he was attempting to take advantage of his own wrong in contravention of Section 23(1)(a).

Holding and Implications

Core Ruling: The appellate court allowed the appeal and dismissed O.P. No. 16 of 1976 (the husband's petition for divorce). The opinion records: "Appeal allowed" and "No costs."

Legal Implication (as expressed in the opinion): The court held that amendments to Section 13 did not negate or supersede the applicability of Section 23(1)(a). Even after the insertion of Section 13(1A) (and the later reduction of the statutory period), a petitioner seeking divorce under Section 13(1A) remains subject to the bar in Section 23(1)(a) — i.e., the petitioner must not be taking advantage of his or her own wrong or disability in seeking relief. Where there are fresh positive acts of wrongdoing after a decree for restitution (such as ill-treatment and driving the spouse away), the petitioner can be disentitled to relief.

Direct Consequence for the Parties: The husband is denied a decree of divorce under Section 13(1A); the wife's earlier maintenance decree (O.S. No. 44 of 1972) stands as a final determination supporting her entitlement to live separately and negating a charge of desertion against her.

The opinion does not state that it establishes a novel binding precedent beyond applying and reaffirming the principle that Section 23(1)(a) operates in relation to Section 13(1A); it relies on and follows existing precedents and statutory interpretation to reach the decision.

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Ganta Lakshmi v. G.V.R.K Sarveswara Rao .

1. This appeal arises out of the order of the subordinate Judge, Rajahmmundry made on 8-2-1979 for divorce at the instance of the husband.

2. The wife is the appellant. The parties were married in 1960 and they lived happily for 6 years. Trouble began when the third child was born in the Mission Hospital at Rajahmundry. In view of the health of the wife, the Doctors advised that she should not have any more children and suggested in the circumstances that it is better for the husband to undergo vasectomy operation. The husband resented the idea and immediately left for his place Konthamuru leaving the wife and the new born in the Hospital. R.W. 2 the father of the wife took her and the child to his place vedisileru. Sometime thereafter the wife filed O.P. No. 159 of 1967 for restitution of conjugal rights. The petition was allowed on merits on 27-10-1971. The order of the O.P. is Ex. A-2. According to the wife there were some attempts of mediation even during the pendency of the petition for restitution of conjugal rights that she went to the husband's place konthamuru and lived for 15 days after the decree in O.P. No. 159 of 1967, that during that period she was ill-treated by the husband and her mother-in-law that she and her children were kept in a separate room and they were given some paddy for cooking their food separately and even that was discontinued after some time and she was finally driven out of the house and that she had no alternative but to go and live with her parents at -Vadisileru. She filed O.S. No. No. 44 of 1972 for maintenance under S. 18 of the Hindu Adoptions and Maintenance Act alleging cruelty and desertion.. the suit was decreed on 5-4-1974 under Ex. A-3 and a sum of Rs. 100 was awarded to wards maintenance for the wife and three children.

3. Thereafter the husband filed the present petition O.P. No. 16 of 1976 out of which this appeal arises for divorce under S. 13 (1A) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) claiming that the parties had not lived together fotr 2 years the decree for restitution of conjugal rights, that there were no chances of reconciliation and that he was not guilty of any wrong acts disentitling him to the relief. He also alleged that the wife was guilty of desertion.

4. The wife filed a written statement denying both the allegations among other issues, the trial Court framed the following issues:-

(1) Whether the parties lived together after the decree for restitution of conjugal rights and:

(2) whether the husband was taking advantage of his own wrong and whether the wife was guilty of desertion.

On both the issues the trial Court held in favour of the husband. The Court found that the parties did not live together after the decree for restitution of conjugal rights, that the wife never joined the husband that her story that she was driven out by the husband is not true and that the husband has committed no wrong disentitling him to the relief under section 13 (1A) of the Act. And that the wife was also guilty of desertion. On these findings the Court granted a decree for divorce.

5. On behalf of the appellant, it is mainly contended that the evidence on record clearly establishes that the husband made it impossible for the wife to live with him, that he and his mother were ill-treating her that she was actually driven from the house by the husband subsequent tot he decree for restitution of conjugal rights and that he cannot take advantage of his own wrong to claim dissolution of marriage. It is also urged that the decree in the maintenance suit which had become final is a complete answer tothe allegation of desertion by the husband.

6. We will take up the allegation as to desertion first. The decree for restitution of conjugal rights was passed on 27-10-1976 as evidence from Ex. A-2 Shortly thereafter the wife filed O.S.No. 44 of 1972 for maintenance on the ground that she is entitled to live separately on account of the cruelty meted out to her by the husband. Obviously the suit was filed in 1972, and the allegations were that she was driven out of the house and that she was ill-treated by the house and that she was ill-treated by the husband. The suit was decreed on 5-4-1974 finding the allegations to be true. In these circumstances, there can be no question of any desertion on the part of the wife. The decree for maintenance had become final as there was no appeal against the decree. From the facts it is clear that the wife was living away from the husband from 1972 due to the illtreatment of the husband and a competent Court had held that she was entitled to live separately. In these circumstances we fail to see how the wife was guilty of desertion. The present petition for divorce was filed in 1976. In view of the maintenance decree in O.S. No.44 of 1972 which had become final between the parties the ground of desertion on the part of the wife stands disproved.

7. The more important question is whether a decree can be granted under section 13 (1A) of the Act in the circumstances of the case, Admittedly the parties have not lived together for two years after the decree for restitution of conjugal rights. Therefore the requirements of section 13 (1A) are satisfied. But the question is whether he is entitled to the relief by virtue of this subsequent conduct in view of the provisions of section 23 (1) (a) of the Hindu marriage Act. It is contended on behalf of the respondent-husband that section 23 (1) (a) has no application to proceedings under section 13 of the Act subsequent to the amendment of section 13 by Act 44 of 1964 and Act 68 of 1976.

8. To appreciate this contention, it is necessary to refer to a few relevant sections of the Hindu marriage Act.

9. Section 9 which deals with the restitution of conjugal rights is as follows:-

"9 (1). When either the husband or the wife, has without reasonable excuse withdrawn from the society of the other the aggrieved party may apply by petition to the District Court, for restitution of conjugal rights and the Court, on being satisfied of the truth of the statements made in such petition and that there is not legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly"

"9 (2) xx xx xx xx"

Section 13 prior to its amendment reads:-

"13(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 decree of divorce on the ground that other party:-

(i) to (vii) xx xx xx

(viii). Has not resumed cohabitation for a space of two years or upwards after the passing of a decree for conjugal separation against that party:

(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".

10. In 1964 S. 13 was amended by Act 44 of 1964 and Cls. (Viii) and (ix) of subsec. (1) of S. 13 were omitted and section 13 (1A) was inserted:

"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 two years 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 two years or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties".

11. This section was further amended by act no. 68 of 1976 by which the period of two years was altered as one year.

12. The only other relevant section is S. 23 which is as follows:

"23. (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-Cl. (Ii) of S. 5) is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief and

(b) to (d) xx xx (8) 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".

13. It is clear from the various amendments made in the provisions of S. 13 that the parliament thought it fit to liberalise the grounds for divorce. Under the unamended S. 13 Cl. (Ix) enabled only the party who obtained a decree for restitution of conjugal rights to apply for divorce on the ground that the other party has failed to comply with the decree for the period mentioned therein. The defaulting party against whom the decree for restitution of conjugal rights was passed would not move the Court for decree of divorce. Sub-sec-tion (ix) of S. 13 was omitted by the 1964 amendment and S. 13 (1A) was introduced under which either party to the marriage has been given a right to present a petition for dissolution of marriage by decree of divorce on the ground 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 the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. By amending act 68 of 1976 the period of 2 years was reduced to one year. A further S. 13 (b) was also introduced providing for dissolution of marriage with the minimum of rancour and hostility and the maximum of humanity".

14. But then the question is how far have the amendments gone? Has section 23 (1) (a) to be treated non-existent for the purpose of S. 13? It is the accepted rule of interpretation that two provisions of an enactment should be harmoniously construed to give meaning to both the provisions S. 23 (1) (a) says that even if any of the grounds for granting the relief exists the Court should grant relief only and not otherwise, when the petitioner is not taking advantage of his or her own wrong or disability for the purpose of such relief, the amendment to S. 13 must be limited to the extent to which the amendments have been made. They cannot be given an extended operation. S. 13 cannot be taken out of the limits of S. 23 (1) (a). If it were otherwise the parliament would have added the words "not withstanding anything to the contrary" in s. 2 (1) (a) (23 (1) (a) ?) or would have been suitably amended S. 23 (1) (a) itself, as it was well aware of the provisions of S. 23 (1) (a) when S. 13 was amended. If the interpretation put by the learned counsel for the appellant is accepted, S. 23 (1) (a) would be rendered otiose and nugatory. We are of the view that before and after the amendment of the Hindu marriage Act, the provisions of S. 13 are subject to provisions of S. 23 (1) (a) of the Act.

15. Presently we are concerned with a case where a decree for restitution of conjugal rights was obtained by the appellant-wife under S. 9 of the Act on the ground that the husband had without reasonable cause withdrawn from her society. A decree for restitution of conjugal rights was granted to the wife. After the decree, the husband not only, not complied with the decree, but did positive acts by ill-treating her and finally drove her away from the house. It is not a case of mere non-compliance of the decree, but fresh positive acts of wrong. We, therefore hold that the respondent is not entitled to the relief under S. 13 (1A) of the Act.

16. In Dharmendra Kumar v. Usha Kumar., in considering the question whether the petitioner there was guilty of any wrong disentitling her to the relief under s. 13, the Supreme Court observed as follows (at P. 2219):-

"The grounds for granting relief under S. 13 including sub-sec. (1A) however continue to be subject tot he provisions of S. 23 of the Act'.

It was also held that in order to be a wrong within the meaning of s. 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".

17. In M. Someswara v. Leelavathi, AIR 1968 Mys 274 the Mysore High Court refused to grant the relief in view of the provisions of S. 23 (1) (a) of the Act on the ground that apart from non-compliance of the decree, the petitioner therein was guilty of positive acts of illtreatment and that the party cannot take advantage of his or her own wrong.

18. The learned counsel for the petitioner relied upon a decision of hte punjab High Court in Bimla devi v. Singh Raj, . After an exhaustive discussion of all the provisions, the punjab High Court has held that a mere non-compliance of the decree for restitution of conjugal rights cannot be said to be a wrong as to disentitle the parties for seeking a divorce under S. 13 (1A) because of the provisions of S. 23 (1) (a) of the Act and that it must be proved that the advantage of the wrong mentioned in S. 23 (1) (a) should be an advantage of their own wrong, foundation of which was laid after the decree for restitution of conjugal rights was passed. In effect what the punjab High Court said was that there must be fresh acts of wrong or disability subsequent to the passing of the decree. This decision is easily distinguishable from the facts of the present case. In this case, the respondent had illtreated the wife subsequent to the passing of the decree and drove her away from the house.

19. We are therefore of the view that the respondent is not entitled to the relief in view of his own conduct and accordingly we decline to grant the relief in view of the provisions of S. 23 (1) (a) of the Act.

20. In the result we allow the appeal and dismiss the application o.p no 16 of 1976 seeking divorce. No. Costs.

21. Appeal allowed.

Ganta Lakshmi v. G.V.R.K Sarveswara Rao .

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's (Wife's) Arguments

Respondent's (Husband's) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ganta Lakshmi v. G.V.R.K Sarveswara Rao .

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