Husband's Disinclination To Resume Cohabitation With Wife Not A 'Wrong' U/S 23(1)(a) HMA In Absence Of Grave Misconduct: AP High Court
The Andhra Pradesh High Court has held that a mere “disinclination” by a spouse to resume cohabitation after a decree for restitution of conjugal rights does not amount to a “wrong” within the meaning of Section 23(1)(a) of the Hindu Marriage Act so as to disentitle that spouse from seeking divorce. The court said in order to be a 'wrong' within the meaning of Section 23(1)(a),...
The Andhra Pradesh High Court has held that a mere “disinclination” by a spouse to resume cohabitation after a decree for restitution of conjugal rights does not amount to a “wrong” within the meaning of Section 23(1)(a) of the Hindu Marriage Act so as to disentitle that spouse from seeking divorce.
The court said in order to be a 'wrong' within the meaning of Section 23(1)(a), the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion and must amount to serious misconduct sufficient to deny the relief otherwise available under law.
Under Section 13(1A)(ii) either spouse can seek divorce where there has been no restitution of conjugal rights for one year or more after a decree for restitution of conjugal rights is passed. However, Section 23(1)(a) bars relief where the party seeking divorce is found to be taking advantage of his or her own “wrong”.
A division bench of Justice Ravi Nath Tilhari and Justice Maheswara Rao Kuncheam further noted that the husband's alleged reluctance to take the wife back could not be treated as a legal “wrong” disentitling him from seeking dissolution of marriage, particularly when the evidence led by the wife failed to establish any serious misconduct on his part.
The Court also noted that the marriage had remained broken for years, the parties had continued to live separately throughout the pendency of the appeal, and the wife had never taken steps to comply with the decree for restitution of conjugal rights under Order XXI Rule 31 CPC. Holding that the statutory ground under Section 13(1A)(ii) stood satisfied, the Court dissolved the marriage.
"Section 23 (1) (a) of the Hindu Marriage Act provides that in any proceeding under the Hindu Marriage Act, whether defended or not, if the Court is satisfied that any of the grounds for granting relief exists and the petitioner in any way not taking advantage of his or her own wrong or disability for the purpose of such relief, then in such a case but not otherwise, the Court shall decree such relief accordingly...It has further been held in Dharmendra Kumar (supra)that in order to be a wrong the conduct alleged has to be something more than a disinclination to agree to an offer of reunion. It must be misconduct serious enough to justify denial of relief claimed and otherwise entitled thereto".
The High Court reiterated that Section 23(1)(a) cannot be construed in a manner that defeats the statutory right to seek divorce under Section 13(1A), and that the conduct complained of must be grave enough to justify denial of relief.
The case arose out of matrimonial disputes between the parties, who had been living separately for several years. Earlier proceedings between them resulted in dismissal of the husband's divorce petition and grant of a decree for restitution of conjugal rights in favour of the wife. Subsequently, the husband approached the Family Court seeking divorce on the ground that there had been no restitution of conjugal rights for the statutory period prescribed under Section 13(1A)(ii) HMA.
The wife opposed the plea contending that she had made repeated efforts to resume matrimonial life, but the husband refused to take her back into the matrimonial home. It was argued that the husband himself prevented compliance of the decree and therefore could not seek divorce by taking advantage of his own wrong under Section 23(1)(a). The husband, on the other hand, contended that the decree admittedly remained uncomplied with for more than the statutory period and that no legally cognisable “wrong” on his part had been proved.
Upon examining the evidence, the High Court found material inconsistencies in the testimony of the wife and her witnesses. The Bench held that their evidence did not reliably establish that the husband had prevented compliance of the decree after it was passed. The Court further observed that, even if the evidence was accepted at its highest, it only disclosed a “disinclination” on the husband's part to immediately resume cohabitation, which could not be equated with serious misconduct so as to deny divorce under Section 23(1)(a).
The Court ultimately held that the Family Court had erred in refusing divorce by incorrectly invoking Section 23(1)(a) against the husband.
The appeal was allowed and the marriage between the parties was dissolved.
Case Title: X v.Y
Case Number: Civil Miscellaneous Appeal No. 4279 of 2004
Counsel for Appellant: Sri K. A. Narasimham
Counsel for Respondent: Sri Anup Koushik Karavadi