Case – Saroj Rani v. Sudarshan Kumar, 1984 Case Analysis
Fact – The parties herein were married at Jullundur City according to Hindu Vedic rites on or about January 24, 1975. The first daughter of the marriage Menka was born on January 4, 1976. It is alleged that May 16, 1977 was the last day of cohabitation by the parties. It is further alleged that on May 16, 1977, the respondent husband turned the appellant out of his house and withdrew himself from her society.
On October 17, 1977, the wife- appellant filed a suit against the husband-respondent herein under Section 9 of the Hindu Marriage Act, 1955 hereinafter referred to as the said Act for restitution of conjugal rights.
On March 28, 1978, a consent decree was passed by the learned Sub-Judge First Class for restitution of conjugal rights. The respondent made a statement in the court that the application of the petitioner under Section 9 of the said Act be granted and decree thereof be passed.
On April 19, 1979, the respondent husband filed a petition under Section 13 of the said Act against the appellant for divorce on the ground that one year had passed from the date of the decree for restitution of conjugal rights, but no actual cohabitation had taken place between the parties.
In reply of the appellant was that it was incorrect that after passing of the decree, the wife was taken to the house of the husband by the parents of the wife after one month of the decree and that the husband kept the wife in his house for two days and she was again turned out.
The learned District Judge on October 15, 1979 dismissed the petition of the husband for divorce. The learned Judge was of the view that as the decree for restitution of conjugal rights was passed by the consent of the parties, the husband was not entitled to a decree for divorce.
In this appeal before this Court, counsel for the wife did not challenge the finding of the Division Bench that the consent decree as such was not bad or collusive. What he tried to urge before us was that in view of the expression ‘wrong’ in Section 23(1)(a) of the Act, the husband was disentitled in this case to get a decree for divorce.
Issue – Whether there has been no restitution of conjugal rights after the passing of the decree for the restitution of conjugal rights, and to what relief was the husband entitled to?
Whether a husband who obtains a restitution decree by consent, but refuses to comply with it, can later use the decree as a ground for obtaining a divorce?
Contentions and Judgement :
- Even as to Article 14, the court held that there is complete equality of the sexes and equal protection of the laws so far as the relief is concerned, and so it cannot be struck down as violative of this Article. The debate on the constitutional validity of section 9 was settled.
- The court observed that the financial sanction by way of attachment of properties which has been provided for disobedience of the decree, is only an inducement for the parties to live together in order to give them an opportunity to settle their differences amicably.
- We reach this conclusion [of granting divorce] without any mental compunction because it is evident that for whatever be the reasons, this marriage has broken down and the parties can no longer live together as husband and wife; if such is the situation, it is better to close the chapter.
- The right of the husband or the wife to the society of the other spouse is not merely a creature of the statute. Such a right is inherent in the very institution of marriage itself. There are sufficient safeguards in s. 9 to prevent it from being a tyranny.
Law Commission – Seventy-first Report on the Hindu Marriage Act, 1955 – “Irretrievable Breakdown of Marriage as a Ground of Divorce”, Para 6.5 where it is stated thus:
Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage — “breakdown” — and if it continues for a fairly long period, it would indicate destruction of the essence of marriage — “irretrievable breakdown.
- This is so as an inducement by the court in appropriate case when the court has decreed restitution for conjugal rights and that the court can only decree if there is no just reason for not passing decree for restitution of conjugal rights to offer inducement for the husband or wife to live together in order to give them an opportunity to settle up the matter amicably. It serves a social purpose as an aid to the prevention of break-up of marriage.
- Counsel for the appellant, however, contended before us that in the social reality of the Indian society, a divorced wife would be materially at a great disadvantage. He is right in this submission. In view, however, of the position in law, we would direct that even after the final decree of divorce, the husband would continue to pay maintenance to the wife until she remarries and would maintain the one living daughter of the marriage. Separate maintenance should be paid for the wife and the living daughter.
