23. DECREE IN PROCEEDINGS.—

1.  In any proceeding under this Act, whether defended or not, if the court is satisfied that—

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), subclause (b) or sub-clause (c) of clause (ii) of Section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief; and

b. where the ground of the petition is the ground specified in clause (i) of subsection (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 cruelty the petitioner has not in any manner condoned the cruelty, and

bb. when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence; and]

c. the petition (not being a petition presented under Section 11) is not presented or prosecuted in collusion with the respondent, and

d. there has not been any unnecessary or improper delay in instituting the proceeding, and

e. there is no other legal ground why relief should not be granted then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

2. Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case, where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties:

Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii). clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of Section 13;]

3.  For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court, as to whether reconciliation can be, and has been effected, and the court shall in disposing of the proceeding have due regard to the report.

4. In every case where a marriage is dissolved by a decree of divorce, the court-passing the decree shall give a copy thereof free of cost to each of the parties.

23-A. RELIEF FOR RESPONDENT IN DIVORCE AND OTHER PROCEEDINGS.—

(SEC. 23-A INS. BY THE MARRIAGE LAWS (AMENDMENT) ACT. 1976.)

In any proceedings for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.

Section 23 lays down certain principles for the guidance of the court and also the conditions on the satisfaction of which, the court may pass a decree in the proceedings under the Act "whether defended or not".

Sub-section (2) however enjoins upon the court a duty to make every endeavour in the first instance to bring about reconciliations between the parties in every case where it is possible to do so consistently with the nature and circumstances of the case.

Sub-section (1) lays down that only “after the court is satisfied with the existence of the conditions mentioned in sub-clauses (a) to (e), the court shall decree the relief prayed for, but not otherwise.

The petitioner is required to prove those grounds strictly upon which he relies and it makes no difference whether the proceedings is defended or not.

The section has been considerably amended by the Marriage Laws (Amendment) Act, 1976 and some new provisions have been added, e.g., clause (bb) in sub-section (1) and sub-sections (3) and (4) have been inserted.

Even where a divorce is sought on the ground of mutual consent of the parties, a duty has been cast on the courts to ensure that the consent of any party has not been obtained by force, fraud or undue influence.

The conditions which the court must take into consideration before passing decree in any proceedings under the Act can be examined under the following heads:

(1) SUB-SECTION (1)(A)—TAKING ADVANTAGE OF HIS OR LIFER OWN WRONG OR DISABILITY.—

The rule is based on the principle "one who comes to equity must come with clean hands". The Amendment Act of 1976 has effected a small change and provided that in a case where the petitioner is insane or suffering from mental disorder, the question of petitioner taking advantage of his or her own wrong or disability does not arise.

Sub-section (1)(a) provides that in case the court is satisfied that any of the grounds for granting relief exists and the petitioner is not taking in any way advantage of his or her own wrongs or disability for the purpose of relief it shall decree such relief.

MOHAN LAI V. MOOL CHAND,

In the wife filed a suit for dissolution of marriage on the ground that her husband married a second wife. The husband contended that the second marriage was the outcome of the first wife's refusal to live with him and, therefore, she cannot take advantage of her own wrong.

It was held that even supposing that first wife refused to live with her husband it could not be conceived that the second marriage was necessarily the result of her living separately from her husband.

Further a wife living separately from her husband cannot be considered to have committed wrong and thereby, caused any injury.

SUMAN V. ANAND RAO (AIR 1958 Raj 71.)

In above case the petitioner for his ulterior motive preferred a petition under Section 9 taking benefit of his own wrongs. The court rejected the petition and held the petitioner not entitled to any relief.

But in a case (AIR 1976 Bombay 212.) where a decree for restitution of conjugal rights had been passed against the wife and for two years thereafter there is no compliance of the decree, it was held that the wife could move a petition for divorce and in such a situation it is not open to contend that she had herself been guilty of non-compliance with the decree against her, so as to disentitle her to decree for divorce.

MEERA BAI V. RAJINDER KUMAR SABTI (AIR 1986 Del 136.)

In above case the husband contracted a second marriage, and he allowed an ex parte decree for restitution of conjugal rights to be passed against him at the instance of his wife. He neither cared for his first wife nor for his children from her. Neither did he pay any maintenance to them.

The husband subsequently filed a petition for dissolution of marriage against his first wife under Section 13 (1-A) (ii) on the ground that restitution decree had remained uncomplied with for a period of one year.

Rejecting the petition, the court held that it would amount to taking advantage of his own wrong.

Where the wife has secured a decree of judicial separation against her husband and he did not resume cohabitation as he was under no obligations to do so, a petition later by him under Section 13 (1-A) would not fasten any guilt upon him so as to disentitle him under Section 23(1) (a).

In order to be a 'wrong' within the meaning of Section 23(1) (a) the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be a misconduct serious enough to justify denial of the relief, to which the husband or wife is otherwise entitled.

Where after a little over two years of passing of decree of restitution of conjugal rights in her favour, the wife applied for dissolution of marriage under Section 13 (1-A) (ii) and the husband in his written statements alleged that the wife refused to receive or reply to the letters written by the husband and did not respond to his other attempts to make her agree to live with him, this allegation, even if true did not amount to misconduct grave enough to disentitle the wife to the relief under Section 23 (1) (a).

According to Madras High Court, the wrong referred to under Section 23 (1) (a) was of more serious nature and had to be comprehended from the circumstances of each case.

The law could also not be construed to help a wrongdoer merely as the plea that subsequent amendments were intended to usher in liberalisation in the matter of divorce.

In this case the husband who continued to live in adultery even subsequent to the decree for judicial separation at the instance of wife, could not succeed in his petition seeking a decree for divorce.

Where it is found that it was the husband and his parents who harrassed the wife with dowry demands and abandoned her, he cannot be allowed to take advantage of his own wrong and seek a decree of divorce without establishing the legal ground of desertion and cruelty on which he founded his petition and on ground that marriage has irrevocably broken down.

In the case of M. Ajith Kumar v. K. Jeeja,⁵ the court observed that, the ground for relief of divorce can be denied by the court if it is satisfied that the person is taking advantage of his or her own wrong by virtue of Section 23(l)(a) of the Act. Because the word satisfied used in the section has to be construed as satisfied on the basis of the legal evidence adduced before the court and not merely on probabilities. It must be on the matter on record and based on evidence.