1. A question of considerable importance but of some difficulty arises in this appeal, whether the mere fact of non-compliance by a husband of the decree for restitution of conjugal rights obtained by a wife would per se amount to taking advantage of his own wrong or disability so as to disable him from claiming the relief of divorce after lapse of two years of the said decree. The question arises in the following circumstances:
The marriage of petitioner-husband with the respondent was solemnized on May 29, 1967 at Ahmedabad. A son was born of this wedlock on March 6, 1968. The respondent-wife filed Petition being J~Undu Marriage Petition No. 66 of 1972 in the City Civil Court at Ahmedabad for a decree of restitution of conjugal rights under S. 9 of the Hindu Marriage Act, ,1955., The Court granted the decree as prayed for by its order of Sept. 24, 1973. It is common ground that this decree was not complied with or satisfied by the petitioner-husband, who immediately thereafter left for United States and returned only after the expiry of two years. Immediately after his return -he filed an application for a decree of divorce under & 13 (I-A) (ii) of the aforesaid Act.
2-3. This petition was resisted by the respondent-wife, contending, inter alia, that the Court should not exercise its discretion by granting a decree of divorce as prayed for since the petitionerbusband was trying to take advantage of his own wrong by intentionally avoiding the decree for restitution - of conjugal rights passed in her favour.
4. On the aforesaid pleadings, the learned City Civil Judge raised necessary issues. On hearing the evidence of the parties. the learned Judge, after referring the relevant case law on the point, and on appreciation of the evidence, found that the petitioner-husband had no iniention after the decree of restitution of conjugal rights was passed to co-habit with the respoodent and within aperiGd of less than,& inonth from the date of the decree, thier petitioner left for the United States and returned only five days before the present petition, No correspondence ensued between the parties while the petitioner was in the States, nor he furnished his address in the States to the respondent-wife. In that 10 state of evidence, the learned Judge was of the opinion that this conduct on the part of the petitioner-husband amounted to taking advantage of the wrong committed by him and, therefore, the Court should not exercise its discretion as the case squarely fell within S. 13(I-A)(ii). The learned Judge, therefore, by his order of July 26, '1976 dismissed the petition of the husband. It is this judgment and decree which has been challenged in this First Appeal.
5. The crux of the problem is, whether the non-satisfaction by a husband of the decree for restitution of conjugal rights obtained by a wife would per se amount to taking advantage of his own wrong which will disentitle him to a decree for divorce under S. 23. It is common ground that the petitioner-husband applied for a decree of divorce because there had been no restitution of conjugal rights after - passing of the decree in favour of the respondent-wife herein on September 24, 1973. This petition for divorce has been made under S. 13(I-A)(H) of the Hindu Marriage Act, 1955. The said clause has been brought on the statute book by Hindu Marriage (Amendment) Act of 1964, which repealed cls, (viii) and (ix) of sub-see. (1) of S. 13. The law, as it stood before the amendment in 1964,' entitled only a party aggrieved by non-compliance of a decree for judicial separation or a decree for restitution of conjugal rights. After their repeal, sub-7section (I-A) has been brought on the statute book which now permits either party to marriage, whether solemnized before or after the commencement of this Act, to present petition for dissolution of marriage by a decree-of divorce on the ground of non 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, or where there has been no restitution of conjugal rights between the parties to the marriage for a period of two years or upwards after the decree for restitution of conjugal rights. On t.he plain reading of the law. as it stood before the amendment and after the amendment in 1964, the position becomes very clear that Irrespective of the fault of the party to a decree for restitution of conjugal rights or a decree for judicial separation, either party can present a petition for dissolution of marriage by a decree of divorce on the ground that the period of two years or more has elapsed without the decree in question being complied' with. The Legislature has wisely not amended S. 23 of the Hindu Marriage Act after the repeal of cls. (viii) and (ix) and substitution of sub-section (1-A) in the statute book. The effect is that either party to the decree of judicial separation or restitution of conjugal rights can move the Court for dissolution of marriage by a decree of divorce irrespective of the consideration that who is at fault for noncompliance of the decree in question remaining unsatisfied for a period of two years or upwards, the Court is still Invested with a discretion to refuse such a decree if the conduct of the party applying for dissolution of the marriage is such that it would be permitting him to take advantage of his own wrong. No doubt, the contention that If either of the spouse to the marriage who flouts the decree for restitution of conjugal rights or judicial separation for the statutory period of two years or more, which may be a ground for the decree of divorce under the law, is permitted to apply for dissolution of the marriage by such a decree, it would be tantamount to giving premium for his own wrong and the Court must view such disobedience of the writs of the Court by penalising the party by refusing to give a decree for the dissolution of the marriage. This contention appears to have a great force in it and it had appealed to the Bombay High Court in Laxmibai Laxmichand v. Laxmichand Ravaji, AIR 1968 Bom 332 where in a petition for divorce by a hugband who had failed to satisfy the decree for restitution of conjugal rights. obtained by a wife, Chandrachud J. took the view that there is no waxrant in the language of sub-section (1-A) of S. 13 for holding that it confers an absolute or unrestricted right on a party to apply for and obtain a decree of divorce, but it is obligatory on the Court to consider whether the provisions mentioned in subsec, (1) of S. 23 are satisfied or not since S. 23 is an overriding provision; and that in the facts and circumstances of the case before him, there was a wilful default that the decree for restitution of conjugal rights remained unexecuted on account of wilful default on the part of the husband and, therefore, he was not entitled to a decree for divorce. This view has also commended to the Punjab High Court in Chaman Lal v. Mohinder Devi, AIR 1968 Punj 287, where the husband having been found not making any effort to comply with the decree for restitution of conjugal rights obtained by his wife was held to be disentitled. for a decree of divorce as his conduct amounted to taking advantage of his own wrong, the Court refused to exercise the discretion to grant a decree for divorce under S. 23(1) of the Hindu Marriage Act.
6. On the other hand, in slightly different context of the husband refusing to cohabit with his wife for a period of two yearis or more after the decree for judicial separation being obtained by the wife on the ground of desertion, the learned Single Judge of the Bombay High Court in Madhukar Bh-askar v. Sarala Madhukar AIR 1973 Bom 55 held that the husband is under no obligation to assure the other party that his previous cruelty would cease and that he would treat her well or to ask her to come and stay with him. and a fortiori there cannot be any question of his being in the wrong by not carrying out such obligation such as to disentitle him to the relief of divorce. Justice Nain as he then was, in that context noted the distinction between the ground available to an aggrieved party to the marriage for obtaining the relief of judicial separation viz. the matrimonial offence of wrong or cruelty and the ground for obtaining the relief of divorce after the decree for judicial separation, namely non-resumption of cohabitation for the statutory period. He emphasised the legislative recognition of the rationale underlying the amended S. 13(IA) that the interest of the society is not served in keeping the parties tied down to each other when thereis irreconcilable breakdown of a marriage. He distinguished the decision of Justice Chandrachud in Laxmibai Laxmichand Shah's case AIR 1968 Bom 332 (supra) by pointing out that what weighed with the Court in that case was not the conduct which led to the passing of decree for restitution of conjugal rights and what really impressed the Court was the conduct subsequent to the decree. He succinctly set out the rationale which prompted the Legislature to put sub-s. (1A) of S. 13 on the statute book in 1964 in the following terms:
"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 to wiwso favour.s, decree for judicial separation or restitution of conjugal had been passed not to the Moor party and by anacting S. 13(1)-* whieb mdeired a r*M an both the parkes; doe Legislatwre was giving to new and more liberal subject of divorce-, The as provides SDr divorce wbare Ike pffespect for recondlixtion has faded which is evidenced by non-resumpbus at sawried hit for two years or upWas& aftm the decree for judicial sepatatke er res*ufton of conjugal rights. Me assonAmant takes nake of the inte#" of tiae, covemunity in not maintanking a union wkich hm, utterly broken demo nA Vw im6eresk ok the petitioner as reg*,ds allowing bini to remariy and Live vmpctaWW. Sectidw 13(IA) refers to existim staft a& aftirs namely that Isk ewe of a &wee fm judiaml separation Omm has bean me revAmption of cohabiWon as kekvmm the parties to the awamiqp Im a period of two years or uWards and in the, esse at a decree for restitotim cd ca"tMO rigbis there has been no resdivilm of conjugal rights for a pedod of two years or upwards, The provides does not refer to a matrimonial offence or a wrarg It provides, lor maintemance oi a true balance behween respect for tlx~ bvmbmg sanctity od marriage and the social cuvsid~ions which stake it tafthrary to Public Policy to innot on the maintem-kee of a unwn which bas, utterly broken down ano on preventing a perty to, thee marriage from rewarryiwg and livimg respectably. I have =a doubt, that in granting relief under & 13 (1A) the Covxt will and must take imte, eoxxideratiou & 23 (1) and consider the conduct of the peUtioner subsequent to the pawing ot the decree of conjugal rigbks. and enot grant relief to a party who is taking advantage of his own wrong- It has however no reference to remedying the, wrong i I to the decree for jtrdicia? separeffori or restitution. of conjugal rights."
Division Bencli of the Bombay High Court in Jethabbai Ratanshi Y. Manabal ilethabbef, AIR IPM Bom 88 reversed the fudgments of both the Courts below and rield that the husband was entitled to get a decree for divorce since he was oxim- 1w obligation to, cohabit with the wi*- ettm the decree -for judicial separation granted the Division Bench furiber held that by the ebange kftow duced by the Amendment Act of the concept of matrimonial wrong or dWability as furnishing a ground for divorce although it continues to ewdst so for as S. 13(1) is concerned stands eKeluded so far as the grounds in S. 13(IA) are concerned. Nathwani, J., speaking for, the Division Bench observed in that oonsection as under (at p. 93 pars. 14):
........ No doubt after a decree for juotal sawation the parties or either of them may make attempts for reconcilia.
tion and even the Court is at the hearing of the petition for divorce enjoined in every case where it is possible so to doto make every endeavour consistently with the nature and circumstances of the case to bring about a econciliation between the parties (see S. 23(2) of the Act). But there is no obligation on either party to make any such atternpL The husband was not guilty of continuing to desert her. Both the Courts below took theview that the wrwg of desertion had continued on the part of the husband as he had made no attempts to bring about a eunion with the wife. Mr. Justice Gante held that after the passing of the decreee o~ judicial separation the wife but not the husband was released from the obligation to coliabit. From his judgment however it does not appear that bis attention was drawn ter the non cohabitation provision in S. 10(2) of the Act and the effect thereof on husbpnd's obligation to cohabit with the wife. Vor the reasons already expressed, the Courts below are in error in taking the view that the husband remained under the obligation to cohabit with the wife and was guilty of continuing to desert her, and therefore, of a wrong within S. 23(1) of the Act."
Mukhi, J. in his concurring opinion referred with approval the decision of Nain, J. in Madhukar Bhaskar heorey's case AIR 1973 BOm 55 (supra) that S. 23(1) will apply to a case of petition wider S. 13 . GA) and the Court must satisfy itself not only about the ground for granting the relief of divorce but also about the disability created by the petitioner by taking advantage of his own wrong. He, however, found that the scope of application of S. 23(1)(a) is limited in such circumstances. He said as under:
11 But the scope of S. 23(1)(e) In relation to the grounds for divorce, as contained in S. 13(IA) must, in my opinion, of necessity and logic be some what Ented. It is not possible to on visage what kind of wrong or dbabiW, would have to be taken -into conobderation. Human ingenuity being wbat It b there Is no doubt that many cans wiK arise where notwithstanding that a ground for divoroe exists there assy bQ something in the conduct of the petitioner which would be so reprehensible " the Court would dwy to such a pe*tioner the relief "by way of diveree on the consideration that the petitioner vM taking advantage of Ids or bar own wrong.
Mukht, J. also advocated Jor soustent changes in the law of divorce so as to keep it in tune with the times. Hei therefore, tried to reconcile S. 23(1) with the amended S. 13(1)(a) of tba Hindu Marriage Act by stating as under:
........ If it was to be insisted upon that even after the marriage has practically broken down and an order for judicial separation has been made or for that matter a decree for restitution of conjugal rights, then the petitioner would have to go throughout the pretence and mechanics of a purported reconciliation, otherwise the Court would not be able to bring to an end an unhappy and ill starred union."
It is true that the dec~ of this Court in AIR 1968 Born 332 (supra) was based on the fact that the petitioner had defied a mandate of the Court by wilful non-complianoe of a decree Jor restitution of conjugal rights. It can never be unreasonable to say that deffimce of a Court's e -er * at all times, to be deprecated and frowned upon. Bui viewed in the light of modern society, it would perhaps not be very realistic to expect a vdle or a husband for the matter to resume cohabitaiion under take threat of a decree.
In my view, the only effect of a decree for restitution of conjagaI rights is to fix 'be blame on the party primarily responsible for the break-down of the marriage and then provide a period for reflection with the hope that a marriage which had foundered may still be redeemed. But once the parties have reached a stage of the ground contained in S. 13(1A)(ii) it will require to be considered by the Court that a point of no return may have been reached at which stage a consideration as to who was to blame becomes irrelevant.
It may be noted that whether noncompliance of -a decree for rectitution of conjgal taken into conaidemtioa tor dw Verpom of S. 23(1) of the Act is aim a maUer on which them is some 4WIermwe 4d Judicial opinion This High Court in AIR 1VU Bom 332 (supra) has held It to be ae. BiA another High Court Uas held that falure to perform a decree Jor'ziestitution ol conjugal rights per so without rn e does not disentitle a gppome to reMd un13 (1A) W of the Act.
7. A Full Benck of DeW E*h Court In Ram Mall v. Gapel Das, JUL (t9nJ I Delhi 6, in simullar facts where the husband, though in default in complyir4g with the decree for restiltdion &T conju~ gal rights obtained by w1k had applied for divorce on the ground that there was no restitution of conjugal figlitg for a period of 2 years or upwards after the decree, rejected this very contention that granting of decree of divorce to a defaulting husband would be tantamount to allowing him to take advantage al his own wrong and abservea as under.
" A decree Aw judkial separmasn arfor restitution ai cmjvWl rigWks naows.sarily presupposes of marital wrong cc has failed to discharge an essential marital obligaliorL Despite Such a Wrong or failure on the part of the delauldngspouise, the legWature ku javex & A&by the amending Act to %e d4gultina spouse to apply for I decree 4d diVGWO if the other conditions mentlewd In sub-a ClA) are fuMle& 740 IWO-Oult such a petitioner by iuvoklqg el 1a) of sub-s. (1) of S. M wozid 1ave tke *fect of deleating the maxilest purpose ol flia amending Act and reducing it to futaflity. A construction which would kad tosuel a result must be avoided. The prsrvWWnv. of S. - 23(1)(a), in out ppinio16 Aboulki be so construed that they operate 1a harmony with those of S. 13 , (1A) IX-ather than in such a manner as may jjav'*~2* effect of nuWlfyiqg the cbanye brouSU about by insertion ol sub-,L' 11A). ]a !. 13 of the Act The underiyUS o'b.
Ject of the, legleWum 3& inmwting sdb.section UA) in , &, 13, seems to be that if tbexe has been no resumption of coUbitation or no restituUm of conjugal righU as between the parCm to t-ne m&=1ag9 jor a period of two years w upwards, aaw the passing of a decree for judicial sepw radon, Or *W TOAltRUM 4W conj"al rights, Aho Vourt *euW awmrAe ~&at tia n1adens between aw M. b"S imdk- of reconciliation and as such it might grant the decree of divorce.The Full Bench. therefore, confirmed the decree of divorce.
8. There are two decisions of our Courb, one by A. D. Desai, J. in Second Appeal No. 106 of 1974, decided on 22-9-1976: (1977 Hindu LR 398) (Guj), Where the husband obtained a decree for restitution of . conjugal rights and the wife having fa!W to comply with the decree for a period of two years or upwards after the passing of the decree applied for dissolution of marriage by a decree of divorce. A. D. Desai, J, in that context said that the relevant factor which the Court must bear in mind is the conduct of the party asking for the relief of dissolution of the marriage subsequent to the pa&sing of the decree for restitution of conjugal rights. He noticed particularly that
"neither the provisions of S. 13(IA) nor S. 23(1)(a) of the Act impose any obligatim on a party applying for divorce, to see that the decree for restitution of conjugal rights is satisfied."I do, not think that this decision cm be of much assistance because the learned Judge said in the context of the facts before him.
9. Another decision Is of T. U. Mehta. J. in First Appeal No. 481 of 1970 decided on 16-2-1973 (Guj). In that case the Wife obtained a decree for judicial separation on the ground that after the solemnization of the marriage the husband had sexual intercourse with a person other than his spouse and since there was no cohabitation between the parties for a period of two years or upwards after the decree for judicial separation the husband applied for dissolution of marriage by decree of divorce. The learned Single Judge having regard to the admitted position that at the relevant time when the petition for divorce was made, the husband continued to reside With his mistress and had two issues -from that relationship. The learned Judge, therefore, found that the husband was trying to take advantage of his own wrong- and, therefore, a -decree for divorce was refused. This also again in terms of its own facts and, therefore, would not be of any assistance to the present problem with which I have been called upon *to deal with.
10. I am of the opinion that though 18. 13 (I-A) as amended in 1964 entitles leven a defaulting - party and not merely Ian aggrieved party to obtairx dissolution of marriage by a decree of divorce if there is no cohabitation for a period of two years or upwards after the decree for judicial separation is passed or if the decree for restitution of conjugal rights is not complied with for the said period, it is the duty of the Court to see under S. 23(1) whether the petitioner under S. 13(IA) is disabled by his conduct subsequent to the decree of judicial separation or decree of restitution of conjugal rights, as the case may be, which may again amount to taking advantage of his own wrong. The contention in the Present case that non-compliance of decree for restitution of conjugal rights per se amounts to such a wrong which would disentitle a defaulting husband to obtain a decree of divorce under S. 231(1) is not well founded since it would have the effect of defeating the manifest legislative intent envisaged in the amendment made -by bringing sub-sec, (1-A) on the statute book after deleting cls. (viii) and (ix) of sub-section (1) of section 13. It cannot be gainsaid that the legislature was very much aware of the provision of S. 23(1) disabling a defaulting petitioner who tries to take advantage of his own wrong from obtaining a decree for divorce and in spite of such an awareness the statute was amended by deleting c1s. (viii) and (ix) and bringing sub-see. (1-A) on the statute book so as to entitle even a defaulting party to a marriage after passing the decree of judicial separation or restitution of conjugal rights, as the case may be, to obtain a decree for divorce, if per se non-compliance of a decree for restitution of conjugal rights is to be considered as a wrong disentitling a defaulting party for obtaining a decree of divorce under Section 23(1), the entire purpose of bringing sub-section (1-A) on the statute book is lost. The Court has, therefore, got to reconcile the provisions contained in S. 13(1-A) and S. 23(1) of the Hindu Marriage Act and in such an attempt of reconciliation the Court hag to bear in mind the well-known principle of interpretation that the Court should always act on a broader construction for advancing the legislative intent rather than preferring a narrow meaning which may fail to effectuate the manifest legislative purpose. The background of the amendment, the rationale underlying therein, the mischief intended to be eradicated are the apparent factors which the Court must bear in mind while exercising preference between the narrower and broader interpretation of a particular provision of a statute. Before the amendment in 1964, it was only the aggrieved party to a decree of a judicial separation or restitution of conjugal rights which was entitled to pray for dissolution of marriage by a decree of divorce. The legislature recognized the modern trend of the Society where on account of ever changing social, economic and cultural concept of the community it decided to amend the low of divorce so as to keep it in tune with the change in times. In the ultimate analysis the framers of the law of marriage and divorce have to adopt a realistic and human approach and to compel the parties to stick to the facade of marriage even though the union has completely broken down and where there is no scope for reconciliation, to compel them to do so would amount to not only refusal to recognize a tragic fact of life but would also not serve the interest of the Society as it would perpetrate the hypocrisy and illegal, relationship for the unfortunate spouses. Viscounts Simon L. C. in Blunt v. Blunt (1942) 3 All E. R. 76 recommended the considerations which should prevail with the Courts in matrimonial matters in the following terms:
........ I would add a fifth of a more general character, which must indeed be regarded as of primary importance, viz., the interest of the community at large, to be 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. It is noteworthy that in recent years this last consideration has operated to induce the Court to exercise a favour able discretion in many instances where in an earlier time a decree would certainly have been refused..........
It is. no doubt with this spirit, I ain of the opinion, that the recent amendment in 1964 has been brought in sub see. (1-A) on the statute book. I think Justice Nain was right when he stated that the conduct , which should weigh under S. 23(1) cannot have reference to remitting the wrong which led to the decree for judicial separation or restitution of conjugal rights but it must be in the nature of subsequent conduct of the petitioner which may be. so reprehensible or repulsive to the conscience of the Court that to grant a decree to such party committing such a wrong would 1978 Guj./6 V G-21 K. Mehta J.) [Prs. 10-121 Guj. 81 be giving premium for such a wrong. In that view of the matter, I am of the opinion that mere non-compliance with the decree of restitution of conjugal rights would per se not constitute such a conduct, and in order that a defaulting party to a decree of restitution of conjugal rights is deprived of the benefit which is sought to be conferred on him under the amended sub-see. (1-a) of section 13, his subsequent conduct must not be mere non-compliance but must amount to a positive' misconduct of such repulsive or of shocking nature as it can be said that he is trying to take advantage of his own wrong. This will be always a question of facts in each case.
11. Applying this principle. nothing has been found except the fact that the petitioner-husband herein had left for United States after the decree for restitution of conjugal rights had been passed in favour of his respondent-wife and that he arrived only a few days before he applied for the dissolution of the marriage. This very fact, in my opinion, is sufficient to warn the Court that the marriage has foundered and there was no scope for reconciliation. I also made an attempt to see that the parties come together but unfortunately this was of no avail. If merely the non-compliance of a decree of restitution of conjugal rights is not per se a good defence under S. 23(1) as I have held above it is indeed, the result is that the petitioner husband herein should get a decree for divorce by setting aside the judgment and decree of the trial Court.
12. The result is that this appeal is allowed and the decree for divorce as prayed for is granted. As regards the permanent alimony to be paid to the unfortunate wife and son the parties have entered into compromise and the consent terms have been filed in accordance of which an order for permanent alimony is to be made. The appeal is. therefore, allowed and the judgment and decree of the trial Court is set aside and a decree for divorce as prayed for is granted to the petitioner-husband and the alimony is ordered to be paid as agreed upon between the parties. There should be no order as to costs in this appeal. The alimony amount is to be deposited in the Court by 14-3-1977 and will be paid to the wife on the Court passing the order on 15-4-1977.
13. Appeal allowed.
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