Hirachand Srinivas Managaonkar v. Sunanda (2001)

A husband obtained a judicial separation against himself on the ground of adultery, was ordered to pay his wife and daughter maintenance, paid nothing, went on living with his mistress, and waited out the statutory year so that he could ask for divorce. This is the decision that stops him. It holds that failure to pay court-ordered maintenance is a matrimonial wrong, and that adultery is a continuing offence which is not wiped out by the decree of judicial separation. For a woman it is the strongest authority that a husband cannot convert his own default into a ground of divorce.

On the wife's petition for judicial separation on the ground of adultery, the High Court of Karnataka passed a decree on 6 January 1981, and in the same order directed the husband to pay maintenance of one hundred rupees a month to the wife and seventy-five rupees a month for the daughter. The order was never complied with and the wife received nothing.

On 13 September 1983 the husband petitioned for divorce on the ground that there had been no resumption of cohabitation for more than a year after the decree of judicial separation. The wife resisted, saying that having failed to pay the maintenance ordered, he was trying to take advantage of his own wrong. The High Court accepted her plea and refused the divorce. He appealed.

His argument was that the only condition for the ground is the absence of cohabitation for the statutory period, so that the court must pass the decree; that the statutory bar has no application to that ground; and alternatively that the wrong alleged had no connection with the relief sought, a maintenance order being separately executable.

He had also continued to live with the mistress after the decree.

The appeal was dismissed with costs. The High Court was right to decline the decree of divorce. Both the refusal to pay maintenance and the continuance of the adulterous life amounted to wrongs within the bar.

1. Understand what judicial separation does. The decree does not sever or dissolve the marriage, which continues to subsist. Certain mutual rights and obligations arising from the marriage are suspended, and the rights and duties prescribed by the decree are substituted. The decree may be rescinded by the court where it is just and reasonable, and it falls on a reconciliation, upon which the suspended rights are restored. Its purpose is to afford an opportunity for reconciliation and readjustment.

1. Read the object of the Act. The object and purpose of the Act is to maintain the marital relationship between the spouses, not to encourage the snapping of that relationship. It therefore does not follow that the petitioner has a right to a decree of divorce although he has made no attempt at cohabitation and has even acted to thwart any move towards it. After the decree, both spouses were expected to make sincere efforts at conciliation and cohabitation.

1. Non-payment of maintenance is a wrong here. Whether it is depends on the facts; no straitjacket formula can be laid down. On these facts the husband not only made no attempt at reconciliation but refused to pay even the small sum of one hundred rupees for his wife, and was marking time for the expiry of the statutory year so that he might easily obtain a divorce. He thereby committed a matrimonial wrong, further estranged the relationship, made any rapprochement impossible, and then tried to take advantage of that wrong to get the relief. Such a default cannot be brushed aside as unimportant.

1. Reject the narrow construction. A Calcutta decision had held that a husband's failure to pay maintenance gives him no advantage in obtaining divorce and so is outside the bar. That decision proceeds on a narrow construction, throwing overboard the laudable object underlying the bar, and does not lay down the correct position of law.

1. Adultery is a continuing offence. After the decree the husband made no change in the situation and went on living with the mistress. To pursue such a life with no remorse even after the decree is yet another wrong, deliberately continued in order to thwart any attempt to reunite. A Gujarat decision holding that the offence of adultery had exhausted itself once the decree was granted was disapproved: the offence does not get frozen or wiped out by a decree which merely suspends certain duties and does not snap the matrimonial tie, and to hold otherwise would defeat the very purpose of the decree. The contrary Madras view was approved, that illegality and immorality cannot be countenanced as aids to securing relief in matrimonial matters.

It opens the question of the statutory bar in its strongest form. The sequence is: the ground is made out on its face; then ask what the petitioner did during the statutory period; if he disobeyed a maintenance order, or continued the very offence that produced the decree, the relief is barred.

It disposes of the argument that the divorce ground following judicial separation is mechanical, and the argument that a maintenance order is merely executable and therefore irrelevant to the matrimonial proceeding.

It does not decide that every default in maintenance bars relief — the Court says expressly that no general principle can be laid down and that everything turns on the facts. Read it with the case where mere non-compliance with a restitution decree was held not to be a wrong; the difference is whether the petitioner merely failed to act or actively did wrong.