Nain, J.:— This is an appeal by the original petitioner against the judgment and order dated October 14, 1968 of a Judge of the Bombay City Civil Court dismissing his petition for divorce under s. 13(1A) of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Hindu Marriage Act”). The petitioner is the husband. The respondent is the wife.
2. The brief facts leading to this litigation are that the petitioner was married to the respondent on February 22, 1961 in Nagpur according to Hindu Vedic rites. On June 26, 1964, the respondent filed in the Court of the learned Civil Judge, Senior Division, Nagpur, a petition for judicial separation inter alia under s. 10(1)(a) and (b) of the Hindu Marriage Act on the grounds of desertion and cruelty. On January 12, 1965 a decree for judicial separation was passed in favour of the respondent. There are fortunately no children of the marriage. Thereafter in 1968 the petitioner filed in the Bombay City Civil Court the petition from which the present appeal arises under s. 13(1A) of the Hindu Marriage Act praying for divorce on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period upwards of two years after the passing of the decree for judicial separation. The said petition was dismissed by the Bombay City Civil Court on October 14, 1968 by the order under appeal. Against the said order of dismissal the present appeal has been filed by the petitioner husband in this Court against his wife the respondent.
3. The ground given by the learned Judge for the dismissal of the petition is that s. 13(1A) of the Hindu Marriage Act is controlled by s. 23 of the said Act and that by virtue of the said provision if any of the grounds for granting relief exists the Court shall decree such relief provided the petitioner is not in any way taking advantage of his own wrong or disability for the purpose of such relief. The learned Judge proceeds to observe that the decree for judicial separation in favour of the respondent was passed on the ground of cruelty and because the respondent was ill-treated. The learned Judge took the view that after the decree for judicial separation in favour of the respondent was passed the petitioner should have assured the respondent that he would treat her well, and that as there was no evidence before the Court that the petitioner had at any time assured the respondent that he would treat her well and that as there was also no evidence that he had asked her to come back and stay with him and she had refused, the petitioner was taking advantage of his own wrong and was not entitled to relief under s. 13(1A). The learned Judge appears to have taken the view that a decree for judicial separation having been passed against the petitioner in consequence of his own wrong the petitioner must remedy that wrong to become entitled to a decree for divorce, otherwise in applying for a decree for divorce he was taking advantage of his own wrong which led to the decree of judicial separation in favour of his wife.
4. The respondent wife remained absent and was ex parte in the Bombay City Civil Court. She is also ex parte here. As I found that an important question might arise as to whether after a decree for judicial separation on the ground of cruelty was passed in favour of the respondent wife the petitioner husband was under any obligation to remedy that wrong and to give an assurance to the respondent that she would no longer be treated with cruelty or that she would be treated well and to call upon the respondent to come back and live with him, I requested Mr. M.L Pendse to appear amicus curiae and argue the matter. He has been good enough to do so and has rendered valuable assistance in the matter.
5. There appears to be little doubt that under s. 23(1)(a) of the Hindu Marriage Act it is the conduct of the petitioner after the passing of the decree for judicial separation that is to be taken into consideration in deciding whether the petitioner is or is not in any way taking advantage of his own wrong. In my opinion s. 23(1)(a) has no reference to the past conduct of the petitioner such as cruelty which may have led to the passing of the decree for judicial separation. The wrong or disability referred to in s. 23(1)(a) must be a “wrong or disability for the purpose of such relief” as the petitioner wants in the petition then before the Court and not the wrong of the petitioner which was the subject-matter of the previous petition for judicial separation. The ground for the granting of the relief of judicial separation is the matrimonial offence or wrong of cruelty whereas the ground for the granting of the relief of divorce is that after the passing of the decree for judicial separation, there has been no resumption of cohabitation as between the parties to the marriage for a period of two years or upwards. The reference in that case is to an existing state of affairs between the parties to the marriage, that is that there has been no resumption of cohabitation between the parties for a period of two years or upwards. The reference is not to a matrimonial offence or wrong committed by a party. As I will show a little later the enactment of s. 13(1A) in 1964 is a legislative recognition of the principle that in the interest of society if there has been a break-down of the marriage, there is no purpose in keeping the parties tied down to each other.
6. After the enactment of s. 13(1A) of the Hindu Marriage Act by the Hindu Marriage (Amendment) Act, 1964 the various High Courts have had occasion to deal with the matter. In the case of Laxmibai v. Laxmichand . 1967 70 Bom. L.R 80., the wife had obtained a decree for restitution of conjugal rights in a proceeding instituted by her for that relief. Later the husband initiated proceedings for the dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights for a period of two years or upwards after the passing of the decree for restitution of conjugal rights. There was evidence before the Court to show that the husband had wilfully refused to comply with the decree for restitution of conjugal rights after being called upon to do so. The learned trial Judge was of the view that this was irrelevant. On appeal, my brother Chandrachud, J. held that under s. 23(1) of the Hindu Marriage Act it is open to the Court to refuse to pass a decree for divorce under s. 13(1A) on a petition filed by a party who has refused to resume cohabitation for a period of two years or upwards after the passing of a decree against such person for restitution of conjugal rights. He therefore allowed the appeal and set aside the decree for divorce passed by the trial Court. It is clear that what Chandrachud, J. took into consideration was the conduct of the petitioner husband subsequent to the passing of the decree for restitution of conjugal rights inasmuch as he refused to comply with the decree of the Court and not his conduct which led to the passing of the decree for restitution of conjugal rights.
7. In the case of Ishwar Chander v. Pomilla Ahluwalia . [1962] A.I.R Punj. 432., there was a decree for restitution of conjugal rights in favour of the husband against the wife. After the passing of the decree for restitution of conjugal rights the husband took further proceedings for having the marriage declared a nullity on the ground of fraud thus making it impossible for the wife to comply with the decree for restitution of conjugal rights. It was held by Falshaw C.J of the Punjab High Court that it was impossible for the wife to make any effort to comply with the decree for restitution of conjugal rights as long as the husband was proceeding with the petition for nullity of the marriage. The husband ought at least to have waited for a period of two years after the dismissal of his nullity proceedings before he could legitimately claim for divorce. The husband was therefore refused relief under s. 13(1)(ix) by virtue of s. 23(1). Here again, the Court took into consideration the conduct of the husband subsequent to the passing of the decree for restitution of conjugal rights in his favour which disentitled him to a decree for divorce. I might observe that this was a case prior to the passing of s. 13(1A) in 1964 and was under the repealed cl. (ix) of s. 13(1).
8. In the case of Chaman Lal v. Mohinder Devi . [1908] A.I.R Punj. 287., there was a decree for restitution in favour of the wife. The husband refused to comply with the decree though called upon to do so. He thereafter filed a petition for divorce under s. 13(1A). His petition was however dismissed and the High Court took the view that the husband was taking advantage of his own wrong and that a decree for restitution of conjugal rights having been passed against him it was his duty to make efforts to comply with the said decree. He could not avoid the restitution of conjugal rights for two years after the decree and then make a petition for divorce on that ground, thus taking advantage of his own wrong. The conduct of the husband which disentitled him to a decree for divorce was his conduct subsequent to the passing of the decree for restitution of conjugal rights.
9. In the case of M. Someswara v. Leelavathi . [1968] A.I.R Mys. 274., there was a decree for restitution of conjugal rights in favour of the husband. In compliance with the decree the wife went and lived with the husband for a few days. She however left him after the few days alleging that he was cruel. The husband subsequently filed a petition for divorce under s. 13(1A). The wife proved her allegation of cruelty. Relief was refused to the husband on the ground that by being cruel to his wife and preventing her from complying with the decree for restitution of conjugal rights and thereafter applying for divorce, he was taking advantage of his own wrong. Here again, it was the conduct of the husband in whose favour the decree for restitution of conjugal rights had been passed subsequent to the passing of the decree that was taken into consideration.
10. The Hindu Marriage Act was passed in 1955. Prior to that there was for some time statutory provision for judicial separation and divorce in the States of Bombay and Madras, but we are not concerned with that aspect of the matter. Statutory provision for judicial separation and divorce was introduced in the whole of India for the first time in 1955. Section 10 of the Hindu Marriage Act provides six grounds for a decree for judicial separation. Three of the grounds, namely, desertion, cruelty and isolated acts of adultery are grounds which arise from a wrong committed by one of the parties to the marriage. The remaining three grounds, namely, one of the parties suffering from leprosy or venereal disease or insanity may arise without a wrong committed by a party to the marriage. In all the six cases s. 10(2) provides that after the passing of the decree for judicial separation the Court may rescind the decree in proper cases. This may be if the Court is satisfied that the desertion is over, the cruelty is ended or even that the party guilty of isolated acts of adultery has given up the committing of the matrimonial offence, or in case of diseases that there has been a cure.
11. Under s. 13(1) of the Hindu Marriage Act the Court may grant divorce either on account of a specified matrimonial offence, a disease or a party to the marriage not being heard of for a period of seven years, which may be due to no fault of his as where he might be a prisoner of war. The matrimonial offences for which divorce may be granted are habitual living in adultery, conversion to another religion or renunciation of the world such as entering into Sanyasa. The last three would be acts of volition of a party to the marriage and may conveniently be called matrimonial offences.
12. Prior to the amendment of the Hindu Marriage Act in 1964, there were two more grounds on which the Court could grant divorce but only at the instance of the wronged party. Those grounds were that the party against whom a decree for judicial separation had been passed had not resumed cohabition for a space or period of two years or that the party against whom a decree for restitution of conjugal rights had been passed had failed to comply with the decree. These grounds were contained in s. 13(1)(viii) and (ix) respectively. These provisions have however been repealed and instead s. 13(1A) has been enacted which gives a right not only to the party in whose favour the decree for judicial separation or restitution of conjugal rights has been passed, but also to the other party against whom such decree has been passed to apply for divorce. If the decree is for judicial separation, all that is required is that there should have been no resumption of cohabitation as between the parties to the marriage for a period of two years or upwards. If the decree is for restitution of conjugal rights, all that is required is that there should have been no restitution of conjugal rights for a period of two years or upwards. Section 13(1A) refers to existing states of affairs and has no reference to a wrong committed by a party to the marriage or by whom the wrong is committed. This provision is totally different from the provisions of s. 13(1)(viii) and (ix) which gave the right to apply for divorce only to the wronged party and not to the wrong-doer. It is undoubtedly true that any relief granted by the Court will have to take into consideration the conduct of the party applying for divorce by virtue of s. 23(1). But such conduct must, in any case after the amendment of s. 13 in 1964, necessarily, be the conduct subsequent to the passing of the decree for judicial separation or restitution of conjugal rights, and not prior conduct. There is also no obligation to remedy the wrong which led to the decree for restitution of conjugal rights or judicial separation.
13. In England the development of law has been partly by judicial decisions. These are embodied in the Common Law of England. In the earlier cases, it was laid down that the discretion to grant divorce should be exercised in favour of a guilty petitioner only where the petitioner had married again, reasonably believing the other spouse to be dead or that the marriage had been finally dissolved or that the petitioner had been compelled by her husband to lead a life of prostitution or that the petitioner's adultery had been condoned and had not conduced to the respondent's adultery or where the wilful neglect or misconduct of the respondent husband caused or conduced to his wife's adultery. These principles are set out in Rayden on Divorce, 1967 (Tenth) edn. at p. 319, para 61 as old principles. These principles have however not been followed in more recent cases. Rayden sets out the new principles at p. 320, para 62, in the same edition:
“The Court, in exercising its discretion, ought to look at every aspect and circumstance of the case, including the consequences which would ensue from the refusal of a decree; and should have regard to:— (1) The position and interests of the children of the marriage; (2) the interest of the party with whom the petitioner has commuted adultery, with special regard to their future marriage; …(3) the question whether, if the marriage be not dissolved, there is a prospect of reconciliation between the spouses; (4) the interest of the petitioner, particularly as regards allowing him to remarry and live respectably; (5) the interest of the community at large, judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down.”
14. The passage in para 62 from Rayden on Divorce quoted above has been taken from the speech of Viscount Simon L.C in the Judicial Committee of the House of Lords in the case of Blunt v. Blunt . [1943] A.C 517..
15. In my opinion, when the Legislature amended s. 13 in 1964 by deleting cls. (viii) and (ix) of s. 13(1) which gave right to apply for divorce only to the party in whose favour a decree for judicial separation or restitution of conjugal rights had been passed and not to the other party, and by enacting s. 13(1A) which conferred a right on both the parties, the Legislature was giving expression to new and more liberal thinking on the subject of divorce. The amended section provides for divorce where the prospect for reconciliation has faded which is evidenced by non-resumption of married life for two years or upwards after the decree for judicial separation or restitution of conjugal rights. The amendment takes note of the interest of the community in not maintaining a union which has utterly broken down and the interest of the petitioner as regards allowing him to remarry and live respectably. Section 13(1A) refers to existing states of affairs, namely, that in case of a decree for judicial separation, there has been no resumption of cohabitation as between the parties to the marriage for a period of two years or upwards and in the case of a decree for restitution of conjugal rights there has been no restitution of conjugal rights for a period of two years or upwards. The provision does not refer to a matrimonial offence or a wrong. It provides for maintenance of a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of an union which has utterly broken down and on preventing a party to the marriage from remarrying and living respectably. I have no doubt that in granting relief under s. 13(1A) the Court will and must take into consideration s. 23(1) and consider the conduct of the petitioner subsequent to the passing of the decree for judicial separation or restitution of conjugal rights and not grant relief to a party who is taking advantage of his own wrong. It has, however, no reference to remedying the wrong which led to the decree for judicial separation or restitution of conjugal rights.
16. That raises the question as to whether, as the learned Judge in the order under appeal states, the petitioner in this case was under any obligation to assure the respondent that his previous cruelty would cease and that he would treat her well or to ask her to come back and stay with him. I am afraid, I am unable to spell out any such obligation against the petitioner from s. 13(1A). If there is no such obligation on him, there is no question of his being in the wrong by not carrying out such obligation such as to disentitle him to the relief of divorce. All that s. 13(1A) requires is that in fact there has been no resumption of cohabitation between the parties for a period of two years or upwards. This condition has been satisfied and, in my opinion, there is nothing to disentitle the petitioner from getting the relief of divorce. In the result, the order dated October 14, 1968, is set aside and there will be a decree for dissolution of marriage by divorce in favour of the petitioner. There will be no order as to costs.
17. Order set aside.