Smt. Saroj Rani Vs. Sudarshan Kumar
Chadha [1984] INSC 133 (8 August 1984)
MUKHARJI, SABYASACHI (J) MUKHARJI, SABYASACHI
(J) FAZALALI, SYED MURTAZA
CITATION: 1984 AIR 1562 1985 SCR (1) 303 1984
SCC (4) 90 1984 SCALE (2)118
ACT:
Constitution of India 1950, Articles 13,14
and 21.
Remedy of resitution of conjugal
rights-Section 9, Hindu Marriage Act 1955-Whether violates human dignity, right
to privacy and personal liberty- And whether valid and constitutional.
Hindu Marriage Act 1955, Sections 9, 13 and
23(1) (a).
Petition by wife for restitution of conjugal
rights- Husband consenting to the passing of a decree-Decree passed- Husband
after one year filing petition under section 13 for divorce-Husband whether
entitled to a decree of divorce.
Code of Civil Procedure 1908, Order 21, Rule
32-Decree for restitution of conjugal rights-Execution of.
HEADNOTE:
The wife-appellant filed a suit against the
husband- respondent under Section 9 of the Hindu Marriage Act 1955, for
restitution of conjugal rights. Though the respondent contested the petition
contending that he had neither turned the appellant out from his house nor withdrawn
from her society later as he made a statement in the Court that the application
under Section 9 be granted; a consent decree was passed by the Sub-Judge for
the restitution of conjugal rights between the parties.
After a lapse of a year, the respondent-husband
filed a petition under Section 13 of the Act against the appellant for divorce
on the ground that though one year had lapsed from the date of passing the
decree for restitution of conjugal rights no actual co-habitation had taken
place between the parties. The appellant filed her reply contending that she
was taken to the house of the husband by her parents one month after the decree
and that the husband kept her in the house for two days and then she was again
turned out. It was further alleged that an application under Section 28A filed
in the Subordinate Court was pending.
304 The District Judge after considering the
evidence of the civil and criminal proceedings pending between the parties,
came to the conclusion that there had been no resumption of cohabitation
between the parties and that in view of the provisions of Section 23 and in
view of the fact that the previous decree was a consent decree and that at the
time of the passing of the said decree, as there was no provision like Section
13B i.e. divorce by mutual consent';
held 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.
The respondent filed an appeal. A Single
Judge of the High Court following the decision of this Court in Dharmendra
Kumar v. Usha Kumari [1978] 1 SCR 315, held that it could not be said that the
husband was taking advantage of his 'wrongs', but however expressed the view
that the decree for restitution of conjugal rights could not be passed with the
consent of the parties, and therefore being a collusive one disentitled the
husband to a decree for divorce, and referred the matter to the Chief Justice
for constitution of a Division Bench for consideration of the question.
The Division Bench held following Joginder
Singh v. Smt. Pushpa, AIR 1969 Punjab and Haryana page 397 that a consent
decree could not be termed to be a collusive, decree so as to disentitle the
petitioner to a decree for restitution of conjugal rights, and that in view of
the language of Section 23 if the Court had tried to make conciliation between
the parties and conciliation had been ordered, the husband was not disentitled
to get a decree.
The appeal was allowed, and the husband
granted a decree of divorce.
In the appeal to this Court it was contended
on behalf of the wife appellant that : (a) in view of the expression 'wrong' in
section 23(1) (a) of the Act, the husband was disentitled to get a decree for
divorce, and (b) Section 9 of the Act was arbitrary and void as offending
Article 14 of the Constitution.
Dismissing the Appeal,
HELD: (1) In India conjugal rights i.e. right
of the husband or the wife to the society of the other spouse is not merely
creature of the statute. Such a right is inherent in the very institution of
marriage itself. There are sufficient safeguards in Section 9 of the Hindu
Marriage Act to prevent it from being a tyranny. [314 D-E] 305
2. Section 9 is only a codification of
pre-existing law. Rule 32 of Order 21 of the Code of Civil Procedure deals with
decree for specific performance for restitution of conjugal rights or for an
injunction. [314 H]
3. Section 9 of the Act is not violative of
Article 14 or Article 21 of the Constitution if the purpose of the decree for
restitution of conjugal rights in the said Act is understood in its proper
perspective and if the method of execution in cases of disobedience is kept in
view. [315 G] T. Sareetha v. Venkata Subbaiah, A.I.R. 1983 Andhra Pradesh page
356, over-ruled.
Smt. Harvinder kaur v. Harmander Singh
Choudhry, A.I.R.
1984 Delhi, page 66, approved.
4. It is significant that unlike a decree of
specific performance of contract; a decree for restitution of conjugal rights,
where the disobedience to such a decree is willful i.e. is deliberate, might be
enforced by attachment of property. Where the disobedience follows as a result
of a willful conduct i.e. where conditions are there for a wife or a husband to
obey the decree for restitution of conjugal rights but disobeys the same in
spite of such conditions, then only the properties have to be attached, is
provided for. This is so to enable the Court in appropriate cases when the
Court has decreed restitution for conjugal rights to offer inducement for the
husband or wife to live together and to settle up the matter amicably. It
serves a social purpose, as an aid to the prevention of break-up of
marriage.[315 C-F]
5. (i) 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. Wife would be
entitled to such maintenance only until she remarries and the daughter to her
maintenance until she is married. [316 C; E] (ii) Until altered by appropriate
order on application or proper materials, such maintenance should be Rs. 200
per month for the wife, and Rs. 300 per month for the daughter.
[316 D]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 187 of 1983.
From the Judgment and Order dated the 17th
August, 1982 of the Punjab and Haryana High Court in First Appeal From Order
No. 199-M of 1979.
306 R. K. Garg, Mrs. Meera Aggarwal and R. C.
Misra for the appellant.
E.C. Agarwala, Mrs. H. Wahi and Rajiv Sharma
for the respondent.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. The parties herein were married at Jullundur City
according to Hindu Vedic rites on or about 24th January, 1975. The first
daughter of the marriage Menka was born on 4th January, 1976. On 28th February,
1977 second daughter Guddi was born. It is alleged that 16th May, 1977 was the
last day of cohabitation by the parties. It is further alleged that on 16th
May, 1977, the respondent- husband turned the appellant out of his house and
withdrew himself from her society. The second daughter unfortunately expired in
the house of the respondent/father on 6th August, 1977. On 17th October, 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.
In view of the argument now sought to be
advanced, it is necessary to refer to the said petition. In the said petition,
the wife had set out the history of the marriage as hereinbefore briefly
mentioned and alleged several maltreatments both by the husband as well as by
her in-laws and thereafter claimed decree for restitution of conjugal rights.
On 21st March, 1978, the learned Sub-Judge Ist Class passed an order granting
Rs. 185 per month as maintenance pendente lite and Rs. 300 as the litigation
expenses. On 28th March, 1978, a consent decree was passed by the learned
Sub-Judge Ist Class for restitution of conjugal rights. It may be mentioned
that on the petition of the wife for restitution of conjugal rights, the
husband-respondent appeared and filed his written statement admitting therein
the factum of marriage between the parties but denied the fact that the
respondent had ever made any demand from the petitioner as alleged or had ever
disliked her or had withdrawn from her society or turned her out from his house
as alleged by the wife petitioner in her petition for restitution of conjugal
rights. The respondent thereafter 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. Accordingly the learned Sub-Judge 1st Class on 28th
March 1978 passed the decree for the restitution 307 of conjugal rights between
the parties. It was alleged by the petitioner-wife that the appellant had gone
to the house of the respondent and lived with him for two days as husband and
wife. This fact has been disbelieved by all the courts.
The courts have come to the conclusion and
that conclusion is not challenged before us that there has been no cohabitation
after the passing of the decree for restitution of conjugal rights.
On 19th April, 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 confugal rights, but no actual cohabitation had taken place
between the parties. The appellant filed her reply to the said petition. The
categorical case in reply of the appellant was that it was incorrect that after
passing of the decree, there had been no restitution of conjugal rights between
the parties, positive case of the appellant was 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. It was further alleged that
the wife had filed an application under Section 28A of the said Act in the
court of Sub-Judge, 1st Class, Jullundur on 22nd January, 1979 with the request
that the husband should be directed to comply with the decree passed against
him under Section 9 of the said Act and the application was pending at the time
when the reply was filed by the wife to the petition for divorce.
The learned District Judge on 15th October,
1979 dismissed the petition of the husband for divorce. The learned Judge
framed two issues, one was whether there has been no restitution of conjugal
rights after the passing of the decree for the restitution of conjugal rights,
and secondly to what relief was the husband entitled to ? After considering the
evidence of civil and criminal proceedings pending between the parties, the
learned Judge came to the conclusion that there has been no resumption of
cohabitation between the parties after 28th March, 1978 and decided the issue
in favour of the husband but on the question of relief the learned Judge was of
the view that in view of the provisions of Section 23 of the said Act and in
view of the fact that the previous decree was a consent decree and at that time
there was no provision like provision of Section 13B of the said Act i.e.
'divorce by mutual consent', the learned Judge was of the view that as the
decree for restitution 308 of conjugal rights was passed by the consent of the
parties, the husband was not entitled to a decree for divorce.
Being aggrieved by the said decision, there
was an appeal before the High Court of Punjab and Haryana. So far as last
mentioned ground was concerned, the High Court held that in view of the
decision of this Court in the case of Dharmendra Kumar v. Usha Kumari, this
contention was not open to the wife. The court was of the opinion that in view
of the said decision of this Court, it could not be said that the husband was
taking advantage of his 'wrongs'. In the said decision this Court noted that it
would not be reasonable to hold that the relief which was available to the
spouse against whom a decree for restitution of conjugal rights had been passed
should be denied to the one who does not comply with the decree passed against
him or her. The expression "in order to be a 'wrong' within the meaning of
Section 23 (1) (a) the conduct alleged has to be something more than 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 to. So, therefore, Section 23 (1) (a) provides as follows:-
"23. (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").
In that view of the matter, the High Court
rejected the contention. So far as the other aspect was concerned, the learned
Judge expressed the view that the decree for restitution of conjugal rights
could not be passed with the consent of the parties and therefore being a
collusive one disentitled the husband to a decree for divorce. This view was
taken by the learned trial judge relying on a previous decision of the High
Court. Mr. Justice Goyal of the High Court felt that this view required
reconsideration and he therefore referred the matter to the Chief Justice for
constitution of a Division Bench of the High Court for the consideration of
this question.
309 The matter thereafter came up before a
Division Bench of Punjab and Haryana High Court and Chief Justice Sandhawalia
for the said court on consideration of different authorities came to the
conclusion that a consent decree could not be termed to be a collusive decree
so as to disentitle the petitioner to decree for restitution of conjugal
rights. It may be mentioned that before the Division Bench of behalf of the
appellant-wife, counsel did not assail the factual finding of the Trial Court
that there was no co-habitation after the decree for restitution of conjugal
rights nor did he press the first ground of defence namely that the appellant
could not take advantage of his 'wrong' because of having refused cohabitation
in execution of the decree. However, the ground that the decree for restitution
of conjugal rights was in a sense collusive decree was pressed before the
Division Bench. In view of the Full Bench decision of the Punjab and Haryana
High Court in the case of Joginder Singh v. Smt. Pushpa wherein the majority of
the Judges of the Full Bench held that a consent decree in all cases could not
be said to be a collusive decree and where the parties had agreed to passing of
a decree after attempts had been made to settle the matter, in view of the
language of Section 23 of the court had tried to make conciliation between the
parties and conciliation had been ordered, the husband was not disentitled to
get a decree.
Section 23 sub-section (2) provides as
follows:- "(2)-Before proceeding to grant any relief under this Act, it
shall be the duty of the court in the first instance, in every case where it is
possible so to do consistently with the nature and circumstances of the case,
to make every endeavor to bring about a reconciliation between the parties:
Provided that nothing contained in this sub-
section shall apply to any proceeding wherein relief is sought on any of the
grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause
(vi) or clause (vii) of sub-section (1) of section 13." In this case from
the facts on record it appears that there was no collusion between the parties.
The wife petitioned against the husband on certain allegations, the husband
denied these allegations. He stated that he was willing to take the wife back.
A decree on that basis was passed. It is difficult to find any collusion as
such in 310 the instant case. Apart from that we are in agreement with the
majority of the learned judges of the Division Bench of Punjab and Haryana High
Court in the case of Joginder Singh v. Smt. Pushpa (supra) that all cases of
consent decrees cannot be said to be collusive. Consent decrees per se in
matrimonial matters are not collusive. As would be evident from legislative
intent of Section 13B that divorce by mutual consent is no longer foreign to Indian
law of divorce but of course this is a subsequent amendment and was not
applicable at the time when the decree in question was passed. In the premises
we accept the majority view of the Division Bench of Punjab and Haryana High
Court on this point.
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. It was sought
to be urged that from the very beginning the husband wanted that decree for
divorce should be passed. He therefore did not deliberately oppose the decree for
restitution of conjugal rights. It was submitted on the other hand that the
respondent/husband had with the intention of ultimately having divorce allowed
the wife a decree for the restitution of conjugal rights knowing full well that
this decree he would not honour and thereby he misled the wife and the Court
and thereafter refused to cohabitate with the wife and now, it was submitted,
cannot be allowed to take advantage of his 'wrong'. There is, however, no
whisper of these allegations in the pleading. As usual, on this being pointed
out, the counsel prayed that he should be given an opportunity of amending his
pleadings and, the parties, with usual plea, should not suffer for the mistake
of the lawyers. In this case, however, there are insurmountable difficulties.
Firstly there was no pleading, secondly this ground was not urged before any of
the courts below which is a question of fact, thirdly the facts pleaded and the
allegations made by the wife in the trial court and before the Division Bench
were contrary to the facts now sought to be urged in support to her appeal. The
definite case of the wife was that after the decree for restitution of conjugal
rights, the husband and wife cohabitated for two days. The ground now sought to
be urged is that the husband wanted the wife to have a decree for judicial
separation by some kind of a trap and then not to cohabitate with her and
thereafter obtain this decree for divorce. This would be opposed to the facts
alleged in the defence by the wife.
Therefore 311 quite apart from the fact that
there was no pleading which is a serious and fatal mistake, there is no scope
of giving any opportunity of amending the pleadings at this stage permitting
the wife to make an inconsistent case. Counsel for the appellant sought to urge
that the expression 'taking advantage of his or her own wrongs' in clause (a)
of sub- section 23 must be construed in such a manner as would not make the
Indian wives suffer at the hands of cunning and dishonest husbands. Firstly
even if there is any scope for accepting this broad argument, it has no factual
application to this case and secondly if that is so then it requires a
legislation to that effect. We are therefore unable to accept the contention of
counsel for the appellant that the conduct of the husband sought to be urged
against him could possibly come within the expression 'his own wrongs' in
section 23(1) (a) of the Act so as to disentitle him to a decree for divorce to
which he is otherwise entitled to as held by the courts below. Furthermore we
reach this conclusion 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.
Our attention, however, was drawn to a
decision of a learned single judge of the Andhra Pradesh High Court in the case
of T. Sareetha v. Venkata Subbaiah. In the said decision the learned judge had
observed that the remedy of restitution of conjugal rights provided for by
Section 9 of the said Act was a savage and barbarous remedy violating the right
to privacy and human dignity guaranteed by Article 21 of the Constitution.
Hence, according to the learned judge, Section 9 was constitutionally void. Any
statutory provision that abridged the rights guaranteed by Part III of the
Constitution would have to be declared void in terms of Article 13 of the
Constitution. According to the said learned judge, Article 21 guaranteed right
to life and personal liberty against the State action. Formulated in simple
negative terms, its range of operation positively forbidding the State from
depriving any person of his life or personal liberty except according to the
procedure established by law was of far-reaching dimensions and of overwhelming
constitutional significance. Learned judge observed that a decree for
restitution of conjugal rights constituted the grossest form of violation of
any individual right to privacy. According to the learned judge, it denied the
woman her free choice whether, when and how her body was to 312 become the
vehicle for the procreation of another human being. A decree for restitution of
conjugal rights deprived, according to the learned judge, a woman of control
over her choice as and when and by whom the various parts of her body should be
allowed to be sensed. The woman loses her control over her most intimate
decisions. The learned judge therefore was of the view that the right to
privacy guaranteed by Article 21 was flagrantly violated by a decree for
restitution of conjugal rights. The learned judge was of the view that a wife
who was keeping away from her husband because of permanent or even temporary
estrangement cannot be forced, without violating her right to privacy to bear a
child by her husband. During a time when she was probably contemplating an
action for divorce, the use and enforcement of Section 9 of the said Act
against the estranged wife could irretrievably alter her position by bringing
about forcible conception permanently ruining her mind, body and life and
everything connected with it. The learned judge was therefore clearly of the
view that Section 9 of the said Act violated Article 21 of the Constitution. He
referred to the Scarman Commission's report in England recommending its
abolition. The learned judge was also of the view that Section 9 of the said
Act, promoted no legitimate public purpose based on any conception of the
general good. It did not therefore subserve any social good. Section 9 of the
said Act was, therefore, held to be arbitrary and void as offending Article 14
of the Constitution. Learned judge further observed that though Section 9 of
the said Act did not inform offend the classification test, inasmuch as it made
no discrimination between a husband and wife, on the other hand, by making the
remedy of restitution of conjugal rights equally available both to wife and
husband, it apparently satisfied the equality test. But bare equality of
treatment regardless of the inequality of realities was neither justice nor
homage to the constitutional principles.
He relied on the decision of this Court in
the case of Murthy Match Works, Etc. Etc. v. The Assistant Collector of Central
Excise Etc. The learned judge, however, was of the opinion based on how this
remedy was found used almost exclusively by the husband and was rarely resorted
to by the wife.
The learned judge noticed and that is a very
significant point that decree for restitution of conjugal rights can only be
enforced under Order 21 Rule 32 of Code of Civil Procedure. He also referred to
certain trend in the American law and came to the 313 conclusion that Section 9
of the said Act was null and void.
The above view of the learned single judge of
Andhra Pradesh was dissented from in a decision of the learned single judge of
the Delhi High Court in the case of Smt. Harvinder Kaur v. Harmander Singh
Choudhry. In the said decision, the learned judge of the Delhi High Court
expressed the view that Section 9 of the said Act was not violative of Articles
14 and 21 of the Constitution. The learned judge noted that the object of
restitution decree was to bring about cohabitation between the estranged
parties so that they could live together in the matrimonial home in amity. The
leading idea of Section 9 was to preserve the marriage. From the definition of
cohabitation and consortium, it appeared to the learned judge that sexual
intercourse was one of the elements that went to make up the marriage, but that
was not the summum bonum. The courts do not and cannot enforce sexual
intercourse. Sexual relations constituted an important element in the
conception of marriage, but it was also true that these did not constitute its
whole content nor could the remaining aspects of matrimonial consortium be said
to be wholly unsubstantial or of trivial character. The remedy of restitution
aimed at cohabitation and consortium and not merely at sexual intercourse. The
learned judge expressed the view that the restitution decree did not enforce
sexual intercourse. It was a fallacy to hold that the restitution of conjugal
rights constituted "the starkest form of governmental invasion" of
"marital privacy".
This point namely validity of Section 9 of
the said Act was not canvassed in the instant case in the courts below counsel
for the appellant, however, sought to urge this point before us as a legal
proposition. We have allowed him to do so.
Having considered the views of the learned
single judge of the Andhra Pradesh High Court and that of learned single judge
of Delhi High Court, we prefer to accept on this aspect namely on the validity
of Section 9 of the said Act the views of the learned single judge of the Delhi
High Court. It may be mentioned that conjugal rights may be viewed in its
proper perspective by keeping in mind the dictionary meaning of the expression
"Conjugal". Shorter Oxford English Dictionary, 3rd Edn. Vol. I page
371 notes the meaning of 'conjugal' as "of or pertaining to marriage or to
husband and wife in their relations to each other". In the Dictionary of
English Law, 1959 Edn. at page 453, Earl Jowitt defines 'conjugal rights' thus:
314 "The right which husband and wife
have to each other's society and marital intercourse. The suit for restitution
of conjugal rights is a matrimonial suit, cognizable in the Divorce Court,
which is brought whenever either the husband or the wife lives separate from
the other without any sufficient reason, in which case the court will decree
restitution of conjugal rights (Matrimonial Causes Act, 1950, s. 15), but will
not enforce it by attachment, substituting however for attachment, if the wife
be the petitioner, an order for periodical payments by the husband to the wife
(s.22).
Conjugal rights cannot be enforced by the act
of either party, and a husband cannot seize and detain his wife by force (R.V.
Jackson [1891] 1 Q.B. 671)".
In India it may be borne in mind that
conjugal rights i.e. right of the husband or the wife to the society of the
other spouse is not merely creature of the statute. Such a right is inherent in
the very institution of marriage itself. See in this connection Mulla's Hindu
Law-15th Edn. p. 567-Para 443. There are sufficient safeguards in Section 9 to
prevent it from being a tyranny. The importance of the concept of conjugal
rights can be viewed in the light of Law Commission-71st Report on the Hindu
Marriage Act, 1955- "Irretrievable Breakdown of Marriage as a Ground of
Divorce, Para 6.5 where it is stated thus:- "Moreover, the essence of
marriage is a sharing of common life, a sharing of all the happiness that life
has to offer and all the misery that has to be faced in life, an experience of
the joy that comes from enjoying, in common, things of the matter and of the
spirit and from showering love and affection on one's offspring. Living
together is a symbol of such sharing in all its aspects. 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".
Section 9 only is a codification of
pre-existing law.
Rule 32 of Order 21 of the Code of Civil
Procedure deals with decree for specific performance for restitution of
conjugal rights or for an injuction. Sub-rule (1) of Rule 32 is in these terms:
"Where the party against whom a decree
for the specific performance of a contract, or for restitution of conjugal
rights or for an injunction, has been passed, has had an opportunity of obeying
the decree and has willfully failed to obey it, the decree may be enforced in
the case of a decree for restitution of conjugal rights by the attachment of
his property or, in the case of a decree for the specific performance of a
contract, or for an injuction by his detention in the civil prison, or by the
attachment of his property, or by both." It is significant to note that
unlike a decree of specific performance of contract, for restitution of
conjugal rights the sanction is provided by court where the disobedience to
such a decree is willful i.e. is deliberate, in spite of the opportunities and
there are no other impediments, might be enforced by attachment of property. So
the only sanction is by attachment of property against disobedience of a decree
for restitution of conjugal rights where the disobedience follows as a result
of a willful conduct i.e. where conditions are there for a wife or a husband to
obey the decree for restitution of conjugal rights but disobeys the same in
spite of such conditions, then only financial sanction, provided he or she has
properties to be attached, is provided for. 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. It cannot be viewed in the manner the learned single
judge of Andhra Pradesh High Court has viewed it and we are therefore unable to
accept the position that Section 9 of the said Act is violative of Article 14
or Article 21 of the Constitution if the purpose of the decree for restitution
of conjugal rights in the said Act is understood in its proper perspective and
if the method of its execution in cases of disobedience is kept in view.
Another decision to which our attention was
drawn is also a Bench decision of the Andhra Pradesh High Court in the case of
Geeta Laxmi v. G.V.R.K. Sarveswara Rao. There on the admitted 316 misconduct of
the husband is not only in not complying with the decree for restitution of
conjugal rights but ill- treating the wife and finally driving her away from
the house, it was held that the husband was not entitled to a decree under
Section 13(1A) of the said Act in view of the wrong as contemplated under
Section 23(1) (a) of the Act.
The facts of that case were entirely
different from the facts of the instant case before us. There is no such
allegation or proof of any ill-treatment by the husband or any evidence of the
husband driving the wife out of the house. In that view of the matter, this
decision cannot be of any assistance to the appellant in the instant case.
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. Until altered by appropriate order on application on proper materials
such maintenance should be Rs. 200 per month for the wife appellant and Rs. 300
per month for the daughter Menka. Wife would be entitled to such maintenance
only until she re- marries and the daughter Menka to her maintenance until she
is married. Parties will be at liberty to ask for variation of the amounts by
proper application on proper materials made before Sub-judge 1st Class
Jullunder. The respondent would pay costs of this appeal to appellant assessed
at Rs. 1500.
The appeal is dismissed with the aforesaid
directions.
N.V.K. Appeal dismissed.
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