Case – T. Srinivasan v. T. Varalakshmi, 1991
Fact – These two appeals by the husband arose out of a common judgment passed by the Additional Judge, City Civil Court, Madras.
The respondent-wife filed the suit in before the Assistant Judge for separate maintenance against the appellant.
Appellant husband started teasing her alleging insufficiency of gifts by her parents and also the presence of a small congenital lump on the respondent’s shoulder. Even though it was known to him even before marriage. On 13.02.1975 the respondent-wife was sent away from the house by the appellant-husband asking her to come back with larger presents and jewels. The parents of the respondent were unable to fulfil his desire.
On 21.02.1977 the court allowed the petition and granted a decree for restitution of conjugal rights on the basis of the averments made in the counter filed by the respondent. The respondent who went to the house of the appellant on 23.05.1977, was not allowed to enter the house by the appellant and his mother. On 15.10.1977 she along with her parents went to the appellant’s house, but she was not allowed to enter the house by the appellant.
Hence, she claimed maintenance under Section 18 of the Hindu Adoptions and Maintenance Act at the rate of Rest. 300/- and also past maintenance, as the appellant is employed as Upper Division Clerk.
Issue – Whether the court below failed to apply the principle laid down in Section 13 (IA) of the Hindu Marriage Act, 1955?
Whether a decree for divorce should automatically follow on the expiry of the period of one year from the date of decree for restitution of conjugal rights?
Whether the Court below is justified in refusing a decree for divorce for the appellant on the basis of Section 23(1) of the Hindu Marriage Act, 1955?
Contentions and Judgement :
- Both the courts have concurrently found that it is only the husband who deserted his wife without probable and reasonable cause and thewife is entitled to claim maintenance. Further, the husband cannot take advantage of his own wrong within the meaning of Section 23 (1)(a) of the Hindu Marriage Act and in view of hisconduct in filing the petition for restitution of conjugal rights and subsequently not allowing her to enter into the house and join him and provide maintenance and driving her away, he isnot entitled to the relief of dissolution under Section 13(I-A) of the Hindu Marriage Act.
- It is alleged that the appellantwillfully neglected to maintain her and consequently deserted her without probable and reasonable cause and inspite of repeated requests and notices. The above conduct of the appellant is also relevant in deciding the question of “wrong” as contemplated under Section23 (I-A) of the Act. It is not a case of mere failure to render conjugal rights but something more and it is a case of misconduct serious enough so as to justify negativing the claim for dissolution of marriage.
- It is clear from the materials available in the case that the appellant has got the decree for restitution of conjugal rights only to see that he gets a further decree for divorce.
- A husband who obtains a decree of restitution of conjugal rights against his wife but refuses to allow her to join him is guilty of misconduct which would debar him from getting relief in view of section 23(1)(a).
- He cannot approach the court for relief under section 13(1A) of the Hindu Marriage Act, 1955 on the ground of non-resumption of cohabitation for more than one year after the decree. There was a clear finding on record that he had obtained the decree not to act in obedience but to keep the wife deprived of her right to his company.
- Wrongs by husband himself thereafter husband not entitled to decree of divorce.
