period to file a Petition for divorce. Even that finding of fact deserves no interference. In cases of intentional non-payment of interim maintenance amount, the Apex Court has dealt with similar argument in Hirachand Managaonkar's case (supra). It may be useful to reproduce paragraph 12 of the said decision, which reads thus:-
"The next contention that arises for consideration is whether the appellant by refusing to pay maintenance to the wife has committed a "wrong" within the 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 Edn., at p.121) it is stated:
"Cohabitation means living together as husband and wife. It consists in the husband acting as a husband towards the wife and the wife acting as a wife towards the husband, the wife rendering house wifely 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 cohabiting, but it does not follow that because they do not have sexual intercourse they are not cohabiting. Cohabitation implies something different 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."
After having extracted the quotations from Mulla's, the Court held that even after decree for judicial separation is passed, both the spouses were obliged to make sincere contribution for the purpose of successful cohabitation. And if the husband refuses to pay maintenance to the wife, he fails to act as a dutiful husband and thus, commits a "wrong" within the meaning of Section 23 of HMA. Later, in Paragraph 15 of the
reported decision, the Court specifically dealt with the question as to what is a "wrong" withing the meaning of Section 23(1) of the HMA. While considering the facts of that case, wherein the husband failed and neglected to pay the meagre amount of Rs.100/- as maintenance to the wife and he was found to be only marking time for expiry of the statutory period of one year after the decree so that he may easily get a decree of divorce. The Court held that such conduct of the husband results in committing matrimonial "wrong" in refusing to maintain his wife and also trying to take advantage of the said wrong. This decision applies on all fours to the case on hand.
Act of intentional nonpayment of arrears of maintenance is recurring one. Liablity to pay maintenance would continue until it was fully paid. Husband is not entitled to get divorce.
Bombay High Court
Sanjeev Vyankatesh Ranade vs Meghna Sanjeev Ranade on 21 July, 2011
Bench: A.M. Khanwilkar, R.Y. Ganoo
