This article is written by Shafaq Gupta. This article provides a comprehensive overview of the judgement of Hirachand Srinivas v. Sunanda (2001), which was delivered by the Hon’ble Supreme Court of India. It particularly deals with the scope of divorce petitions as per Hindu marriage laws and the interrelation between Sections 13 and 23 of the Hindu Marriage Act, 1955.
Table of Contents
Introduction
In ancient times, Hindu marriage was considered a sacrament rather than a social contract. It was considered necessary for procreation and continuing the legacy of the family. Marriage was also necessary for the child to be considered as legitimate. But nowadays, the trend has changed, and it has become more of a social contract emerging from the ideals of equality and liberty. Hindu marriages in India are governed by the Hindu Marriage Act, 1955, which lays down various provisions to save the pious institution of marriage before granting a decree for divorce and completely severing the marital ties.
The case of Hirachand Srinivas v. Sunanda (2001) is a very significant judgement delivered by the Supreme Court of India that analyses the scope and objective of the divorce petitions filed under Section 13 of the Hindu Marriage Act, 1955 (referred to as the Act) on the grounds of non-resumption of cohabitation after the expiration of the period of one or more years of passing such a decree of judicial separation between both parties to the marriage. There is an established principle in law that one must come to court with clean hands. This case is a perfect example of it. It is an interplay among Section 10 (judicial separation), Section 13 (divorce), and Section 23 (decree in proceedings) of the Hindu Marriage Act, 1955. The appellant was the husband of the respondent, and he tried to take advantage of his own wrong by not paying the maintenance amount to his wife. He later filed a petition for divorce on grounds of non-resumption of cohabitation after one year of passing a decree for judicial separation.
Details of the case
- Case No.: Civil Appeal 1473 of 1999
- Court Name: Supreme Court of India
- Appellant: Hirachand Srinivas
- Respondent: Sunanda
- Date of the Judgement: 20th march, 2001
- Bench: D.P. Mohapatra (J) and Doraiswamy Raju (J)
- Relevant Citations: (2001) 4 SCC 125, AIR 2001 SC 1285
- Relevant provisions involved: Section 10, Section 13(1A)(i), and Section 23 of the Hindu Marriage Act, 1955.
Facts of Hirachand Srinivas vs. Sunanda (2001)
The facts of the case are that Hirachand Srinivas was the husband of the respondent. Earlier, the respondent had filed a decree for divorce from the husband on the grounds of adultery. On 06-01-1981, the Karnataka High Court passed a decree for judicial separation under Section 10 of the Hindu Marriage Act, 1955, whereby a one year period was given to them as an opportunity to cohabit together. The Court had also ordered the appellant to pay a maintenance sum of Rs. 100 to his wife and Rs. 75 to his daughter. No order as to compensation for the educational and marriage expenses of their daughter was passed.
The appellant failed to comply with the order of the High Court and did not pay even a single penny to the respondent. On 13-09-1983, the appellant filed a divorce petition under Section 13(1A)(i) of the Act for the purpose of dissolution of marriage on the grounds that there has been a non-resumption of cohabitation between the spouses for more than one year since the decree for judicial separation was passed earlier.
On 10-04-1995, the Karnataka High Court delivered the judgement and rejected the appellant’s petition for dissolution of marriage. It was rejected because the respondent argued before the court that the appellant failed to comply with the previous order of the court to pay maintenance and therefore wants to take advantage of his own wrong. The appellant had intentionally not complied with the order to lessen his own financial burden by not paying maintenance. These contentions were considered and accepted by the High Court while delivering the judgement. Against the above mentioned order of the High Court, the appellant approached the Supreme Court by way of special leave under Article 136 of the Constitution of India.
Issues raised
The following issues arose in the present case:
- Whether the petition filed by the husband (appellant) under Section 13(1A)(i) of the Act can be declined on the grounds that he failed to pay maintenance to his wife and daughter despite the order of the Karnataka High Court?
- Whether disobeying the order of the High Court by the appellant comes under the ambit of “wrong” as specified under Section 23 of the Act? Did the appellant want to take advantage of his own wrong by filing a divorce petition?
- Was the husband not under an obligation to cohabit after the decree for judicial separation was passed by the court as per Section 10 of the Act?
- Whether continuing to stay with another lady rather than his spouse also amounts to ‘wrong’ under Section 23 of the Act?
Arguments of the parties
Appellant
- The appellant, represented by Ms. Kiran Suri, made the contention that the prerequisite condition that is to be met for filing a petition for divorce under Section 13(1A)(i) of the Act is that there has been non-resumption of cohabitation between the parties to the marriage for the prescribed period of one year or more after the decree for judicial separation involving both spouses has been passed. The appellant submitted that there has been no resumption of cohabitation between the parties to the marriage after the expiration of the given period of one year; hence, a decree of divorce must be granted.
- Section 23(1)(a) of the Act provides that it is the duty of the court to examine whether the petitioner or the appellant does not take advantage of his own wrong for the purpose of getting the relief claimed. It is not connected to the provisions of Section 13(1A)(i). It was argued that Section 13 is absolute and that it is the right of the appellant to get divorce if all the conditions are met. Non-payment of the maintenance amount by the respondent and filing a petition for divorce are different cases, so both of them must not be dealt with simultaneously in a single case.
- The “wrong” that is alleged to have been committed by the appellant has no connection with the relief sought in the present case. The non-payment of the maintenance amount and the decree of divorce are two different cases. The respondent has the legal remedy to initiate a different proceeding according to the law to realise the due amount.
- Therefore, the appellant concluded by saying that the respondent had not committed any wrong by not paying the maintenance amount to his wife and daughter, and he should be granted divorce as prayed for.
Respondent
- The counsel for the respondent, Mr. K.R. Nagraja, contended that the appellant had a malafide intention to file a petition for a decree of divorce as he did not comply with the order of the Karnataka High Court to pay maintenance amount to his wife and daughter.
- The appellant continued to stay in adultery with another lady even after the decree for judicial separation had been passed.
- There had been no efforts on the part of the appellant (husband) to cohabit in the period of one year after the passing of such a decree.
- He contended that the appellant intended to take advantage of his wrong and is liable under Section 23(A) of the Act for the “wrong” committed.
- The respondent also pointed out a fault in the previous judgement delivered by the High Court that it did not pass any order relating to the educational and marriage expenses of their daughter. Therefore, the maintenance amount must also be decided for education and the marriage of the daughter, and the same must be paid to the respondent.
- Therefore, the respondent concluded the arguments by saying that the appellant must not be granted divorce as he committed a wrong by not paying the maintenance amount and filing the divorce petition just after the expiration of one year from the passing of the decree for judicial separation.
Relation between Sections 10, 13, and 23 of Hindu Marriage Act, 1955
Section 10 of Hindu Marriage Act, 1955
Section 10(1) of the Act provides for the decree of judicial separation, which may be passed by the court on any of the grounds mentioned under Section 13(1), and there are some grounds available specifically to the wife that are mentioned under Section 13(2). A petition for the same can be filed by either of the two parties to the marriage whose marriage has been solemnised as per Hindu law, whether before or after the commencement of the Act.
Clause (2) provides that after the decree for judicial separation has been passed, the petitioner is not under an obligation to live together with the respondent. But the Court has the power to rescind such a decree if it is satisfied with the truth of the statements and finds it reasonable to take such action.
Section 13 of Hindu Marriage Act, 1955
Section 13(1) of the Act provides that the divorce petition can be filed by either the wife or the husband, and whether their marriage is solemnised before or after the commencement of the Act is of no consideration. After the solemnization of marriage, it can be dissolved when one of the parties to the marriage;
- Had voluntary sexual intercourse with any person other than his or her spouse (i.e., adultery).
- On grounds of cruelty to the petitioner,
- On grounds of continuous desertion for a period not less than two years immediately before the petition was filed.
- The respondent ceased to be a Hindu by converting to another religion.
- Incurable unsoundness of mind.
- Either of them is suffering from an incurable type of leprosy.
- Either of them is suffering from an incurable communicable disease.
- Has renounced all worldly pleasures.
- Had not been heard alive for a continuous period of seven years by the people who must have naturally heard of it.
Section 13(1A) provides that a divorce petition can also be filed by either party to the marriage,
- on grounds of non-resumption of cohabitation between both spouses for a year or more after the decree for judicial separation has been passed involving both parties.
- on grounds of non-restitution of conjugal rights between both spouses for a year or more after the decree for restitution of conjugal rights has been passed involving both parties.
Section 23 of Hindu Marriage Act, 1955
Section 23(1)(a) of the Act provides that the Court can only grant relief if it is satisfied that the petitioner is not taking any advantage of his own wrong or disability for the motive of getting such relief, except when the relief is asked for under Section 5(ii)(a),(b),(c).
Earlier, there were nine grounds available for divorce under Section 13(1), but now only seven of them are there. The two of them were deleted and added under a new subsection, Section 13(1A) by 44th Amendment Act of 1964. It gave a broader scope to the filing of divorce petitions on the two grounds mentioned in the subsection. Now, it could be filed by either party to a marriage, unlike earlier, where it could only be filed by the party obtaining the decree for judicial separation or the decree for restitution of conjugal rights. All three sections are interrelated and have a connection with each other. Section 23 is applicable to Section 13, and Section 10 and 13 are in conjunction with each other. All three of them need to be considered together for a wholesome understanding of the Act.
Judgement in Hirachand Srinivas vs. Sunanda (2001)
The Supreme Court of India upheld the judgement delivered by the Karnataka High Court, as it was considered right to pronounce such a judgement. The appellant in the present case, i.e., Hirachand Srinavas, was not granted the claimed relief, and the divorce petition filed by him was dismissed along with the Rs 15,000 cost. The case was decided in favour of the respondent, i.e., Sunanda.
Rationale behind this judgement
The rationale behind the present judgement is that one cannot take advantage of his own wrong to do away with his responsibilities and also seek the required relief by the Court on some other grounds. All the facts of the case must be taken into consideration as a whole. Granting divorce by the court is not an absolute and unqualified right. It is restricted by the application of Section 23 of the Act, and hence, the decision is based upon the satisfaction of the Court.
In this case, the appellant did not pay the maintenance amount to his wife and daughter even after the order to such effect was passed by the Hon’ble Karnataka High Court and also continued to stay with a lady other than his spouse after the passing of a decree of judicial separation. This amounted to his continued adultery and not accepting his own mistakes. He did not make any efforts from his side to reconcile with his wife and just waited for the expiration period (one year from the date of the passing of decree for judicial separation) to get over it and file the divorce petition. So, he filed a divorce petition on the grounds of non-resumption of cohabitation under Section 13(1A) of the Act, which was not justifiable. It was held to be a ‘wrong’ as per Section 23 of the Act by the Supreme Court of India, as the right to divorce is not a vested right of any of the parties to marriage, and the court has the power to exercise its own discretion if it is not satisfied to grant the relief sought based upon all the facts and circumstances of the case. It can be clearly seen that the appellant had a malafide intention of not paying the maintenance amount and even continued to stay with another lady other than his spouse. He wanted to claim divorce in any possible way. It cannot be considered bona fide as per the law. So, the court dismissed his petition as it was violative of Section 23 of the Act. His divorce petition was rejected by the court. Thus, we can say that every attempt is made by the judiciary to save the sacred institution of marriage before the ties are permanently severed.
Issue-wise judgement
- Whether the petition filed by the husband (appellant) under Section 13(1A)(i) of the Act can be declined on the grounds that he failed to comply with the order of the Karnataka High Court to pay maintenance amount to his wife and daughter? Should the ‘wrong’ as stated in Section 23 be considered in connection with the grounds provided for divorce under Section 13 of the Act?
The contentions made by the appellant that Section 13 is an absolute and unqualified right were held to be faulty. Section 13(1A) just gave broad powers to either party to a marriage to file a divorce petition on the mentioned grounds, unlike earlier, where only the decree holder was conferred with such rights. It did not affect the application of Section 23 to any of the provisions of Section 13. No person should be allowed to take advantage of his wrong just for the purpose of obtaining the claimed relief. Therefore, the Court has the power to dismiss the petition if it is not satisfied, as per Section 23 of the Act, that the appellant had not taken any advantage of his own fault while claiming other reliefs under the Act.
- Whether non-payment of the maintenance amount by the appellant comes under the ambit of “Wrong” as specified under Section 23 of the Act? Did the appellant want to take advantage of his own wrong by filing a divorce petition?
Cohabitation, as defined by Mulla, basically means a married couple living together, performing their marital duties as a husband and a wife. Both must make equal efforts to cohabit again by performing their respective duties and treating each other as husband and wife. Cohabitation does not mean merely living together but also acting as husband and wife in real society. (17th edition of Mulla’s Hindu Law)
The court referred to the case of Dharmendra Kumar v. Usha Kumar (1977), in which it was held that the “wrong” alleged to be made under Section 23 means the conduct alleged is something more than a mere reluctance to accept an offer of reunion; it must be misconduct serious enough to justify denial of the relief to which the husband or wife is otherwise entitled.
In the present case, the husband failed to fulfil his duties by not providing the maintenance amount and continued to stay with the lady other than his wife. Therefore, he failed to make the required efforts to cohabit together and hence, committed a “wrong” as per Section 23 of the Act. It is clear from the facts and the circumstances of the case that he intended to take advantage of his own wrong by continuing to stay in adultery and just waiting for the expiration of a period of one year after the decree for judicial separation was passed by the Karnataka High Court so that he could file for divorce.
- Was the husband not under an obligation to cohabit after the decree for judicial separation was passed by the court as per Section 10?
The court interpreted Section 10(2) as follows: It is only applicable to the petitioner who filed the petition for judicial separation. It just terminates some of the rights and duties arising out of a marriage and is not the final order by the court. The court further opined that it is reversible if the couple is able to cohabit well within a period of one year and they give an application for withdrawal of the divorce petition. Every chance is given for reconciliation before the complete dissolution of a marriage. The court stated that both husband and wife should make sincere efforts to live along with each other peacefully and try to save their marriage from breaking. Not making any efforts to reconcile with his partner does not give the appellant the right to obtain a decree for divorce. Divorce is only granted when there is an irretrievable breakdown of marriage and things cannot be sorted out after making all the required efforts.
- Whether continuing to stay with another lady rather than his spouse also amounts to ‘wrong’ under Section 23?
The decree for judicial separation was granted by the High Court on the grounds of adultery by the husband. Even after that, no efforts were made by the husband to reconcile and cohabit with his spouse, and he continued to stay with another lady. This amounted to continued adultery. Therefore, it was held to be ‘wrong’ under Section 23. The court stated that the divorce petition was filed keeping in mind the expiration period of one year of such a decree, which can be considered to be done with the malafide intention of not bearing any responsibility to pay alimony and claim divorce. There was no bona fide intention of the appellant in his acts.
The court referred to the case of Soundarammal v. Sundara Mahalinga Nadar, (1980) for this particular issue. The single judge bench of the Madras High Court held that when the decree for judicial separation has been passed on the filing of such a petition by the wife and the husband continues to live in adultery, he cannot be granted divorce. The reason cited for this decision was that this relief is barred by Section 23(1)(a), as the relief is sought by taking advantage of his own wrong. The continued adultery and not complying with the order of the court are considered to be wrong in law.
Analysis of Hirachand Srinivas vs. Sunanda (2001)
Under Hindu law, marriage is considered as a sacrament rather than just a social contract. Every possible attempt is made under the Hindu Marriage Act, 1955, to preserve and protect it from dissolution unless the circumstances otherwise exist. Human beings have feelings that must be respected and cherished. When two people agree to a marriage, even the emotions and feelings of their families get connected, which needs to be protected. But, in some cases, divorce has to be granted for the peaceful living of everyone connected to that marriage. Under Section 13(1) of the Act, seven grounds have been given for divorce by either the husband or the wife. Two more grounds were added under Section 13(1A) by the 44th Amendment of 1976 just to widen the scope of divorce. All the provisions must be read subject to Section 23 of the Act, whereby no one must be allowed to take advantage of his own faults and cause a disadvantage to the other party.
There is an established principle in law that one must come to court with clean hands, which is reflected well in this case. The appellant never had a bona fide intention to save his marriage and hence, did not even try for the same. Therefore, the Supreme Court was right in dismissing his divorce petition and not granting him the claimed relief.
Conclusion
After reading and understanding the case in detail, we can infer that the high court was right in declining the relief to the appellant, and the same decision was upheld by the Supreme Court by further interpreting the scope of ‘wrong’ as per Section 23 of the Act and its interplay with Section 10 and Section 13 of the Act. In conclusion, a person cannot be granted a decree of divorce by taking advantage of his own wrongs. The person must have a bona fide intention to seek relief and not cause disadvantage to others by doing wrong. He must have knowledge of the consequences of his acts and be careful with them.
Frequently Asked Questions (FAQs)
Is divorce under Section 13 of HMA, 1955 an absolute and unqualified right?
No, it is not an absolute right. It is subject to the restrictions mentioned under Section 23 of the Act, which states that the court must be satisfied that the person claiming relief is not taking advantage of his own wrong and causing any wrongful loss to another person. It is not a vested right, and the decision is based upon the facts and circumstances of a particular case.
Is adultery still a ground for divorce under HMA, 1955?
Yes, it continues to be a valid ground for divorce as per Section 13 of the Hindu Marriage Act, 1955. But it was decriminalised as a criminal offence under Section 497 of the Indian Penal Code, 1860, in the case of Joseph Shine v. Union of India (2018). It was decriminalised as it was based upon gender discrimination between a man and a woman, as it only punished men for committing an offence of adultery and also lowered the dignity of women in society by considering them as the personal property of their husbands.
References
- https://www.aironline.in/legal-articles/Concept%20of%20taking%20Advantage%20of%20his%20or%20her%20Own%20Wrong%20in%20the%20Matter%20of%20Divorce%20on%20Breakdown%20Grounds
- https://legalvidhiya.com/hirachand-srinivas-managaonkar-vs-sunanda-air-2001-sc-1285/
- https://blog.ipleaders.in/analysis-of-section-13-of-hindu-marriage-act-1955/#:~:text=Section%2013(1A)%20of%20Hindu%20Marriage%20Act%2C%201955,-A%20spouse%20can&text=The%20term%20%E2%80%9Cresumption%20of%20cohabitation,under%20Section%2013(1A)
- https://blog.ipleaders.in/decriminalisation-of-adulter/
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