Holding

The Supreme Court held that a decree of divorce under Section 13(1‑A) may be refused if the petitioner is guilty of a 'wrong' within the meaning of Section 23(1)(a), such as refusal to pay maintenance and continued adultery.

Summary

In a marriage governed by the Hindu Marriage Act, the wife obtained a decree of judicial separation on the ground of the husband's adultery, and the husband was ordered to pay maintenance to his wife and daughter, which he failed to do. The husband later filed a petition for divorce under Section 13(1‑A) claiming that more than a year had passed without resumption of cohabitation. The High Court rejected the petition, holding that the husband was taking advantage of his own wrong by refusing maintenance and continuing adultery, which falls under Section 23(1)(a). The husband appealed to the Supreme Court. The Court examined the interplay between Sections 13(1‑A) and 23(1)(a) and held that Section 13(1‑A) does not confer an absolute right to divorce when the petitioner is guilty of a matrimonial wrong. Consequently, the Supreme Court affirmed the High Court’s decision, dismissing the appeal.

Issues considered

Whether a husband can be denied a decree of divorce under Section 13(1‑A) of the Hindu Marriage Act for failing to pay maintenance ordered by the court.
Whether the court may refuse divorce when the petitioner is taking advantage of his own wrong as defined in Section 23(1)(a) of the Act.

Legislation cited

Hindu Marriage Act, 1955s. 10(2), s. 13(1-A)(i), s. 23(1)(a)

Subjects

judicial separationdivorcemaintenanceadulterySection 13(1-A)Section 23(1)(a)cohabitationHindu Marriage Act

Judgment

HIRACHAND SR!NIVAS MANAGAONKAR A
v.
SUNANDA

MARCH 20, 2001

[D.P. MOHAPATRA AND DORAISWAMY RAJU, JJ.] B

Hindu Law:

Hindu Marriage Act, 1955: Sections 10(2), 13(1-A)(i) and 23(l)(a).

Judicial Separation-Maintenance not paid-Divorce petition- C
Maintainability of-Decree for judicial separation passed on wife's application
on ground of husband's adultery-Husband did not pay maintenance to wife
and daughter-Husband continued to live in adultery-Husband filed petition
for divorce as cohabitation not resumed for a period of more than one year-
Held : It is nor mandatory to grant decree of divorce merely because there is D
no cohabitation for the requisite period-After judicial separation it is the duty
of both spouses to do their parts for cohabitation-Husband in refusing to pay
maintenance to his wife and daughter and also living in adultery committed a
'wrong' within the meaning of S. 23( 1)( a)-Hence, High Court rightly refused
to grant a decl"ee of divorce.
E
Wonts and Phrases :

"Wrong"-Meaning of-In the con/ext of S. 23(1)( a) of the Hindu Mar-
riage Act, 1955.

The respondent-wife had filed a petition seeking judicial separation F
on the ground of adultery on the part of the appellant-husband. The High
Court passed a decree for judicial separation and directed the appellant to
pay maintenance to the respondent and his daughter.

Thereafter, the appellant presented a petition for dissolution
of marriage by a decree of divorce on the ground that there had been no G
resumption of cohabitation as between the parties to the marriage for a
period of more than one year after passing of the decree for judicial
separation. The High Court rejected the petition on the ground that the
appellant was trying to take advantage of his own wrong by not paying any
amount towards maintenance. Hence this appeal. H
491
J -.

492 SUPREME COURT REPORTS (2001] 2 S.C.R
A On behalf of the respondent it was contended that even after the
decree of judicial separation the appellant was living in adultery and,
therefore, the appellant's petition for divorce should be rejected.

The following questions arose before this Court :

B 1. Whether the husband who had filed a petition seeking dissolution
of the marriage by a decree of divorce under Section 13(1-A) of the Hindu
Marriage Act, 1955 could be declined relief on the ground that he had
failed to pay maintenance to his wife and daughter despite order of Court?

2. Whether in a petition for divorce filed under Section 13(1 ·A), it
c was open to the Court to refuse to pass a decree on any of the grounds
specified in Section 23 of the Hindu Marriage Act, 1955, in so far ·as any
one or more of them may be applicable?

Dismissing the appeal, the Court
D
HELD : 1. Section 13(1-A) of the Hindu Marriage Act, 1955 confers
a right on either party to the marriage so that a petition for divorce can be
filed not only by the party which had obtained a decree for judicial separa-
tion or for restitution of conjugal rights but also for the party against
whom such a decree was passed. The object of sub-section (1-A) is merely
E to enlarge the right to apply for divorce and not to make it compulsive that
a petition for divorce presented under sub-secticn (1-A) must be allowed
on a mere proof that there was no cohabitation or restitution for the
requisite period. The very language of Section 23 shows that it governs
every proceeding under the Act and a duty is cast on the Court to decree
F the relief sought only if the conditions mentioned in the sub-section are
satisfied, and not otherwise. [499-B-E]

2. After the decree for jucticial separation was pas.<ed, on the petition
filed by the wife, it was the duty of both the spouses to do their part for
cohabitation. The husband was expected to act as dutiful husband towards
G the wife and the wife was to act as a devoted wife towards the husband.
The husband in refusing to pay maintenance to the "ife failed to act as a ;
husband. Thereby he committed a 'wrong' within the meaning of Section
23 of the Act. Therefore, the High Court was justified in declining to allow
the p<ayer of the husband for dissolution of the marriage by divorce under
H Section 13(1-A) of the Act. (500-B-D]
H.S. MANAGAONKAR v. SUNANDA 493
3.1. Section 13(1·A) of the Act only enables either party to a mar- A
riage to file an application for dissolntion of the marriage by a decree of
divorce on any of the grounds stated therein. The Section does not provide
that once the applicant makes an application alleging fulfilment of one of
the conditions specified therein the court bas no alternative but to grant a
decree of divorce. Such an interpretation of the Section will run counter to
B
.
the provisions in Section 23(1)(a) of the Act. [500-G-H; 501-A]

3.2. If the provisions in Section 13(1-A) and Section 23(1)(a) are
read together, the position that emerges is that the petitioner does not have
a vested right for getting the relief of a decree of divorce against the other
party merely on showing that the ground in support of the relief sought as C
stated in the petition exists. [501-CJ

Dharmendra Kumar v. Usha Kumar, [1977] 4 SCC 12, held inapplica-
hie.

Mu/la's Hindu Law 17th Edn. p. 121, referred to. D
4.1. On a fair reading of Section 10(2) of the Act it is clear that the
provision applies to the petitioner on whose application the decree for judi·
cial separation has been passed. Even assuming that the provision extends to
both the petitioner as well as the respondent it does not vest any absolute
right in the petitioner or the respondent not to make attempt for cohabita· E
tion with the other party after the decree for judicial separation has been
passed. As the provision clearly provides the decree for judicial separation
is not final in the sense that it is irreversible; poweris vested in the court to
rescind the decree if it considers it just and reasonable to do so on an appli-
cation by either party. The effect of the decree is that certain mutual rights F
and obligations arising from the marriage are as it were suspended and the
..... rights and duties prescribed in the decree are substituted therefor. The de-
cree for judicial separation does not sever or dissolve the marriage tie, which
continues to subsist. It affords an opportunity to the spouse for reconcilia-
tion and re-adjustment. The decree may fall by a conciliation of the parties
in which case the rights of the respective parties, which float from the mar-
G
riage and were suspended,are restored. Therefore, the impression that Sec·
tion 10(2) vests a right in the petitioner to getthe decree of divorce notwith-
standing the fact that he has not made any attempt for cohabitation with the
respondent and has even acted in a manner to thwart any move for cohahi·
talion does notllow from a reasonable interpretation of the statutory provi· H
I
"
494 SUPREME COURT REPORTS [2001] 2 S.C.R.
A sions. It may be stated that the object and purpose of the Act is to maintain
the marital relationship between the spouses and not to encourage snapping ~
of such relationsh,ip. [502-D-H; 503-A]

4.2. In the present case, the respondent has not only failed to make
any such attempt but has also refused to pay the maintenance for the wife
B and has been marking time. for expiry of the statutory period of one year
after the decree of judicial separation so that he may easily get a decree of
divorce. In the circumstances it can reasonably be said that he not only
commits the matrimonial wrong in refusing to maintain his wife and
further estranges the relation creating acrimony rendering any
C reapprochement impossible but also tries to take advantage of the said
'wrong' for getting the relief of divorce. Such a conduct in committing a
default cannot in the fact• and circumstances of the case be brushed aside
as not a matter of sufficient importance to disentitle him to get a decree of
divorce under Section 13(1-A). [503-C·E]

D 5. Living in adultery on the part of the husband in this case is a
continuing matrimonial offence. The offence does not get frozen or wiped
out merely on the passing of a decree for judicial separation, which merely
suspends certain duties and obligations of the spouses in connection with
their marriage and does not snap the matrimonial tie. [504-F-G]

E Soundarammal v. Sundara Mahalinga Nadar, (1980) Mad. 294, ap-
proved.

Sumitra Manna v. Gobinda Chandra Manna, AIR (1988) Cal. 192 and
Bal Mani v. Jayantilal Dahyabha~ AIR (1979) Guj. 209, overruled.

F CNIL APPELL"J'E JURISDICTION: Civil Appeal No. 1473 of 1999.

From the Judgment and Order dated 10.4.95 of the Karnataka High
Court in M.F.A. No. 1436 of 1988.

Ms. Kiran Suri for the Appellant.

G KR. Nagaraja, K.K. Tyagi, A.P. Jain and M. Sharda for the Respond-
ent

The Judgment of the Court was delivered by

D.P. MOHAPATRA, J. The point that arises for determination in this
H case is short but by no means simple. The point is this: Whether the husband
H.S. MANAGAONKAR v. SUNANDA [D.P. MOHAPATRA, J.] 495
who has filed a petition seeking dissolution of the marriage by a decree of A
~ divorce under section 13(1-A) (i) of the Hindu Marriage Act, 1955 (for short
'the Act') can be declined relief on the ground that he has failed to pay
maintenance to his wife and daughter despite order of the Court?

Tue relevant facts of the case necessary for determination of the
B
question may be stated thus :

Tue appellant is husband of the respondent. On the petition filed by
the respondent- under section 10 of the Act seeking judicial separation on
the ground of adultery ou the part of the appellant a decree for judicial
separation was passed by the High Court of Kamataka on 6.1.1981. In the c
said order the Court considering the petition filed by the respondent, ordered
that the appellant shall pay as maintenance Rs.100 per month to the wife and
Rs.75 per month for the daughter. Since then the order has not been complied
with by the appellant and the respondent has not received any amount towards
maintenance. Thereafter, on 13.9.1983 the appellant presented a petition for
D
dissolution of marriage by a decree of divorce on the ground that there has
been no resumption of cohabitation as between the parties to the maniage
for a period of more than one year after passing of the decree for judicial
separation.

Tue respondent contested the petition for divorce on the ground, inter E
alia, that the appellant having failed to pay the maintenance as ordered by
the Court the petition for divorce filed by him is liable to be rejected as he
is trying to take advantage of his own wrong for getting the relief. Tue High
Court by the judgment dated 10.4.1995 in M.F.A.No.1436/1988 accepted the
plea taken by the respondent and rdi.tsed to grant the appellant's prayer for p
divorce. Tue said order is assailed by the appellant in this appeal by special
leave.

Tue answer to the question formulated earlier depends on the intei:preta-
tion of section 13(1-A) and its interaction with Sections IO and 23(l)(a) of
G
the Act.

Ms. Kiran Suri, learned counsel appearing for the appellant, contended
that the only condition for getting a divorce under section 13(1-A) is that
there has been no resumption of co-habitation between the parties to the
marriage for a period of one year or upwards after the passing of a decree H
496 ' SUPREME COURT REPORTS [2001] 2 S.C.R.

A for judicial separatiou io a proceediug tJ which both the spouses were parties.
If this pre-couditiou is satisfied, submitted Ms. Suri the Court is to pass a
decree of divorce. Accordiug to Ms.Suri sectiou 23 (l)(a) bas no application
to a case under section 13(1-A)(i). Altlematively, she contended that the
'wrong' allegedly conuuitted by the appellant has no connection with the
relief sought in the proceeding i.e. to pass a decree of divorce. According
B
to Ms.Suri an order for payment of maintenance is an executable order and
it is open to the respoudent to realise the amount due by initiating a
proceeding accordiog to law.

Per contra Mr.K.R.Nagaraja, learned counsel for the respondent,
c contended that in the facts and circumstances of the case as available from
the record the High Court rightly rejected the prayer of the appellant for a
decree of divorce on the ground that the move was not a bona fide one, that
he continues to live in adultery even after the decree for judicial separation
was passed and that he bas failed to maintain his wife and daughter. Mr.
Nagaraja submitted that granting his prayer for a decree of divorce will be
D putting a premium on the wrong conuuitted by the appellant towards the
respondent and her child. Sbri Nagaraja also raised the contention that the
High Court while directing the appellant to pay maintenance to his wife and
daughter (Rs.100 + Rs.75 per month) did not pass any order on the prayer
made by the respondent for education expenses and marriage expenses of
E the daughter.

Since the decision of tlie case depends on the interpretation of the
relevant provisions of section 13(1-A)(i) and its interaction with sections 10
and 23(1) (a) of the Act, the relevant portions of the two sections are quoted
hereunder:
F
"13.Divorce - (1) Any marriage solemnized, whether before or after
the commencement of this Act, may, on a petition presented by either 'JI.
the husband or the wife, be dissolved by a decree of divorce on the
ground that the other party-
G
(i) bas after the solemnization of the marriage, had voluntary
sexual iotercourse with any person other than his or her spouse,
or

(i-a) has, after the solemnization of the marriage, treated the petitioner
H with cruelty; or
"' I

H.S. MANAGAONKAR v. SUNANDA [D.P. MOHAPATRA, J.] 497
(i-b) has deserted the petitioner for a continuous period of not less A
than two years immediately preceding the presentatiqn of the petition;
or

xxx xxx xxx

(I-A) Either party to a maniage, whenever solemnized before or after B
the commencement of this Act, may also present a petition for the
dissolution of the maniage by a decree of divorce on the ground -

(i) that there has been no resumption of cohabitation as between
the parties to the marriage for a period of one year or upwards
after the passing of a decree for judicial separation in a
c
proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between
the parties to the marriage for a period of one year or upwards
after the passing of a decree for restitution of conjugal rights in D
a proceeding to which they were parties."

Section I 0 provides as follows :

"JO. Judicial separation - (I) Either party to a maniage, whether
solemnized before or after the commencement of this Act, may E
present a petition praying for a decree for judicial separation on any
of the grounds specified in sub-section(!) of Section 13, and in the
. case of a wife also on any of the grounds specified in sub-section (2)
thereof, as grounds on which a petition for divorce might have been
presented.
F
(2) Where ~ decree for judicial separation has been passed, it shall
no longer be obligatory for the petitioner to cohabit with the
respondent, but the court may, on the application by petition of either
party and on being satisfied of the truth of the statements made in such
petition, rescind the decree if it conside.rs it just and reasonable to do G
so."

Section 23(!)(a) provides as follows :

"23. Decree in Proceedings - (I) In any proceeding under this Act
whether defended or not, if the court is satisfied that - H
498 SUPREME COURT REPORTS [2001] 2 S.C.R.
A (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 talcing advantage of his
or her own wrong or disability for the purpose of such relief."

B Originally nine different grounds were available to a husband or wife
for obtaining a decree of divorce under sub-section (!) of Section 13. Under
clause (viii) of the sub-section a marriage could be dissolved by a decree of
divorce on a petition presented by the husband or the wife on the ground that
the other party has not resumed cohabitation for a period of two years or
c upwards after the passing of a decree for judicial separation against that party..
Under clause (ix) of the sub- section, a marriage could be dissolved by a
decree of divorce on a petition presented by the husband or the wife on the
ground that the other party had failed to comply with a decree for restitution
of conjugal rights for a period of two years or upwards after the passing of
a decree of restitution against that party.
D
Amending Act No.44 of 1964, which came into force on the 20th of
December, 1964, effected two significant changes. Clauses (viii) and (ix)
which constituted two of the nine grounds on which a marriage could be
dissolved by a decree of divorce were deleted from sub-section (1) aud
E secondly, a new sub-section i.e. sub-section (1-A) was added to Section 13.
It is clear from these amendments introduced by the Act No.44 of 1964 that
whereas prior to the amendment a petition for divorce could be filed only
by a party which had obtained a decree for judicial separation or for
restitution of conjugal rights, this right is now available to either party to the
marriage irrespective of whether the party presenting the petition for divorce
F
is a decree holder or a judgment debtor under the decree for judicial
separation or the decree for restitution of conjugal rights, as the case may be.
This position is incontrovertible.

The question is: whether in a petition for divorce filed under sub-
G section (1-A) of Section 13, it is open to the Court to refuse to pass a decree
on any of the grounds specified in section 23 of the Act, in so far as auy
one or more of them may be applicable.

The contention that the right conferred by sub- section (1-A) of Section
H 13 is _absolute and unqualified and that this newly conferred right is not
H.S. MANAGAONKAR v. SUNANDA [D.P. MOHAPATRA, J.] 499
subject to provisions of Section 23 is fallacious. This argument appears to A
be based on the erroneous notion that to introduce consideration arising under
Section 23(1) into the determination of a petition filed under sub-section
(I-A) of Section 13 is to render the amendments made by the Amending Act
No.44 of 1964 wholly meaningless. As noted earlier, prior to the amendment
under clauses (viii) and (ix) of Section 13(1) the right to apply for divorce
B
was restricted to the party which had obtained a decree for judicial separation
or for restitution of conjugal rights. Such a right was not available to the party
against whom the decree was passed. Sub-section (I-A) of Section 13 which
was introduced by the amendment confers such a right on either party to the
marriage so that a petition for divorce can after the amendment be filed not
only by the party which had obtained a decree for judicial separation or for c
restitution of conjugal rights but also for the party against whom such a
decree was passed. This is the limited object and effect of the amendment
introduced by Act No.44 of 1964. The amendment was not introduced in
order that the provisions contained in Section 23 should be abrogated and that
is also not the effect of the amendment. The object of sub-section (I-A) was D
merely to enlarge the right to apply for divorce and not to make it compulsive
that a petition for divorce presented under sub-section (I-A) must be allowed
on a mere proof that there was no cohabitation or restitution for the requisite
period. The very language of Section 23 shows that it governs every
proceeding under the Act and a duty is cast on the Court to decree the relief
sought only if the conditions mentioned in the sub-section are satisfied, and E
not oL'terwise. Therefore, the contention raised by tl1e learned counsel fer the
appellant that the provisions of Section 23(1) are not relevant in deciding a
petition filed under sub-section (I-A) of Section 13 of the Act, cannot be
accepted.
F
The next contention that arises for consideration is whether the appel-
lant by refusing to pay maintenance to the wife has committed a 'wrong'
within tl1e meaning of Section 23 and whether in seeking the relief of divorce
he is taking advantage of his own 'wrong'. In Mulla's Hindu Law (17th
Edition at page 121) it is stated: "Cohabitation means living together as
husband and wife. It consists of the husband acting as a husband towards the G
wife and the wife acting as a wife towards the hnsband, the wife rendering
housewifely duties to the husband and the husband supporting his wife as
a husband should. Cohabitation does not necessarily depend on whether there
is sexual intercourse between husband and wife. If there is sexual intercourse,
it is very strong evidence - it may be conclusive evidence -that they are H
500 SUPREME COURT REPORTS [2001] 2 S.C.R.
A cohabiting, but it does not follow that because they do not have sexual
intercourse they are not cohabiting. Cohabitation implies something different .-f
from mere residence. It must mean that the husband and wife have begun
acting as such and have resumed their status and position as husband and
wife."
(Emphasis supplied)
B
After the decree for judicial separation was passed on the petition filed
by the wife it was the duty of both the spouses to do their part for
cohabitation. The husband was expected to act as a dutiful husband towards
the wife and the wife was to act as a devoted wife towards the husband. If
C this concept of both the spouses making siucere contribution for the purpose
of successful cohabitation after a juc!icial separation is ordered then it can
reasonably be said that in the facts and circumstances of the case the husband
in refusing to pay maintenance to the wife failed to act as a husband. Thereby
he committed a 'wrong' within the meaning of Section 23 of the Act.
D Therefore, the High Court was justified in declining to allow the prayer of
the husband for dissolution of the marriage by divorce under Section 13(1-
A) of the Act.

In this connection it is also necessary to clear an impression regarding
the position that once a cause of action for getting a decree of divorce under
E section 13(1-A) of the Act arises the right to get a divorce crystallises and
the Court bas to grant the relief of divorce sought by the applicant. This
impression is based on a mis-interpretation of the provision in section 13(1-
A). All that is provided in the said section is that either party to a marriage
may present a petition for dissolution of the marriage by a decree of divorce
F on the ground that there bas been no resumption of cohabitation between the
parties to the marriage for a period of one year or more after the passing of
a decree for judicial separation in a proceeding to which they were parties
or that there has been no restitution of conjugal rights as between the parties
to the marriage for a period of one year or more after the passing of a decree
for restitution of conjugal rights in a proceeding to which both the spouses
G were parties. The section fairly read, only enables either party to a marriage
to file an application for dissolution of the marriage by a decree of divorce
on any of the grounds stated therein. The section does not provide that once
the applicant makes an application alleging fulfilment of one of the condi-
tions specified therein the Court has no alternative but to grant a decree of
H divorce. Such an interpretation of the Section will run counter to the
~(

H.S. MANAGAONKAR v. SUNANDA [D.P. MOHAPATRA, J.] 501

- ,. provisions in section 23(1)(a) or (b) of the Act. In section 23(1) it is laid
down that if the Court is satisfied that any of the grounds for granting relief
A

exists and further that the petitioner is not in any way taking advantage of
his or her own 'wrong' or disability for the purpose of such relief and in
clause (b) a mandate is given to the Court to satisfy itself that in the case
of a petition based on the ground specified in clause (i) of sub-section(!) of
B
section 13, the petitioner has not in any manner been accessory to or
connived at or condoned the act or acts complained of, or where the ground
... of the petition is cruelty the petitioner has not in any manner condoned
the cruelty and in (bb) when a divorce is sought on the ground of mutual
consent such consent has not been obtained by force, fraud or undue
influence. If the provisions in section 13(1A) and section 23(J)(a) are read c
together the position that emerges is that the petitioner does not have a vested
right for getting the relief of a decree of divorce against the other party
merely on showing that the ground in support of the relief sought as stated
in the petition exists. It bas to be kept in mind that relationship between the
spouses is a matter concerning hnman life. Human life does not run on dotted
D
lines or charted conrse laid down by statute. It bas also to be kept in mind
that before granting the prayer of the petitioner to permanently snap the
relationship between the parties to the marriage every attempt should be
made to maintain the sanctity of the relationship which is of importance not
only for the individuals or their children but also for the society. Whether
the relief of dissolution of the marriage by a decree of divorce is to be E
granted or not depends on the facts and circnmstances of the case. In such
a matter it will be too hazardous to lay down a general principle of universal
application.

,,
In this connection the decision of this Court in the case of Dharmendra F
Kumar v. Usha Kumar, [1977] 4 SCC 12 is very often cited. Therein this
Court taking note of the factual position that the only allegation made in the
written statement was that the petitioner refused to receive some of the letters
written by the appellant and did not respond to her other attempts to make
her live with him, held that the allegations even if true, did not amount to
misconduct grave enough to disentitle the wife to the relief she has asked for. G
In that connection this Court observed that in order to be a 'wrong' within
the meaning of section 23(1) the conduct alleged has to be something more
than a 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. The decision cannot be read to be laying H
502 SUPREME COURT REPORTS [2001] 2 S.C.R.
A down a general principle that the petitioner in an application for divorce is
entitled to the relief merely on establishing the existence of the ground
pleaded by him or her in support of the relief; nor that the decision Jays down
the principle that the Court has no discretion to decline relief to the petitioner
in a case where the fulfillment of the ground pleaded by him or her is
established. .
B
In this connection another question that arises for consideration is the
meaning and import of section 10(2) of the Act in which it is laid down that
where a decree for judicial separation has been passed it shall no longer be
obligatory for the petitioner to cohabit with the respondent, but the court may,
c on the application by petition of either party and on being satisfied of the
truth of the statements made in such petition, rescind the decree if it considers
it just and reasonable to do so. The question is whether applying this statutory
provision to the case in hand can it be said that the appellant was relieved
of the duty to cohabit with the respondent since the decree for judicial
separation has been passed on the application filed by the latter. On a fair
D
reading of the sub-section(2) it is clear that the provision applies to the
petitioner on whose application the decree for judicial separation has been
passed. Even assuming that the provision extends to both petitioner as well
as the respondent it does not vest any absolute right in the petitioner or the
respondent not to make any attempt for cohabitation with the other party after
E the decree for judicial separation has been passed. As the provision clearly
provides the decree for judicial separation is not final in the sense that it is
irreversible; power is vested in the Court to rescind the decree if it considers
it just and reasonable to do so on an application by either party. The effect
of the decree is that certain mutual rights and obligations arising from the
F marriage are as it were suspended and the rights and duties prescribed in the
decree are substituted therefor. The decree for judicial separation does not
sever or dissolve the marriage tie which continues to subsist. It affords an
opportunity to the spouse for reconciliation and re-acljusunent. The decree
may fall by a conciliation of the parties in which case the rights of respective
parties which float from the marriage and were suspended are restored.
G Therefore the impression that section 10(2) vests a right in the petitioner to
get the decree of divorce notwithstanding the fact that he has not made any
attempt for cohabitation with the respondent and has even acted in a mauner
to thwart any move for cohabitation does not flow from a reasonable
interpretation of the statutory provisions. At the cost of repetition it may be
H stated here that the object and purpose of the Act is to maintain the marital
H.S. MANAGAONKAR v. SUNANDA [D.P. MOHAPATRA, J.] 503
relationship between the spouses and not to encourage snapping of such A
relationship.

Now we come to the crucial question which specifically arises for
determination in the case; whether refusal to pay alimony by the appellant
is a 'wrong' within the meaning of section 23(1) (a) of the Act so as to
disentitle the appellant to the relief of divorce. The answer to the question,
B
as noted earlier, depends on the facts and circumstances of the case and no
general principle or straight-jacket formula can be laid down for the purpose.
We have already held that even after the decree for judicial separation was
passed by the Court on the petition presented by the wife it was expected
that both the spouses will make sincere efforts for a conciliation and cohabi- c
tation with each other, which means that the husband should behave as a
dutiful husband and the wife should behave as a devoted wife. In the present
case the respondent has not only failed to make any such attempt
but has also refused to pay the small amount of Rs.JOO as maintenance
for the wife and has been marking time for expiry of the statutory period
D
of one year after the decree of judicial separation so that he may easily
get a decree of divorce. In the circumstance& it can reasonably be said that
he not only commits the matrimonial wrong in refusing to maintain his wife
and further estrange the relation creating acrimony rendering any
reapprochement impossible but also tries to take advantage of the said
'wrong' for getting the relief of divorce. Such conduct in committing a default E
cannot in the facts and circumstance5 of the case be brushed aside as not a
matter of sufficient importance to disentitle him to get a decree of divorce
under section 13(1A).

In this connection the decision of a single Judge of the Calcutta High F

.., Court in the case of Sumitra Manna v. Gobinda Chandra Manna, AIR (1988)
Cal 192 may be referred where it was held that if alimony or maintenance
is ordered to be paid under the provisions of the Hindu Adoption and
Maintenance Ac~ 1956 or the Codes of Criminal Procedure of 1973 or of
1898 and the husband does not comply with the order, the same may under
certain circumstances secure an advantage to the wife in obtaining a decree G
for divorce under section 13(2) (iii) of that Act. But no advantage can or does
accrue to a husband for his failure to pay any alimony or maintenance to the
wife in obtaining a decree for divorce against the wife under section 13(1A)
and, therefore, the husband cannot be said to he in any way taking advantage
of such non-payment within the meaning of section 23(l)(a) in prosecuting H
504 SUPREME COURT REPORTS [2001] 2 S.C.R.
A his petition for divorce under section 13(1A). This decision, which proceeds
upon a narrow construction of the relevant provisions throwing overboard the i
laudable object underlying Section 23(1)(a) of the Act, in our view, does not
lay down the correct position of law.

"
The question tliat remains to be considered is whether in the facts and
B circumstances of the case in hand the appellant- husband can be said to have
committed and to be committing a 'wrong' within the meaning of section
23(1)(a) by continuing to live with the mistress even after passing of the
decree for judicial separation on the ground of adultery. The respondent
presented the petition seeking a decree of judicial separation on the ground
c that the appellant has been living in adultery since he is living with another
lady during the subsistence of the marriage with her. The Court accepted the
allegation and passed the decree for judicial separation. Even after the decree
the appellant made no attempt to make any change in the situation and
continued to live with the mistress. To pursue still into such an adulterous
life with no remorse, even thereafter, is yet another 'wrong' which he
D
deliberately continued to commit, to thwart any attempt to re-unite and, in
such circumstances can it be said that the passing of a decree for judicial
separation has put an end to the allegation of adultery; or that the chapter
bas been closed by the decree for judicial separation and therefore he cannot ,___
be said to have committed a 'wrong' by continuing .to live with mistress. The
E learned counsel appearing for the appellant placed reliance on a Division ..¥
Bench decision of the Gujarat High Court in the case of Bal Mani v.
Jayantilal Dahyabhai, AIR (1979) Guj. 209, in which the view was taken that
matrimonial offence of adultery bas exhausted itself when the decree for
.judicial separation was granted,'
and therefore, it cannot be said that it is a
F new fact or circumstance amounting to wrong which.will stand as an obstacle
in the way of the husband to successfully obtain the relief which he claims
in the divorce proceedings, and contended that the question should be
answered in favour of the husband as has been done by the Gujarat High
Court. We are unable to accept the contention. Living in adultery on the part
of the husband in this case is a continuing matrimonial offence. The offence
G does not get frozen or wiped out merely on passing of a decree for judicial
separation which as noted earlier merely suspends certain duties and obliga-
lions of the spouses in connection with their marriage and does not snap the ~

matrimonia~ tie. Jn that view of the matter accepting the contention raised on _A
behalf of the appellant would, in our view, defeat the very purpose of passing
H the decree for judicial separation. The decision of the Gujarat High Court
H.S. MANAGAONKAR v. SUNANDA [D.P. MOHAPATRA, J.] 505
does not lay down the correct position of law. On the other hand the decision A
of the Madras High Court in the case of Soundarammal v. Sundara Mahalinga
Nadar, AIR (1980) Madras 294, in which a single Judge took the view that
the husband who continued to live in adultery even after decree at the instance
of wife could not succeed in petition seeking decree for divorce and that
section 23(J)(a) barred the relief, has our approval. Therein the learned Judge
B
held and in our view rightly that illegality and immorality cannot be coun-
tenanced as aids for a person to secure relief in matrimonial matters.

On the discussions and the analysis in the foregoing paragraphs the
position that emerges is that the question formulated earlier is to be answered
in the affirmative. Therefore, the High Court, in the facts and circumstances C
of the case, was right in declining !he relief of a decree of divorce to the
appellant. Accordingly the appeal. is dismissed with costs. Hearing fee
assessed at Rs.15,000.

v.s.s. Appeal dismissed.
D