Reserved on:- 19.11.2019
Delivered on:- 10.12.2019
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
First Appeal No. 118 of 2012
Sri Sanjeev Khugshal …..Appellant
Versus
Smt. Parul @ Parinita ……Respondent
Present: – Mr. Shailendra Nauriyal, Advocate for the appellant.
Mr. Piyush Garg, Advocate for the respondent.
Coram: Hon’ble Alok Singh, J.
Hon’ble Ravindra Maithani, J.
Per: Hon’ble Ravindra Maithani, J.
The instant appeal is preferred against the judgment and
order dated 03.10.2012 passed in Petition No. 69 of 2010, Sanjeev
Khugshal Vs. Smt. Parul by the court of Principal Judge, Family Court,
Dehradun (hereinafter referred to as ‘the case’),
2. By the impugned judgment and order, the petition filed under
Section 13 of the Hindu Marriage Act, 1955 (for short ‘the Act’) has been
dismissed.
3. Appellant filed an application under Section 13(1-SectionA) of the
Act seeking dissolution of marriage dated 13.04.2001. According to the
petition, parties were married on 13.04.2001. Out of the wedlock,
daughter Mansi was born on 25.04.2002. The matrimonial relationship
between them was not cordial. The appellant moved a petition under
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Section 13 of the Act for dissolution of the marriage earlier. It was
registered as Original Suit No. 382 of 2008, Sajeev Khugshal Vs. Smt.
Parul, in the court of Family Judge, Family Court, Dehradun (for short
‘the former divorce suit’) The former divorce suit was decided on
27.01.2009 and the court passed a decree of judicial separation. Daughter
of the parties is in the custody of the respondent. The appellant is paying
regularly the amount of maintenance to the respondent. According to the
petition, since the decree of judicial separation was passed on 27.01.2009,
the parties are residing separately. There has been no relationship between
them. Therefore, the marriage may be dissolved. Subsequent to filing of
the petition, the appellant also added paragraph 9a, 9b and 9c in the
petition, averring the criminal cases pending between the parties and other
litigations.
4. Respondent filed written statement. With regard to the
relationship between the parties, in paragraph 29, the respondent pleaded
that the appellant has been visiting to her regularly. Their physical
relationship are established and continued. The written statement is quite
detailed. Learned court below framed four issues in the case, which are as
hereunder:-
1. Whether after decree in Original Suit No. 382/2008 dated 27.01.2009,
no sexual intercourse took place between the parties and no relationship
as husband and wife continued?
2. Whether the respondent committed cruelty to the appellant?
3. Whether the appellant is entitled to the reliefs claimed?
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4. Whether respondent is entitled to get the one time permanent alimony
for her and for her daughter from the appellant? If yes, what should be
the amount?
5. The Court recorded findings on these issues. On issue no.1,
the court held that there has been no physical relationship between the
parties since 2008 when the decree of judicial separation was passed in
the former divorce suit, but the court held that the relationship of husband
and wife continued between the parties. The Court also held that the
appellant did not make any effort for resuming the cohabitation, therefore,
he cannot take advantage of his own wrong. On issue no.2, the court held
that it has not been proved that the respondent committed cruelty to the
appellant. On issue no.4, the court held that since the amount of
maintenance is being ascertained under Sectionsection 125 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’), fixing
permanent alimony would not be proper.
6. Accordingly, the petition under Sectionsection 13 of the Act has
been dismissed. Aggrieved by it, the appellant filed the instant appeal.
7. Heard learned counsel for the parties and perused the record.
8. Only one issue has been raised in this appeal i.e. applicability
of provision of Section 13(1-SectionA) of the Act on the ground that after decree
of judicial separation, there has been no resumption of cohabitation
between the parties for a period of one year. It would be apt to reproduce
the provision of Section 13(1-SectionA) of the Act, which reads as hereunder:-
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“13.Divorce- (1)……………………………………………………………………….
(1-A) 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 one year 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 one year or upward after the passing of a
decree of restitution of conjugal rights in a proceeding to which they
were parties.”
9. There is no dispute between the parties that they were
married on 13.04.2001 and a daughter Km. Mansi was born out of the
wedlock, who is staying with the respondent. It is also admitted that the
respondent has been directed to pay maintenance to the respondent and
for the daughter in a proceedings under Section 125 of the Code. It is also
admitted that the former divorce suit was filed by the appellant, which
was decided on 27.01.2009. A copy of the judgment is on the record
which reveals that parties compromised in the former divorce suit. They
settled that in order to avoid unnecessary dispute, they would stay
separately and would not level any imputation on each other. The
appellant would visit his daughter Mansi. Based on this compromise,
decree of judicial separation was passed on 27.01.2009 in the former
divorce suit. This decree has attained finality.
10. Learned counsel for the appellant would argue that after the
decree of judicial separation passed in the former divorce suit, there has
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been no resumption of cohabitation between the parties for a period of one
year or more. Therefore, under Section 13(1-SectionA) of the Act, a decree of
divorce has to be granted.
11. In support of his contention, learned counsel placed reliance
on the principles of law as laid down in the case of Jethabhai Ratanshi
Lodaya Vs. Manabai Jethabhai Lodaya, AIR 1975 Bom 88. In this case,
Bombay High Court, inter alia, held that the husband is under no
obligation to cohabit with the wife after judicial separation and therefore
desertion on his part did not continue and it does not attract the provision
of Section 23 of the Act.
12. Learned counsel for the appellant would further argue that
the appellant has been paying the maintenance due to the respondent and
to his daughter. After decree of judicial separation, it is no longer
obligatory for the appellant to cohabit with the respondent and if he didn’t
do so, he cannot be said to have committed a wrong for attracting the
provision of Section 23 of the Act.
13. On the other hand, learned counsel for the respondent would
argue that the decree of judicial separation does not severe the
relationship between the parties. It only suspends the relationship and it is
always obligatory for either of the parties to make efforts to cohabit so as
to save the marriage.
14. Learned counsel for the respondent has made two-fold
arguments. They are:-
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(i) the appellant has been visiting the respondent and respondent has stated about
it. Her statement has been supported by the statement of her daughter and
(ii) the appellant did not make any attempt to unite. He did not approach the
appellant so that both may live together.
It is argued that it was obligatory for the appellant to make efforts so that
both the parties could have stayed together and failing which it would be a
wrong under Section 23 of the Act, which would disentitle the appellant for
grant of decree of divorce. In support of his contention, learned counsel has
placed reliance on the principles of law as laid down in the cases of Ram Kali
Vs. Gopal Dass, ILR (1971) 1 Delhi, Dharmendra Kumar Vs. Usha Kumar,
(1977) 4 SCC 12 and Hirachand Srinivas Managaonkar Vs. Sunanda, (2001) 4
SCC 125.
15. In the case of Ram Kali (supra), Full Bench of Delhi High
Court discussed amendments made in the Act when Section 13(1-A) was
introduced. The Court held that “the petitioner in such a petition would be
entitled to get the relief of dissolution of marriage by a decree of divorce
if he or she can show that there has been no resumption of cohabitation or
no restitution of conjugal rights as between the parties to the marriage for
a period of two years or upwards after the passing of the decree for
judicial separation or for restitution of conjugal rights. The result of the
amendment is that for the purpose of applying for a decree of divorce
under sub-section (1A) a spouse against whom an earlier decree for
judicial separation or for restitution of conjugal rights had been awarded
shall stand on the same footing as the spouse in whose favour such a
decree had been granted.” It was further held that “the underlying object
of the legislature in inserting sub-section (1A) in Section 13 seems to be
that if there has been no resumption of cohabitation or no restitution of
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conjugal rights 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
for restitution of conjugal rights, the Court should assume that the
relations between the parties have reached a stage where there is no
possibility of reconciliation and as such it might grant the decree of
divorce.”
16. In the case of Dharmendra Kumar (supra), principles of law
as laid down in the case of Gajna Devi Vs. Purshotam Giri, ILR (1976) 1
Delhi 725 have been followed and the court held as hereunder:-
“In our opinion that law has been stated correctly in Ram Kali Vs. Gopal Dass
(supra) and SectionGajna Devi V. Purshotam Giri (supra). Therefore, it would not be
very reasonable to think that the relief which is available to the spouse, against
whom a decree for restitution has been passed, should be denied to the one
who does not insist on compliance with the decree passed in his or her favour.
In order to be a ‘wrong’ within the meaning of Section 23(1), 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 the case of Hirachand Srinivas Managaonkar (supra),
Hon’ble Supreme Court further discussed the effect of decree of judicial
separation and held as hereunder:-
“15. In this connection the decision of this Court in the case of SectionDharmendra
Kumar vs. Usha Kumar (1977 (4) SCC 12) is very often cited. Therein this
Court taking note of the factual position that the only allegation made in the
written statement was that the petitioner refused to receive some of the letters
written by the appellant and did not respond to her other attempts to make her
-8-live with him, held that the allegations even if true, did not amount to
misconduct grave enough to disentitle the wife to the relief she has asked for.
In that connection this Court observed that in order to be a wrong within the
meaning of Sectionsection 23(1) 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. The decision cannot be read to be laying down a general
principle that the petitioner in an application for divorce is entitled to the
relief merely on establishing the existence of the ground pleaded by him or
her in support of the relief; nor that the decision lays down the principle
that the Court has no discretion to decline relief to the petitioner in a case
where the fulfillment of the ground pleaded by him or her is established.
16. In this connection another question that arises for consideration is the
meaning and import of Sectionsection 10(2) of the Act in which it is laid down that
where a decree for judicial separation has been passed it shall no longer be
obligatory for the petitioner to cohabit with the respondent, but the court may,
on the application by petition of either party and on being satisfied of the truth
of the statements made in such petition, rescind the decree if it considers it just
and reasonable to do so. The question is whether applying this statutory
provision to the case in hand can it be said that the appellant was relieved
of the duty to cohabit with the respondent since the decree for judicial
separation has been passed on the application filed by the latter. On a fair
reading of the sub-section (2) it is clear that the provision applies to the
petitioner on whose application the decree for judicial separation has been
passed. Even assuming that the provision extends to both petitioner as well as
the respondent it does not vest any absolute right in the petitioner or the
respondent not to make any attempt for cohabitation with the other party
after the decree for judicial separation has been passed. As the provision
clearly provides the decree for judicial separation is not final in the sense that it
is irreversible; power is vested in the Court to rescind the decree if it considers
it just and reasonable to do so on an application by either party. The effect of
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the decree is that certain mutual rights and obligations arising from the
marriage are as it were suspended and the rights and duties prescribed in the
decree are substituted therefor. The decree for judicial separation does not
sever or dissolve the marriage tie which continues to subsist. It affords an
opportunity to the spouse for reconciliation and re-adjustment. The decree may
fall by a conciliation of the parties in which case the rights of respective parties
which float from the marriage and were suspended are restored. Therefore the
impression that Sectionsection 10(2) vests a right in the petitioner to get the
decree of divorce notwithstanding the fact that he has not made any
attempt for cohabitation with the respondent and has even acted in a
manner to thwart any move for cohabitation does not flow from a
reasonable interpretation of the statutory provisions. At the cost of
repetition it may be stated here that the object and purpose of the Act is to
maintain the marital relationship between the spouses and not to
encourage snapping of such relationship.” (emphasis supplied)
18. In the divorce petition, the appellant examined himself as
PW1. On behalf of respondents, respondent Parul and her daughter Mansi
were examined. Though two more witnesses filed their evidence but they
did not appear for cross examination, therefore, their affidavits cannot be
read into evidence.
19. In his evidence, the appellant has reiterated the version of his
petition and in paragraph 13 of his affidavit, in examination-in-chief, the
appellant has deposed that after decree of judicial separation, there has
been no relationship or sexual intercourse between the parties. It is also
deposed that after decree of judicial separation, the parties did not stay
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together and in paragraph 14 and 15 of his affidavit, these averments have
been reiterated and it is deposed that divorce may be granted now.
20. In cross-examination at paragraph 21, appellant has stated
that he has no emotional attachment with his wife. He has stated reasons
for it.
21. In her affidavit, which is filed in examination-in-chief, the
respondent in paragraph 17 has deposed that the appellant is frequent
visitor to her. Their physical relationship continued and the people from
the locality are witness to it. The daughter of the parties, Km. Mansi has
also been examined. She has stated that after the former divorce suit,
appellant has been visiting to her house and staying with her mother. In
her cross-examination, she categorically stated that she is though not
happy with her father, but she still wishes that divorce should not be
granted.
22. There are oral evidences. On the one hand, according to the
appellant, after decree of judicial separation, parties had no relations; on
the other hand, according to the respondent and her daughter Km Mansi,
the appellant has been visiting to her frequently and their physical
relations continued.
23. On behalf of the respondents, it is argued that cohabitation
does not necessarily mean sexual relations. Mere visiting and continuing
relationship amounts to cohabitation. Reference has been made to the
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judgment in the case of Hirachand Srinivas Managaonkar (supra). Para 12
of it has been referred to, which is as hereunder:-
“12. The next contention that arises for consideration is whether the appellant
by refusing to pay maintenance to the wife has committed a “wrong” within
the meaning of Section 23 and whether in seeking the relief of divorce he is
taking advantage of his own “wrong”. In Mulla’s Hindu Law (17th Edition at
p. 121) it is stated:
“Cohabitation means living together as husband and wife. It consists of
the husband acting as a husband towards the wife and the wife acting as
a wife towards the husband, the wife rendering housewifely duties to
the husband and the husband supporting his wife as a husband should.
Cohabitation does not necessarily depend on whether there is sexual
intercourse between husband and wife. If there is sexual intercourse, it
is very strong evidence it may be conclusive evidence that they are
cohabiting, but it does not follow that because they do not have sexual
intercourse they are not cohabiting. Cohabitation implies something
different from mere residence. It must mean that the husband and wife
have begun acting as such and have resumed their status and position as
husband and wife.”
24. Continue with the relationship as husband and wife is one
thing and physical relationship is another, though part of it. First of all, it
has to be seen as to whether parties cohabit after 23.01.2009, when the
decree of judicial separation was passed in the former suit. In view of the
acrimony between the parties and in the absence of any other material,
merely on the basis of the oral statements of the respondent and the
daughter Mansi, it may not be safe to conclude that the appellant has been
visiting the respondent after the decree of judicial separation. It is not
proved that there has been resumption of cohabitation between the parties
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after the decree of judicial separation passed in the former suit. Now, its
effect has to be seen.
25. Appellant is categorical that he never visited the respondent.
He never tried to make any attempt for resuming the cohabitation and
what is being argued on behalf of the appellant is that the appellant is not
under obligation to resume cohabitation after the decree of judicial
separation passed in the former suit. Reference has been made to Section
10 (2) of the Act, which reads as hereunder:-
“10. Judicial separation.- (1) Either party to a marriage, whether solemnized
before or after the commencement of this Act, may present a petition praying
for a decree for judicial separation on any of the grounds specified in sub-
section (1) of Section 13, and in the case of a wife also on any of the grounds
might have been presented.
(2) Where a decree for judicial separation has been passed, it shall no longer be
obligatory for the petitioner to cohabit with the respondent, but the court may,
on the application by petition of either party and on being satisfied of the truth
of the statement made in such petition, rescind the decree if it considers it just
and reasonable to do so.”
26. In the case of Krishna Bhattacharjee Vs. Sarathi Choudhury
and Another, (2006) 2 SCC 705, Hon’ble Supreme Court further referred
to the principles as laid down in the case of Hirachand Srinivas
Managaonkar (supra). Specifically paragraph 16 (as quoted hereinbefore)
has been quoted in the case of Krishna Bhattacharjee (supra).
27. In the case of Ram Kali (supra), Full Bench of Delhi High
Court held that if after a decree of judicial separation, there has been no
resumption of cohabitation for a requisite period, court should assume that
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the relationship between the parties has reached to the state, where there is
no possibility of reconciliation, but in the case of Hirachand Srinivas
Managonkar (supra), the court discussed the provision of Sections 10 and
Section23 of the Act. Section 10 of the Act has already been quoted hereinabove.
Section 23 (1) (a) of the Act is as hereunder:-
“23. Decree in proceedings.-(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-clause
(a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5] is not in any way
taking advantage of his or her own wrong or disability for the purpose of such
relief, and
………………………………………………………………………………………………….”
28. This Sectionsection 23 of the Act disentitles the petitioner to the
relief, in case, it emanates from a wrong committed by him. The only
question is as to whether after decree of judicial separation, the appellant
shall be under obligation to make efforts for resumption of cohabitation.
In the case of Hirachand Srinivas Managaonkar (supra), the court held
that “the impression that Section 10(2) vests a right in the petitioner to get
the decree of divorce notwithstanding the fact that he has not made any
attempt for cohabitation with the respondent and has even acted in a
manner to thwart any move for cohabitation does not flow from a
reasonable interpretation of the statutory provisions. At the cost of
repetition it may be stated here that the object and purpose of the Act is to
maintain the marital relationship between the spouses and not to
encourage snapping of such relationship.”
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29. In the case of Krishna Bhattacharjee (supra), Hon’ble
Supreme Court, inter alia, held that the decree of judicial separation does
not severe or dissolve the marriage. It offers an opportunity for
reconciliation and adjustment.
30. In view of the law as laid down in the case of Hirachand
Srinivas Managaonkar (supra), even after decree of judicial separation,
parties to marriage should make attempt for cohabitation.
31. In the instant case, it has not been done. The appellant did
not make any attempt to cohabit. It would be a wrong under Section 23 of
the Act and appellant cannot take advantage of it. Therefore, this Court is
of the view that since after decree of judicial separation, passed in the
former divorce suit, the appellant did not make any efforts for resuming
cohabitation, it amounts to a wrong under Section 23 of the Act. It is a
valid ground for refusal of grant of decree of divorce and the learned court
below did not commit any error in rejecting the petition under Section
13(1-SectionA) of the Act. Accordingly, the appeal deserves to be dismissed.
32. The appeal is dismissed.
(Ravindra Maithani, J.) (Alok Singh, J.)
Ujjwal
