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Report No. 59

2.24. Question whether husband should be given the right.-

Having reached this conclusion, we have to consider the second question already formulated1. Should a husband be given liberty to apply for a decree of divorce in cases falling under the Code? Prima facie, it may appear that, accepting the analogy2 of clauses (i) and (ii) of section 13(1A), there should be no objection to conferring a right on the husband similar to the one which it is proposed to confer on the wife by the proposal. If the order for maintenance under the Code is virtually and, in substance, the result of the cruelty practised by the husband against his wife, why not allow the husband to claim a decree of divorce subject to the conditions prescribed by the proposal?

1. Para. 2.21, supra.

2. Para. 2.20, supra.

2.25. We have carefully considered this aspect of the matter; but, after elaborate discussion of the pros and cons, we have come to the conclusion that, having regard to the social conditions prevailing in our country, if liberty is given to the husband to apply for a decree of divorce in cases under which an order has been passed under the Code, in a large majority of cases, it may work great hardship to the wife. Moreover, we do not think that the guilty party-namely, the husband who is proved to have neglected or refused to maintain his wife, should be allowed to take advantage of his own wrong and get rid of the obligation imposed by the order for maintenance.

We are conscious that if, on the same cause of action, the wife applies for a decree of judicial separation under section 10(1), the husband would be entitled to claim for a decree of divorce, subject to the conditions prescribed by section 13(1A). But the wife may not adopt such a course, she may not proceed under section 10(1) for judicial separation or under section 13, for divorce. She may remain satisfied with an order for maintenance under the Code. In such case the husband cannot-and should not-(because on the hypothesis, he is guilty of cruelty), claim a decree of divorce under section 13(1A).

2.26. There are two more considerations which are relevant, and to which a reference must be made. One consideration is in favour of extending to the husband the option to claim a decree for divorce in cases falling under the Code. It may be said that a wife, grievously embittered by her husband's neglect or refusal to maintain her, may, out of spite or malice, refuse to avail herself of the option to ask for a decree for divorce and thereby prevent her husband from marrying another woman. But the short answer is that the wife would thereby be denying herself an opportunity to marry again and that, from a psychological point of view, is very unlikely.

On the other hand, if the right to claim divorce in such cases is conferred on the husband, it may be abused by the husband. It is not unlikely that a husband who is keen to get rid of his wife, will deliberately abandon her, and if a proceeding is brought against him under the Code, would readily submit to an order for payment of maintenance to her in the full knowledge that, after the lapse of the prescribed period, he will be able to get a decree of divorce and carry out his intention to marry another woman. In such a case, the wife will be exposed to grave jeopardy and in fact, may have to face the cruelty of vagrancy, which would be ironical because the prevention of vagrancy in the case of an abandoned wife is the very basic philosophy on which the section in the Code if founded.

2.27. Having considered all the relevant facts, we are not prepared to recommend the extension of the principle contained in the proposal to the husband.

2.28. This disposes of the main question. Now, some matters of detail regarding the above proposal may be referred to. We think that the period of one year should be enough1. We are also of the view that the condition should be non-resumption of cohabitation, rather than absence of marital intercourse or as is put in the Ministry's proposal2. Finally, we think that the provision proposed should apply also to a decree for maintenance obtained by a wife who is justifiably living apart3, under the Hindu Adoption and Maintenance Act, section 18(2).

1. Cf. section 13(1A), H.M.A. as proposed to be amended.

2. Para. 2.19, supra.

3. See, section 18(2), Hindu Adoption and Maintenance Act, 1956.

Hindu Marriage Act, 1955 and Special Marriage Act, 1954 Back

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