D.K Seth, J.:—
Introduction: A very important question with regard to the matrimonial matter has since been raised by Mr. Bagchi, appearing for the appellant. Mr. Murari Das Roy, appearing for the respondent, added flavour to the said point. The question involved is the question of guilt theory and break-down theory of a matrimonial home. It is to be considered which of these theories would prevail or succeed in a conflict between the two theories. But such question could be decided only on the basis of given facts. But then, admittedly, these two theories are to be balanced in a manner so as not to destroy the object and purpose of the matrimonial law. Matrimonial law predominantly seeks to preserve the matrimony. It allows breakage only when a matrimony is irretrievably broken. It provides for reconciliation at various stages. The aims and objects are not to destroy but to preserve the matrimony. The matrimony is a unit of the society, which contributes to the civilization, growth and prosperity of the mankind. Human being is nurtured, brought up, fostered and initiated for the society in the house by the parents, the matrimony. Destruction of matrimony, therefore, is a grave situation, which is to be handled with great care and caution.
2. Facts:
In order to apply this test in the present case, we may refer to the facts.
2.1 In this case, the husband had sought to obtain a decree for divorce as against the wife on certain allegations. His first suit for divorce being Matrimonial Suit No. 67 of 1991 ended in dismissal on 29th January, 1994 by a judgment and decree passed by the learned Additional District Judge, Eighth Court, Alipore. The husband brought the second suit for restitution of conjugal rights being Matrimonial Suit No. 15 of 1995. In the said suit, a decree for restitution of conjugal rights was passed on 16 September, 1996 by the learned Additional District Judge, Fifth Court, Alipore. On the allegation that despite the decree for restitution of conjugal rights, there was no resumption of cohabitation within the period limited by law. As such, on expiry of the said incubating period, the husband had filed the present suit being Matrimonial Suit No. 80 of 1997 for divorce under section 13(1A) of the Hindu Marriage Act, 1955 (HM Act.). This suit has since been dismissed refusing divorce by a judgment and decree dated 25 February, 1999 passed by the learned Additional District Judge, Fifth Court, Alipore. The husband has preferred this appeal against the said judgment and decree dismissing the Matrimonial Suit No. 80 of 1997.
2.2 The learned Judge while dismissing the suit was of the view that the husband had attempted to take advantage of his own wrong which he is ineligible under section 23(1)(a) of the Hindu Marriage Act. On materials the learned Judge had come to the conclusion that the wife was ready and willing but the husband never attempted for restitution of the conjugal rights by bringing the wife home.
3. Submission on behalf of the appellant:
Upon such facts, Mr. Bagchi had contended that even if it is assumed that the husband did not make any attempt to bring the wife to the matrimonial home, still then, wrong must be such which is something other than the ground of non-cohabitation after the decree for restitution or judicial separation is obtained. Such wrong must be something else than the failure to cohabit whoever might be responsible for such failure. The introduction of section 13(1A) HM Act itself was the initiation of the bread-down theory, which was within the intention of the legislature that had developed by different High Courts and the Apex Court of late. He had relied on, in support of his contention, the decisions in Saroj Rani v. Sudarshan Kuamr Chandra, AIR 1984 SC 1562; Dharmendra Kumar v. Usha Kumar, AIR 1977 SC 2218; Sneh Prova v. Rejinder Kumar, AIR 1995 SC 2170 and Anukul Kumar Ghosh v. Chhanda Ghosh, (2000) 2 CLJ 40 by a Division Bench of this Court. He had also referred to an Article published in the August Issue of AIR 2002 Journal section 229 on this point by Dr. R.K Pathak Reader, Department of Law, D.D.U, Gorakhpur University. Relying on these decisions and the Article, Mr. Bagchi had contended that on materials there are facts to show that the wife has also contributed in the failure of the restitution. Therefore, even on facts when the wife is also one of the contributory to the failure to the restitution, there is no scope for holding that the husband was guilty and, therefore, even in case of balancing the question of guilt theory and break-down theory, having regard to the facts and circumstances of this case, the break-down theory will prevail being predominant, in view of the facts that the guilt theory is subservient and less predominant and cannot be ascribed to one of the parties, namely, the husband alone.
4. Submission on behalf of the respondent:
Mr. Muraridas Roy, learned counsel for the respondent, on the other hand, pointed out that this break-down theory would have a devastating effect in matrimonies, if it is given more importance than due. He had also contended that the Supreme Court itself had not given any importance to the break-down theory. In Hirachand Srinivas Managaonkar v. Sunanda, (2001) 4 SCC 125, it had proceeded on the basis of guilt theory and did not allow a divorce applied by the husband after a decree for judicial separation was obtained by the wife. He had also pointed out to the decision in Chaman Lal Chuni Lal v. Mohinder Devi, AIR 1968 P & H 287; M. Someswara v. Leelavathi, AIR 1968 Mysore 274 and Laxmibai Laxmichand Shah v. Laxmichand Ravaji Saha, AIR 1968 Bom 332, where the guilt theory found support. Relying on these decisions, he has pointed out that avoidance of restitution of conjugal rights by either of the spouse per se a wrong within the meaning of section 23(1)(a) HM Act. According to him, section 13(1A) HM Act is subject to section 23(1)(a). In case, the proposition advanced by Mr. Bagchi is accepted, then, according to Mr. Roy, it would have a devastating effect on the matrimony itself by handing down an instrument in the hands of unscrupulous spouse to get rid of the matrimony by creating ground for breakage of the matrimony. On the facts, he has pointed out that the guilt of the husband is overwhelming. The wife was always ready and willing to restitute the cohabitation. There was no attempt on the part of the husband to bring the wife to the matrimonial home. On the other hand, the attempt that was alleged to have been made by the husband, was found to be altogether baseless by the learned Trial Judge, rightly. Therefore, the appeal should fail.
5. The findings by the learned Trial Judge:
After hearing the learned counsel for the parties, it appears that on the basis of the materials on record, it is apparent that there was failure on the part of the husband to bring the wife to the matrimonial home. The allegation that he had attempted to bring the wife to the matrimonial home could not be established. The learned Trial Judge had rightly found that the husband had made no attempt to restitute cohabitation with the wife. There was no attempt to bring the wife to the matrimonial home. Inasmuch as the husband had admitted that he had never written any letter to the wife for restitution of cohabitation. He has also admitted that he had never been to the house of his in-laws to bring her back to the matrimonial home. The only allegation he has made that he had talked over phone with the wife and requested her to come but the wife had declined to come. On cross-examination, he has not been able to give the phone number to which he had rang up to talk to the wife. He has also not pointed out that there is a phone in his in-laws' house. On the other hand, the wife had pointed out that there was no telephone in her father's house. Therefore, the learned Trial Judge had rightly found that the husband had made a false allegation of ringing up the wife.
6. Contribution of the other spouse:
Now it is to be considered whether this conduct of the husband per se would be a wrong within the meaning of section 23(1)(a) of the HM Act. Before we proceed to discuss the said question, we may also refer to the argument advanced by Mr. Bagchi with regard to the contribution of the wife in the failure of restitution. On the materials on record, it appears that the wife had stayed in the matrimonial home only for about a week after the marriage was solemnized and then she went back to her father's house. The husband also went back to his in-laws' house and remained there for the rest of the period, which is about one and a half year, until there was a separation. The wife had in her written Statement had contended that she was agreeable to come back to the matrimonial home, provided certain guarantees were given. In her deposition, she had also contended that she is not willing to come back to the matrimonial home unless those conditions are fulfilled. She had been insisting on certain guarantees. These are materials available on fact which itself shows that the wife had never expressed her unequivocal eagerness or willingness to come back to the matrimonial home and contribute to the restitution of conjugal rights. Her willingness was always hedged by certain conditions. These facts necessarily give rise to certain presumptions, namely, that the wife had never shown her interest in staying in the matrimonial home, even more than a week since after her marriage and she brought back the husband to her father's house until the separation had resulted. Therefore, it seems that there are some substance in the contention of Mr. Bagchi that the wife had also some contributions in the failure of restitution of conjugal rights.
7. Break-down Theory:
Now, the facts are to be adjudged on the basis of this balancing of contribution. Admittedly, the husband is the gross contributory to the failure. It also seems that wife has also some contribution in the failure. Whether the husband has a greater contribution or the wife has lesser contribution is not the question. The question is the contribution to the failure, which leads us to believe that there was a breakage, which might be irretrievable. On facts, it seems to us that the breakage is irretrievable when the husband is not willing to bring the wife back to the matrimonial home and the wife is also not willing to come back to the matrimonial home and has not shown her eagerness, as it appears from the facts disclosed and has always hedged her willingness on certain conditions, which, according to us, are not very sufficient or genuine. Inasmuch as the wife had never alleged that even during her stay for a week after marriage in the matrimonial home she was ill-treated or was driven out of the matrimonial home. Therefore, it is very difficult to swallow that there could be any apprehension that she will not receive proper treatment in matrimonial home. Therefore, there is no doubt about the contribution of the wife in the failure, though, however, such contribution may not be equal to that of the husband. As such, the break-down theory has great support on facts in the present case.
7.1 Now, let us examine whether this break-down theory could be overwhelmed by guilt theory as contemplated under section 23(1)(a) HM Act. In fact, section 13(1A) HM Act is subject to section 23(1)(a). Both are to be read together. While interpreting a Statute, all the parts of the statute are to be given effective meaning and reconciled with each other. On part of the Statute cannot be read out of context. If both section 13(1A) and section 23(1)(a) are to be given effect to, they are to be reconciled and an effective meaning has to be given in order to interpret the law having regard to the object and purpose for which the legislature had intended to introduce the two provisions under the Act.
7.2 As observed earlier, the object and purpose of the Act is to preserve the matrimony and not to destroy it. But such preservation has to be made having regard to the break-down theory which would be beneficial to the society. Inasmuch as when a marriage breaks irretrievably, if the Court intervenes to maintain the matrimony, it would serve no purpose than to create disturbances in the matrimony itself. In a given circumstances, therefore, when a marriage breaks irretrievably the break-down theory would supersede the guilt theory unless on fact the guilt theory is so overwhelming or predominant that it would be hit by the mischief provided under section 23(1)(a) of HM Act.
7.3 The guilt, therefore, must be something other than failure of restitution when the ground for divorce is sought for on the strength of a decree for judicial separation or restitution of conjugal rights. The guilt must be so overwhelmingly resting upon the party seeking advantage that it would work injustice in granting the relief even where the matrimonial home is irretrievably broken. Therefore, for the theory, no straight jacket formula can be evolved. The question is to be decided on the basis of the given facts. If one of the theories overwhelms the other, then the overwhelming theory has to be accepted. If the guilt can be ascribed to one of the spouse, to such an extent that the ultimate aim of that spouse was to obtain a divorce, then the guilt theory is to be acceded to ignoring the break-down theory. The failure to or avoidance or restitution of cohabitation by one of the spouse after a decree for judicial separation or restitution of conjugal rights, per se, is not a wrong attracting guilt theory within the meaning of section 23(1)(a) HM Act in case where the marriage appears to have been broken irretrievably.
7.4 Mr. Roy had contended that the husband has always intended to obtain a divorce, which is apparent from the suit for divorce filed by him. Only when he was unsuccessful in obtaining a divorce, he obtained a decree for restitution when he could have obtained a decree for separation. Therefore, the decree for restitution was obtained by the husband only as a ground for divorce and there was no other object behind it. After the decree for restitution of conjugal rights is passed, the husband had shown utter negligence and deliberate inaction so as to avoid the restitution. Therefore, according to him, the guilt theory, in this case, overwhelms the break-down theory. True, this would have been the ground in a given facts, if there would have been nothing to show that the wife has also contributed to it. The failure to restitute per se is not a wrong within the meaning of section 23(1)(a) HM Act. There must be something, which must add to the failure in order to construe the failure as a wrong. There must be some facts, which will indicate that the husband was on the wrong side and he attempted to take advantage of his own wrong. The break-down theory is also to be put forth in order to assess the guilt theory and then arrive at a balanced conclusion as to which of these theories would prevail.
7.5 There is another aspect of this proposition. Divorce is permissible in the absence of restitution of cohabitation for period exceeding one year after a decree for judicial separation or restitution of conjugal rights. Such failure or avoidance in a case of judicial separation cannot be construed to mean a guilt for the erring spouse within section 23(10)(a), since it was a decree for judicial separation, even when one of the spouse is eager to restitute cohabitation. On the same principle it cannot be differently treated in a case where the decree is for restitution of conjugal rights. In fact, cohabitation is a matter of willingness of the parties. If one is adamant and other is willing, still then the unwilling person cannot be said to be taking advantage of his own wrong when he asks for divorce under section 13(1A) HM Act, be he the person who had initiated the proceedings or opposed the same. Inasmuch as, section 23(1)(a) HM Act does not completely erode the effectiveness of section 13(1A). If such a proposition is accepted, in that event, the existence of section 13(1A) would become ineffective and the purpose and object of introduction of this provision in the Act by the 1964 amendment would become infructuous and redundant. There seem to be no material difference intended to by the legislature while making the same a ground for divorce in both the cases.
7.6 The above proposition seems to be a double-edged sword. It may wreck havoc. It may bring about a devastation effect on the matrimony. It might be a sword in the hands of an ape, which might use it more for destruction than preservation. An unscrupulous spouse may plan his plot for obtaining a divorce by projecting the break-down theory. But, at the same time, having regard to the changes in the society with the advancement of civilization and mankind, experience shows that there are cases where a marriage that had irretrievably broken down sometimes continues with great constraint to the disadvantage of the parties and the offspring contributing great ill to the society. Sometimes it destroys the peace at the home and the life of the parties. It generates more disadvantage than advantage. It invites more disturbance than peace. Admittedly, family is the unit of the society on which the entire infrastructure of the society rests. Harmony in the family contributes to the peace. A peace contributes peace in the society. The peace in the family has to be preserved. It cannot be destroyed. It cannot be disturbed. Court cannot contribute either to its disturbance or to its destruction. Court has a liability to preserve the peace and maintain the matrimony. It has to make all endeavour to find out ways and means to reconcile to restore the peace and harmony. But there might be cases where the relation reached a point of no return. There might be cases where the marriage has broken irretrievably. In such a case, if parties are allowed to part with peacefully, the same may be a service to the society. In such a case the Court has to weigh the plans and come to a proper conclusion on the basis of the materials on record. The court has to handle the situation with great care and caution. It should not be oblivion of the devastating effect of a double-edged sword. While operating the sword, it has to be careful that it operates perfectly and not devastatingly. The Court is the guardian of law. While applying law, the Court has to be very careful. It has to strike a balance in a given circumstances. The two theories have to be balanced and applied in the given facts only with the object to bring peace either by maintaining matrimony viz. resolving the dispute or dissolving the matrimony.
8. The dilemma:
With the advancement of the society and the recent development in the attitude of the people towards matrimony, the law relating to family has undergone an evolution of changes. Apart from guilt theory or break-down theory, a consent theory has been introduced in the Statute. A Hindu marriage is understood as an indissoluble union of a male and a female. But after the 1995 Act was passed, a guilt theory of divorce was introduced. Later on breakdown theory and consent theory were added in the Act through amendment.
8.1 The Apex Court in Dharmendra Kumar v. Usha Kumar, AIR 1977 SC 2218, had dealt with the interaction of section 13(1A)(ii) HM Act and section 23(1)(a) of the Act and had laid down the proposition of guilt theory and breakdown theory in order to construe the meaning of “wrong” used in section 23(1)(a). According to this decision (1) in order to be a wrong for the purpose of the Act, the conduct alleged has to be something more than a disinclination to an offer of re-union. It must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled; (2) the petition filed under section 13(1A) must conform to the requirement of section 23(1)(a) i.e, must not come under the ambit of taking the benefit of his or her own wrong.
8.2 After this decision in Dharmendra Kumar (supra), various High Courts had followed the same. This has created a dilemma in the field of law. As we may find from N. Varalakshmi v. N.V Hanumantha Rao, AIR 1978 AP 6; Anil Jayantilal Vyas v. Sudhaben, AIR 1978 Guj. 74; Leelawati v. Rameswak, AIR 1979 Bom 285; Bai Mani v. Jayantilal Dahyabhai, AIR 1979 Guj. 209; Geeta Laxmi v. G.V.R.K Sarveshwara Rao, AIR 1983 AP 111; Pavaluri Murahari Rao v. Pavuluri Vasantha Manohari, AIR 1984 AP 54; O.P Mehta… v. Smt. Saroj Mehta…., AIR 1984 Delhi 159 and Sumitra Manna v. Govind Chandra Manna, AIR 1988 Cal. 192, in these decisions different High Courts had dealt with the question differently. The law dealt with in these decisions differently by one or the other High Court may be summarized thus:
(i) section 13(1A) HM Act does not altogether exclude the application of section 23(1)(a) of the Act, (ii) Decree for judicial separation or restitution of conjugal rights relieves the spouse from the matrimonial obligation towards each other. Resistance of restitution of cohabitation by one will not constitute wrong within the meaning of section 23(1)(a) denying relief under section 13(1A) to such spouse, (iii) Resistance to cohabitation is a right of both the spouse. Attempt for reconciliation or re-adjustment is not the duty of the either, (iv) Continuation of living in adultery, where a decree for judicial separation obtained on that ground, will not be wrong within section 23(1)(a). (v) Non-compliance of order for alimony will not be a wrong under section 23(1)(a) disentitling relief under section 13(1A). (vi) Mere disinclination of re-union is not a wrong within the said section, (vii) Court's duty to reconciliation is not a paramount duty. It is classified with the nature of the circumstances of each case.
8.3 In Hirachand Srinivas Managaonkar (supra), the Apex Court had attempted to resolve the dilemma regarding the definition of the aspect of taking the advantage of his or her own wrong and its application in the cases of divorce on the ground of breakdown theory. It has been held in the said decision that once it is proved that there is non-resumption of cohabitation over the prescribed period, it is understood that the marriage has broken down. On this ground, therefore, decree of divorce is inevitable and is beyond the reach of the Court to enquire into the concept of taking the advantage of his or her own wrong under section 23(1) of the Act at the time of passing a decree of divorce under section 13(1A). In this decision, the Court held that the right conferred under section 13(1A) is subject to provisions of section 23 of the Act. Cohabitation implies marital duties of the spouse towards each other. It is not dependant merely on sexual relation of husband and wife. Refusal to pay maintenance constitute “wrong” contemplated in section 23(1) of the Act, section 13(1A) and section 23(1)(a) read together makes it clear that section 13(1A) does not confer a vested right for obtaining a decree simply because the ground for divorce exists. Passing of a decree of judicial separation does not relieve the spouse of the duty to cohabit. Inasmuch as, the decree is not final. It is rescindable on the application of the either party. It affords an opportunity to the spouse for reconciliation and readjustment. It does not allow to act in a manner to thwart any move for cohabitation. Object and purpose of the Act is to maintain the marital relationship between spouses and not encourage snapping of such relationship.
8.4 In his Article (AIR 2002 Journal Section 229), Dr. Pathak had pointed out that the Apex Court in Managaonkar (supra) had missed certain points with regard to break-down theory. He had suggested that if there is a breakdown, there is no reason to retain the empty shell. Therefore, he wanted to propound break-down theory as an absolute proposition detached from guilt theory. We are unable to see any reason behind it. According to us, it will be contrary to the object and purpose of the law. Such a theory would advance the mischief not the benefit. The proposition of law cannot be absolute and one sided. If such a proposition is accepted, in that event, it would be permitting a spouse to abuse the process. In that event, the law will be observed more in its abuse than its use.
9. Application of the principle:
Having regard to the present ease, we find that the husband had really wanted a divorce right from the beginning. But the fact remains that there was an irretrievable breakage in the marriage, which had led the husband to seek a divorce. Therefore, this would per se not be a wrong, since the law has provided for relief. Attempt to obtain relief provided in law per se cannot be said to be a wrong. Therefore, we are unable to agree with the contention of Mr. Roy to that extent. Admittedly, the Bombay High Court, Punjab & Haryana High Court and Mysore High Court, in the respective cases in Laxmibai Laxmichand Shah (supra), Chaman Lal Chuni Lal (supra) and M. Someswara (supra) have not at all considered the question of section 23(1)(a) HM Act. In those decisions, the court proceeded on the basis of guilt theory alone. Therefore, having regard to the recent development of break-down theory, we may not derive much benefit by referring to those decisions. Similarly, in the decision in Hirachand Srinivas Managaonkar (supra), the Apex Court was also not concerned with the break-down theory in view of the given facts in which the Apex Court had dealt with the case where the guilt was so overwhelming that the break-down theory was eclipsed and could not be considered. In the said case, the husband was living in adultery even after the decree for judicial separation which was obtained by the wife on the ground of adultery and that the husband did not pay the maintenance directed by the Court Therefore, the husband's attempt to obtain divorce on the basis of the decree for judicial separation was held to be an attempt to take advantage of his own wrong. Therefore, these decisions will not help us on the question that falls for decision in the present case with regard to the balancing of guilt theory and break-down theory.
9.1 In Anukul Kumar Ghosh (supra), this Court in a Division Bench has held that once there is a decree either for restitution or for separation when a divorce is asked for by any of the parties under section 13(1-A) HM Act, unless there is any ground to refuse the decree is evident. This decision had relied on two decisions of this court in Sm. Kanak Lata Ghose… v. Amal Kumar Ghose…., AIR 1970 Cal 328 and Sm. Mita Gupta… v. Prabir Kumar Gupta…., AIR 1989 Cal. 248. The Apex Court had also considered this question in the light of section 23(1)(a) HM Act while deciding the case in Dharmendra Kumar (supra) and Saroj Rani (supra) where these two theories have since been attempted to be balanced holding that section 13(1A) was subject to section 23, section 23 cannot have the effect of altogether obliterating the provision of section 13(1A). That has to be balanced on the basis of the facts with regard to the breakage theory. In Sneh Prova (supra), the court had proceeded on the basis of the breakage theory without any reference to the guilt theory.
9.2 Therefore, where the marriage irretrievably breaks down the breakdown theory may be given its due importance. But in our view, in a given facts, it has to be balanced with the guilt theory. As rightly pointed out by Mr. Roy, the break-down theory cannot be given importance more than it's due. Inasmuch as, if such a proposition is accepted, in that event, it will destroy the entire object and purpose of the enactment of the statute seeking to preserve the matrimony altogether, by handing down an instrument or tool in the hands of unscrupulous spouse to take advantage of an irretrievably breakage of the matrimony. It has to be subject to section 23(1)(a) HM Act. The Court has a duty to weigh the balance in between the two theories and to accept one or the other in the given facts and circumstances of the case. Whenever the Court deals with the matrimony, it has to use great care and caution and make all endeavour to preserve the matrimony and not to destroy it. It shall not contribute to the breakage unless it comes to a firm finding that the marriage has irretrievably broken and that one of the spouse is not taking advantage of his own wrong of breaking the marriage irretrievably and then obtain a divorce. Nor can such person obtain a decree on these grounds where he is guilty of wrong other than disinclination of re-union.
10. Conclusion:
Having regard to the facts and circumstances of this case and applying the tests discussed above, we find that in this case the guilt theory is less overwhelming in view of the contribution of the wife as well and the breakdown theory appears to overwhelm the guilt theory. While making the balance, according to us, we find that the marriage had broken, irretrievably and, therefore, the break-down theory, in this case, would supersede the guilt theory. From this discussion above, we find that there is enough reason for the court to pass a decree for divorce under section 13(1A)(ii) of HM Act, as admittedly there was no resumption of cohabitation within the statutory period.
11. Order:
In the result, the appeal succeeds. The judgment and decree dated 25 November, 1999 appealed against passed by the learned Additional District Judge, Fifth Court, Alipore, in Matrimonial Suit No. 80 of 1997, appealed against, is hereby set aside and the Matrimonial Suit No. 80 of 1997 is hereby decreed. Let there be decree of divorce dissolving the marriage between the parties with immediate effect. The appeal is thus allowed.
There will be no order as to costs.
Urgent xerox certified copy of this judgment, if applied, be supplied within 7 days.
Joytosh Banerjee, J.:— I agree.
Appeal allowed.
S.K.P