Holding

A decree of divorce cannot be granted on the ground of an irretrievably broken marriage when the petitioner is guilty of adultery, as Section 23 bars a party from taking advantage of his own wrong.

Summary

Chetan Dass married Kamla Devi in 1976 and, after about two years, filed for divorce under Section 13 of the Hindu Marriage Act, which was dismissed when the couple's relations improved. The wife later lodged a criminal complaint alleging the husband’s illicit relationship with a nurse, prompting the husband to seek restitution of conjugal rights under Section 9, which he later converted to a petition for dissolution of marriage. The trial court, affirmed by the Rajasthan High Court, held that the husband’s adultery was proved and that the wife’s alleged desertion was not established, consequently refusing a decree of divorce. On appeal, the Supreme Court examined whether a decree could be granted on the ground of an "irretrievably broken marriage" when the petitioner is guilty of misconduct, invoking Section 23 of the Hindu Marriage Act. The Court held that a petitioner cannot take advantage of his own wrong, and therefore a decree of divorce could not be granted. The appeal was dismissed with costs.

Issues considered

The applicability of Section 23 of the Hindu Marriage Act, 1955 in denying a decree of divorce when the petitioner is at fault for adultery
Whether the wife’s alleged desertion of the husband without reasonable cause is proved
Whether the ground of "irretrievably broken marriage" can be a standalone basis for divorce in the presence of the husband’s misconduct

Legislation cited

Hindu Marriage Act, 1955s. 13, s. 23, s. 9
Indian Penal Code, 1860s. 120-B, s. 494

Subjects

divorceHindu Marriage Actirretrievable breakdownadulterySection 23restitution of conjugal rightsadvantage of own wrongmatrimonial law

Judgment

A CHETANDASS
v.
KAMLADEVI ....
APRIL 17, 2001

B
[D.P. MOHAPATRA AND BRIJESH KUMAR, JJ.]

Hindu Lmv:

c Hindu Marriage Act, 1955: Sections 9, 13 and 23.

lvfarriage-Irretrievable breaking down of-Dissolution of-By grant
of decree of divorce-Principles-Husband filed application for divorce after
about 2 years of marriage but got the petition dismissed after rel~tions
between him and his wife improved-Thereafter, wife filed complaint under
D S.494 read with S.120-B IPC-SubsequentZv, husband filed petition for
restitution of conjugal rights under S.9 and converted it to one of dissolution
of marriage-Wife contested the petition alleging illegitimate relationship of
the husband with a Nurse-Wife was willing to live with husband provided
--¥"
he discontinued the illegitimate relationship with the said Nurse-Trial
t
court refused to grant decree of divorce-High Court upheld the findings of
E trial court--Validity of-Held: Matrimonial matters are matters of delicate
human and emotional relationship- "Irretrievable breaking down" of
man-iage is not an automatic ground for grant ofrelief of divorce-Allegation
of adulterous conduct of husband has been found to be correct-Husband'.'>
behaviour falls in the category ofmisconduct on his part-Therefore, husband
F cannot be given the advantage of his own wrong-Hence, decree of divorce
on the ground of marriage having been irretr~e_vably broken down cannot
be granted.
"
The appellant-husband filed an a11plication under Section 13 of the Hindu
Marriage Act, 1955 for divorce after about 2 years of marriage but got the
G petition for divorce <Jismissed after relations between the appellant and the
respondent-wife improved. Thereafter, the respondent filed a complaint against
the appellant under Section 494 read with Section 120-B of the Penal Code, ··-
1860. The appellant, therefore, filed a petition for restitution of conjugal
rights under Section 9 of the Act. Subsequently, the appellant converted the !I

petition to one of dissolution of marriage under Section 13 of the Act.
H 20
''f

CHETAN DASS v. KAMLA DEVI 21
The respondent contested the petition alleging that the appellant had A
been carrying on illegitimate relationship with a Nurse. However, the
) respondent was still willing to live with the a11pellant 1>rovided the appellant
,,. discontinued his relationship with the said Nurse. The trial court refused to
grant a decree of divorce by dissolving the marriage. The High Court upheld
the findings of the trial court. Hence this appeal.
B
On behalf of the appellant it was contended that the marriage between
the appellant and the res1mndent had irretrievably broken down and, therefore,
a decree of divorce should be granted.

Dismissing the appeal, the Court
~ c
HELD : 1. Matrimonial matters are matters of delicate human and
emotional relationship. It demands mutual trust, regard, respect, love and
affection with sufficient play for reasonable adjustments with the spouse.
The 1·elationshi11 has to confirm to the social norms as well. The matrimonial
conduct has now come to be governed by the Statute framed, kee11ing in view
D
of such norms and changed social order. It is sought to be controlled in the
interest of the individuals as well as in broader perspective, for regulating
matrimonial norms for making of a well knit, healthy and not a disturbed and
y- porous society. Institution of marriage occupies an important place and role
to play in the society, in general. Therefore, it would not be appropriate to
ap1J1y any submission of "irretrievably broken marriage" as a straight .iacket E
formula relief of divorce. This aspect has to be considered in the background
of the other facts and circumstances of the case. [28-E-F]

Chanderka/a Trivedi (Smt.) v. Dr. S.P. Trivedi, [1993] 4 SCC 232; Ramesh
Chander v. Savitri (Smt.), [1995] 2 SCC 7 and Smt. Saro} Rani v. Sudarshan
).. Kumar, [1984] 4 SCC 90, held inapplicable. F

2. In the present case, the allegations of adulterous conduct of the
appellant have been found to be correct and the courts below have recorded a
finding to the same effect. In such circumstances the provisions contained
under Section 23 of the Hindu Marriage Act, 1955 would be attracted and the
G
... appellant would not be allowed to take advantage of his own wrong. Let the
things be not misunden1ood nor any llermissiveness under the law be inferred,
allowing an erring party who has been found to be so by recording of a
finding of fact in judicial proceedings, that it would be quite easy to push and
"' drive the spouse to a comer and then brazenly take a plea of desertion on the
11art of the party suffering so l'ong at the hands of the wrong-doer and walk H
22 SUPREME COURT REPORTS [2001] 3 S.C.R.

A away out of the matrimonial alliance on the ground that the marriage has
broken down. Lest the institution of marriage and the matrimonial bonds get
fragile easily to be broken which may serve the purpose most welcome to the -~.

wrong-doer who, by heart, wished such an outcome by passing on the burden 4

of his wrong-doing to the other party alleging her to be the deserter leading
to the breaking point [31-B-D]
B
3. In this case, the averments made in the petition for obtaining a decree
for divorce, namely, desertion on the part of the wife without any reasonabte
cause have not been found to be correct The petition was liable to be dismissed
on that ground alone. The defence of the respondent for having a justified
reason to live away from the husband has been found to be correct. The
c behaviour ofthe appellant certainly falls in the category of misconduct on his
'yr

part. In _such circumstances, it is too much on his 1>art to claim than he be
given the advantage of his own wrong and be granted a decree of divorce on
the ground of desertion on the part of his wife who is still prepared to live
with him J>rovided he snaps his relationship with the Nurse. Similar offer
D had also been made on behalf of the appellant The appellant perhaps prefers
to snap the relationshi1> with the respondent rather than with that Nurse. A
decree of divorce on the ground of marriage having been irretrievably broken
down cannot be granted in the facts and circumstances of the case.
-y
(31-G-H; 32-A]

E CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14740 of
1996.

From the Judgment and Order dated 15.1.96 of the Rajasthan High Court
in S.B.C. Misc. No. 116of1989.

R. Venkataramani and Satya Mitra Garg for the Appellant.
F
Sudhir Mendiratta and Krishnanand Pandeya for the Respondent.

The Judgment of the Court was delivered by

BRIJESH KUMAR, J. This is an appeal by the husband challenging the .....
G judgment and order passed by the Rajasthan High Court, upholding the
judgment passed by the District Judge, Sriganganagar, dis1nissing the petition ...,
of the appellant under Sec6.on 13 of the Hindu Marriage Act, 1955 praying
for dissolution of marriage by granting a. decree of divorce.
,.;
The appellant, Chetan Dass, and the respondent, Smt. Kamla Devi,
H were married on November 30, 1976 at Vtjaynagar, District Ganganagar according
CRETAN DASS v. KAMLA DEVI [BRIJESH KUMAR, J.] 23

to the Hindu rites and rituals. The appellant was serving as Compounder in A
the Medical Health Department in the State of Rajasthan. After the marriage,
the respondent was taken to Kirawad, the original village of the appellant,
where she stayed for about 8-9 months. The appellant was posted in
Government Hospital in Hanumangarh. He had been visiting his village home
off and on. According to the appellant, since his village house was a kucha
structure with insufficient residential accommodation, the respondent was not B
happy as she came from better background and standard of living. Therefore,
she had always been interested in living with her parents in Vijaynagar. It is
also the case of the appellan1 that the parents of the respondent always
desired that he may get himself transferred to Vijaynagar and, for that purpose,
many items of presentations in dowry at the time of marriage, for example, bed C
and bedding, sofa set, almirah and golden jewellery etc. were retained at
Vijaynagar. It was, however, not possible for the appellant to live at Vijaynagar.
The marriage ofDW-3, Ravi Kumar, the brother ofKamla Devi, was to take
place in November, 1977 and, 'in that connection, she left for her parents'
house at Vijaynagar in October, 1977: She did not return after the marriage of
her brother despite requests made by tl_i.e appellant and his parents for her D
return. On the other hand, it is stated that she started making allegations
against the appellant for leading an adulterous life. The appellant felt mentaliy
y tortured on such false allegations. He, therefore, filed an application under
Section 13 of the Hindu Marriage Act after about 2 years of the marriage but
later the relations between the two improved. The appellant, therefore, got his E

- petition for divorce dismissed. Kamla Devi started living at the residence of
Chetan Dass in· Kirawad and they had also consummated their marriage. The
case of the appellant further is that as desired by Smt. Karnla Devi, Chetan
Dass brought her to Ganganagar and both started residing in Ganganagar. But
this could not pull on for long and the respondent is said to have always been
pressurising the appellant to permanently reside in Vijaynagar. After some F
time, Lokuram, fat11er of the respondent, took her back to Vijaynagar. All
efforts made by the appellant, his relatives and members of their community
failed to persuade Kamla Devi to return to live with Chetan Dass any more.
According to the appellant, the brief period during which Kamla Devi had
changed her attitude and had started living with him was not a genuine G
gesture on her part or an effort to live together ratl1er it was for the purpose
that the appellant got his divorce petition dismissed. The relations between
the two further deteriorated and a complaint is also said to have been filed
by the respondent under Section 494 read with S;!ction 120-B IPC. According
to the appellant, the respondent had been keeping away from the company
of the appellant and had not been discharging her matrimonial obligations. H
24 .' SUPREME COURT REPORTS (2001] 3 S.C.R.

A Such attitude on her part ultimately resulted in the filing of a petition by the
appellant for restitution of conjugal rights in the year 1982. The respondent
filed her written statement denying the allegations made against her and
further stated in the reply that the appellant had been carrying on illegitimate
relationship with one Ms. Sosamma Thomas, a nurse in the hospital. According
B to the appellant, the allegations made by the respondent mentally tortured him
and looking to her conduct and behaviour in deserting him without any
reasonable cause, he got the petition amended by moving an application
under Order 6 Rule 17 CPC which was allowed, making a prayer for dissolution
of marriage converting the petition from one under Section 9·to Section 13
of the Hindu Marriage Act on 23.7.1986.
c The respondent contested the petition and refuted the allegations
made against her. According to her, she never objected to or expressed any
dissatisfaction on account of alleged uncomfortable stay at Kirawad. On the
other hand, she stayed there with the paren(s of the appellant without any
objection. Her main grievance was with regard to the relationship which,
D according to her, exists between the appellant and Ms. Sosamma Thomas who
is a nurse in the hospital. The trial court, on the basis of pleadings, framed
two issues :-

(1) Whether Kamla Devi has deserted the plaintiff Chetandas for
two years prior to the filing of the application and thus applicant
E is entitled for a decree of dissolution of marriage?
(2) Whether the respondent Kamla Devi treated the plaintiff
Chetandas with cruelty if so, the plaintiff is entitled to dissolve
his marriage with respondent by decree of divorce?

F The third issue was about the relief to which the plaintiff may be found
entitled to.

The petitioner-appellant examined only himself in support of his case.
The respondent besides herself examined her father Lokuram - D.W. l,
D.W.-3 Ravi Kumar, her brother and D.W.-4 Banwari Lal.
G
The trial court considered the matter in great details in the background
of the evidence available on record. The respondent Smt. Karola Devi stated
in her statement that the allegations made against her that she was unwilling
to live with the petitioner and his parents at Kirawad was incorrect. As a
matter of fact, according to her, she had no complaint whatsoever against the
H parents of her husband and had been staying there with them in Kirawad
CRETAN DASS v. KAMLA DEVI [BRIJESH KUMAR, J.] 25
without any difficulty. She also denied the allegations that she wanted Chetan A
Dass to live permanently in Vijaynagar. In the year 1980, when the appellant
~ had taken her to Ganganagar to live with him on the persuasion of his father
and others, the nurse Sosamma Thomas was living in the upper storey of the
same building. The sister of Chetan Dass was also sent to accompany the
respondent, perhaps with an idea that it may bring some normalcy in the
B
conduct and behaviour of Chetan Dass. But despite that, the case of the
respondent has been that Chetan Dass nom1ally lived in the upper storey with
Sosamma Thomas and has been taking his food and sleeping with her. It was
against all nom1s and an open defiance to the matrimonial relationship. Yet
another fact which finds place on the record is that on the efforts made at
the instance of the father of the respondent, Sosanuna Thomas was transferred c
outside but she did not go there to join. The appellant again got her transferred
to Ganganagar from Nachana hospital in District Jaisalmer. During this period
Sosamma remained on leave. All efforts made by Lokuram, the father of the
respondent, and the respondent herself went in vain and the appellant is said
to have refused to leave Sosamma Thomas though, he had made such a D
promise before the other people of the community namely, Narendra Nath
Gauri, his uncle and others on the basis of which she had gone to Ganganagar
to live with him. The father of the respondent namely, D. W.1- Lokuram, stated
y
in his statement that so long as hl.s daughter stayed in Kirawad, she never
made any complaint against the behaviour of her in-laws.
E
The appellant only admitted that Sosanuna Thomas \Vas a nurse posted
in Ganganagar hospital and he knew her only as one of the member of the
staff. He had not denied that he resided at 160, Mukherjee Nagar in
Sriganganagar. But he feigned his ignorance about the fact that Sosamma
)._ Thomas was also living in the same building in the upper storey in Ganganagar. F
The trial court has also observed that he could not deny that his sister
Rajrani, who was sent to live with them in Ganganagar, had complained to his
parents about his relationship with the nurse Sosanuna Thomas. The trial
~ court also observed that the petitioner did not examine any witness in support
of his case nor even his brother, sister or parents. The respondent had come

... out with a definite assertions that in Ganganagar, she was living with Rajrani,
the sister of Chetan Dass who had accompanied her to Ganganagar whereas
Chetan Dass was practically living in the upper storey in the room of Sosanlffia
G

Thomas and had been taking his food and sleeping there only. The court
below had also observed that Rajrani could very well .throw some light on the
state of affairs on this point. H

/
+· , \___

26 SUPREME COURT REPORTS [2001] 3 S.C.R

A The respondent,, Smt. Kamla Devi, also denied the allegation that she
wanted Chetan Dass to live in Ganaganagar or she expressed any
dissatisfaction on her part about the standard of living of Chetan Dass in his ~
village Kirawad. None of the relati~ns of the appellant namely, the parents or
brothers or sisters made any complaint against the behaviour of Kamla Devi,
besides her brother, D. W.-4 Banwari Lal had also supported her case.
B
The trial court thus considering all the evidence and the facts and
circumstances of the case, came to the conclusion that there existed illegitimate
relationship between Chetan Dass and Sosamma Thomas. The affair was
since prior to the marriage which continued even thereafter. It is further held
c that in such circumstances, it is not possible for any self- respecting woman r
to live with her husband. Besides the findings as indicated above, it has also I-
been found that the main allegation made by the appellant about desertion
by Smt. Kamla Devi, on the ground that his house at Kirawad was in bad
condition and their standard of living was unsatisfactory and that she wa.-ited
him to permanently shift to Vijaynagar, was incorrect and baseless. Considering
D certain decisions, the learned Judge held that where a wife refuses to live witl1
the husband having relationship witl1 another woman, ill such a situation, the
conduct of the wife cannot be termed as wilful desertion of her husband. The
reasons thus given by the respondent for keeping away from the company
~
of her husband has been found to be valid whereas the reasons assigned by
E the appellant for his wife being not ready to live with him, have been found
to be false. The ttial court thus refused to grant decree of divorce by dissolving
the marriage

In the appeal preferred by the appellant in the High Court, the findings
recorded by the trial court have been upheld. The Appellate Court also made
F an observation that in the facts and circumstances of the case, the best ,.(

~
evidence would have been of the persons living in the neighbourhood of the
couple in Sriganganagar and the evidence of petitioner's father and his sister
Rajrani as they are said to be aware of the adulterous behaviour of the
petitioner-appellant. In.our view, the said observation is quite correct. Rajrani, ~
the sister of the appellant, accompankd the respondent to live with the
G couple ~amely, Chetan Dass and Kamla Dev~, her brother and his wife
respectively. There is no dispute that she lived with them. According to the ":'
respondent, the appellant had practically been living, having his meals and
staying by night, in the upper storey of the house in occupation of Sosamma
,,I
Thomas. The Appellate Court was perfectly justified in observing that the I-

H evidence of the appellant's sister would have been quite cmcial. But she was
CHETAN DASS v. KAMLA DEVI [BRIJESH KUMAR, J.) 27
not produced by the brother in support of his case. The father of the appellant A
also did not come to his rescue by entering into the witness box for his son
who could very well support the case of the appellant at least to tl1e extent,
if it was true, that the respondent was unhappy due to the alleged
unsatisfactory living condition in Kirawad. From the side of the respondent,
her father and brother had entered into the witness box and nothing seems
to have been elicited to disbelieve their statements or establish that they were B
taking shelter under falsehood. No presumption can be raised that they have
given false evidence in favour of the respondent being her close relations or
her own kith and kin. Apart from those persons, D.W.-4 also supported her
case. The learned Appellate Court, in our view, rightly came to the conclusion
that the relief could not be granted to the appellant by passing a decree of C
divorce by dissolving the marriage on the ground that the marriage had
broken down irretrievably.

Learned counsel for the appellant has vehemently urged that the facts
and circumstances of the case clearly show that the relationship between the
respondent and the appellant has totally broken and there seems to be no D
chance of retrieval at all. He has also emphasised on the fact that a long
period has lapsed since the marriage was performed in the year 1976. They
lived together only for a short stint. Initially the resp1mdent stayed in Kirawad
immediately after the marriage and remained there for 8 or 9 months and later
in the year 1981 when she went to live with the appellant in Sriganganagar. E
It was also for a period of about three months. The rest of the period they
lived apart. In such circumstances, it is submitted that it will serve no purpose
to prolong the agony and it may only be appropriate that the bond of marriage
be snapped by granting a decree of divorce and the parties may feel relieved
and pass rest of the period of their life peacefully.
F
During the course of the arguments, learned counsel for the appellant,
so as to show that the allegations made against the appellant about having
illegitimate relationship with Sosamma Thomas, submitted that the appellant
is still prepared to keep the respondent Kamla Devi with him. According to
him, the appellant never refused to live with her. In reply, learned counsel for G
the respondent submitted that the respondent was also prepared to live with
the appellant provided that he discontinued his relationship with Sosamma
Thomas. The hollowness of the submission that the appellant was still
prepared to keep the respondent with him is quite apparent. It is on the record
that it was on some undertaking that the respondent was taken to Ganganagar
by the appellant to live with him but there she was subjected to humiliating H
~,I

28 SUPREME COURT REPORTS [2001] 3 S.C.R.

A treatment meted out to her by the appellant himself having his food only in
the room of Sosamma Thomas and staying there during night leaving his wife
and sister alone on the ground floor. With this kind of attitude, the offer as
made on behalf of the appellant is too shallow to deserve any serious thought.
At the same time, the condition on which the respondent is prepared to live
B with him seems to be quite justified, that is to say, she is still prepared to live
with him provided he behaves and snaps. his relationship with the other
woman. It is apparent that it is the own conduct of the appellant which lead
the respondent to live separate from the appellant. None else, but the appellant
alone, is to be blamed for such an unhappy and unfortunate situation. The
findings of facts, as recorded by the two courts below, do not deserve to be
C disturbed in any manner nor they have been seriously assailed before us.

As observed earlier, the learned counsel for the appellant has merely
stressed for grant of relief on the ground that the marriage has completely
failed and has irretrievably broken. In connection with this submission, it may
be observed that it all depends on the facts and circumstances of the case
D ~s to in which case it would be appropriate to grant the relief as prayed.

Matrimonial matters are matters of delicate human and emotional
relationship. It demands mutual trust, regard, respect, love and affection with
sufficient play for reasonable adjustments with the spouse. The relationship
E has to conform to the social norms as well. The matrimonial conduct has now
come to be governed by Statute framed, keeping in view such norms and
changed social order. It is sought to be controlled in the interest of the
indiv1duals as well as in broader perspective; for regulating matrimonial norms
for making of a well knit, healthy and not a disturbed and porous society.
Institution of marriage occupies an important place and role to play in the
F society, in general. Therefore, it would not be appropriate to apply any
submission of "irretrievably broken marriage " as a straight jacket formula for
grant of relief of divorce. This aspect has to be considered in the background
of the other facts and circumstances of the case.

G Learned counsel for the appellant has placed reliance on certain decisions
in support of1his request to grant the relief on the ground that the marriage
has irretrievably broken down. The decision ofthis Court reported in [1993]
4 SCC 232 [ Chanderkala Trivedi (Smt). v. Dr. S.P Trivedi] has been cited. The
facts .of this case are peculiar in nature. The husband filed a petition for
divor.ce on th'e ground of cruelty at the hands of the wife. The wife, in reply,
H made allegations of adultery against the husband whereas the husband had
CHETAN DASS v. KAMLA DEVI [BRIJESH KUMAR, J.] 29

made allegations against undesirable association of the petitioner-wife with A
young boys. The trial court though dismissed the petition but found that the
behaviour of the wife was not that of a Hindu married woman. This has been
the finding of all the courts below. There were thus counter i;tllegations of
adulterous life of the husband with another lady doctor whereas undesirable
association of the wife .with other young boys. As observed earlier, the B
findings were recorded by all the three courts and the High Court in appeal
granted the relief of divorce on the ground of cruelty. This Court, however,
ordered for deletion of the findings recorded in the judgments of all courts
against the wife but maintained the decree of divorce and dismissed the
appeal. Such facts and circumstances of the case relied upon by the appellant
are not applicable to the present case. The factual position is entirely different. C
Both the parties, according to their respective allegations, have been sailing
in the same boat. Looking to the facts and circumstances of the case, this
Court ordered for deletion of the findings against the wife while maintaining
the decree. This case, in our view, has no application to the present case.

The other case cited by the learned counsel for the appellant is reported D
in [1995] 2 SCC 7 [Romesh Chander v. Savitri (Smt.)]. In that case, at the very
outset, it may be observed that the Order was passed considering the facts
and circumstances of the case in exercise of power under Article 142 of the
Constitution. Allegations were made by the wife against the husband about
his mixing with undesirable girls but no evidence was given to support those E
allegations nor the same were found proved. The husband howevei:, had
expressed his remorse on his conduct and neglect of his wife. It was considered
that where the marriage had broken down emotionally and practically, looking
to such facts and circumstances, the marriage was dissolved exercising powers
under Article 142 of the Constitution.
F
Yet another case relied upon by the learned counsel for the appellant
is reported in (1984] 4 SCC 90 [Smt. Saro} Rani v. Sudarshan Kumar Chadha].
In our view this case is also not applicable to the present case. The husband
did not obey the decree of restitution of conjugal rights obtained by his wife
to which he had not objected but later on, he filed a petition for divorce under G
Section 13 (1-A)(ii) on the ground that one year had passed from the date of
decree of restitution of conjugal rights but no actual co-habitation had taken
place between the parties. A plea was raised that the husband was taking
advantage of his own wrong as he had not resumed his matrimonial relationship
even after the decree of re.;titution of conjugal rights instead filed a petition
for divorce, that the parties had not cohabited even after one year of passing H
30 SUPREME COURT REPORTS [2001] 3 S.C.R.

A of the decree. This Court observed that a decree of restitution of conjugal
rights· was executable and further observed that 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 t9 justify denial of the relief to which
the husband or the wife is otherwise ent\tled to." On facts also, it was found
B that such a plea was not entertainable s1rnceI
no new facts were brought on
record even by means of an amendment that the husband had, by way of a
scheme, agreed for passing of a decree of restitution of conjugal rights with
a view to ultimately claim divorce by not resuming the matrimonial relationship.
In the present case, the allegations of misconduct of adulterous behaviour
C have definitely been made by the wife which have been found to be correct.
Hence, this case would also be of no help to the appellant.

Learned counsel for the respondent submits that in -certain situations,
relief would be denied to tl1e petitioner where it is found tl1at he is taking
advantage of his own wrong for the purposes of making out a case to obtain
D the decree. He has drawn our attention to Section 23(1) Clauses (a), (b) and
(e) of the Hindu Marriage Act which are quoted below:-

"23. Decree in proceedings.-(1) In any proceeding under this Act,
whether. defended or not, if the Court is satisfied that -

E .(a) any of•the grounds for granting relief exists and the petitioner
except in cases where the relief is sought by ~im on the ground
specified in sub-clause (a), sub-clause (b) or sub-clause (c) of
clause (ii) of Section 5 any way taking advantage of his or her
own wrong or disability for purpose of such relief, and
F (b) where the ground of the petition is the ground specified in
clause (i) of sub-section (1) of 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 c.melty, the petitioner has not in any man'ner condoned the
G cruelty, and

(c)

(d) ............................•.................................................................................. .

(e) th'ere is no other legal ground why relief should not be granted,
H then, and in such a case, but not otherwise, the Court shall
CHETAN DASS v. KAMLA DEVI [BRIJESH KUMAR, J.] 31

- decree such relief accordingly."

In the present case, the allegations ofadulterotis conduct of the appellant
A

have been found to be correct and the courts below have recorded a finding
to the.same effect. In ~uch circumstances, in our view, the provisions contained ,
under Section 23 of the Hindu Marriage Act would be attracted and the
appellant would not be allowed to take advantage of his own wrong. Let the B
things be not misunderstood nor any permissiveness under the law be inferred,
allowing an erring party who has been found to be so by recording of a
finding of fact in judicial proceedings, that it would be quite easy to push and
drive the spouse to corner and then brazenly take a plea of desertion on the
part of the party suffering so long at the hands of the wrong-doer and walk C
away out of the matrimonial alliance on the ground that marriage has broken

- down. Lest the institution of marriage and the matrimonial bonds get fragile
easily to be broken which may serve the purpose most welcome to the wrong-
doer who, by heart, wished such an outcome by passing on the burden of
his wrong-doing to the other party alleging her to be the deserter leading to
the breaking point. D
In this case, we also find that the respondent is still prepared to live
even at this stage of her life with the appellant but rightly on the condition
that the appellant disassociates himself from Sosamma Thomas. There has
been no cause of grievance or any allegation of objectionable behaviour by E
any one except the meek plea put forward by the husband that she was
dissatisfied with the living conditions at Kirnwad and she wante<l him to live
in Vtjaynangar. Such allegations have been found to be incorrect. She also
lived in Ganganagar. Had only living in Kirawad been the problem, there was
no occasion for her to be dissatisfied in living in Sriganganagar, at least none
has been indicated by the appellant. F

In this case, the averments made in the petition for obtaining a decree
for divorce, namely, desertion on the part of the wife without any reasonable
cause have not been found to be correct. The petition was liable to be
dismissed on that ground alone. The defence of the respondent for having G
a justified reason to live away from the husband has been found to be correct.
Behaviour of the appellant certainly falls in the category of misconduct on
his part. In such circumstances, it is too much on his part to claim that he
be given the advantage of his own wrong and be granted a decree of divorce
on the ground of desertion on the part of his wife who is still prepared to
live with him provided he snaps his relationship with the other woman. Similar H
32 SUPREME COURT REPORTS (2001] 3 S.C.R.

A offer had also been made on behalf of the appellant, which, we have already
dealt in the earlier part of the Judgment. He perhaps prefers to snap relationship
with the respondent rather than with Sosamma Thomas. A decree of divorce
on the ground of marriage having been irretrievably broken cannot be granted ·
in the facts and circumstances of the case as indicated above.

B In the result, the appeal has no merit and it is dismissed with costs
which is assessed as Rs. 10,000.

VS.S. Appeal dismissed.