ORDER
C. S. Dharmadhikari, J.
1. TheRespondent-husband Dilip Rane filed a Petition against Appellant-wife under the Hindu Marriage Act for divorce on the ground of cruelty, Shri V.K. Kulkarni, Judge, Bombay City Civil Court at Bombay, allowed the said Petition and declared that the marriage solemnised between Dilip Rane and Smt. Smita Rane stands dissolved by a decree of divorce.
2. Being aggrieved by this judgment and decree, Smt. Smita Rane (wife) filed an Appeal before this Court. Sharad Manohar J., before whom the Appeal was placed for hearing, fully heard the Appeal. On going through the evidence on record, he came to the conclusion that there is hardly any acceptable evidence about the alleged acts of cruelty. He further found that assuming that there were any acts of cruelty, the said acts stand condoned, and therefore, the decree of divorce as passed by the City Civil Court cannot be sustained. However, in view of the subsequent complication, and relying upon the observations of the Supreme Court in Smt. Saroj Rani v. Sudarshan Kumar Chadha, : [1985]1SCR303 , he thought it fit to refer the matter to the Division Bench, and this is how this Appeal has been placed before us.
3. It appears that after the decree was passed by the trial court on 18-7-1985, the Appellant-wife filed an Appeal before the High Court on 19th August 1985. It is an admitted position that the Appeal was filed within limitation, since, the Appellant had applied for certified copy of the judgment and the same was not made available to her. TheRespondent-husband had also filed a Caveat through his trial Court Advocate in the High Court. In spite of this position, during the pendency of Appeal, he married a second wife on 21st of October 1985. Sharad Manohar, J. found that the said marriage cannot be saved from the prohibition contemplated by Section 15 of the Hindu Marriage Act. However, according to him, in view of this subsequent event, the marriage has broken irretrievably and has gone on the rocks. Because of this second marriage, there is no likelihood of building a bridge between the two spouses. The relations between the two spouses have also become bitter in view of criminal proceedings enusing on account of the second marriage, Sharad Manohar J., also noted that the statutory law does not appear to be giving sufficient elbow room to this Court to grant divorce to the spouses or to either of them on the ground that the marriage has irretrievably broken. However, relying upon the observations made by the Supreme Court in Smt. Saroj Rani's case, he thought, if the marriage had gone on rocks not on account of the fault of either of the spouses, then a divorce could be granted by this Court. According to the learned Judge, the question being of great public importance, he thought it fit to refer the matter to the Division Bench.
4. We have heard Mr. Rane, as well as Mr. Gursahani, learned Counsel appearing for the parties. We have also gone through the evidence and material placed on record. It is quite clear from the findings recorded by the single Judge Shri Sharad Manohar, J. that the husband has failed to prove the alleged acts of cruelty and even otherwise, the said acts of cruelty have been condoned by the husband, and therefore, on that ground a decree for divorce could not be granted. However, it is contended by Mr. Gursahani that the observations of the Supreme Court in Smt. Saroj Rani's case : [1985]1SCR303 arc the conclusions reached by the Supreme Court in that behalf and could be treated as a law declared by the Supreme Court under Art. 141 of the Constitution of India. After the decree for divorce was passed, an intimation was given to the husband by the Counsel for the wife on 12th of August, 1985that she intends to file an Appeal. Thereafter no intimation was received by him and therefore he re-married on 21st October, 1985. Thus, he was not at fault. The situation is materially different today since the marriage has gone on rocks and hence this is a fit case where a decree of divorce should be granted on the ground that the marriage has irretrievably broken. It is not possible for us to accept this contention. It is an admitted position that as the law stood, no decree of divorce could have been passed on the ground that the marriage has irretrievably broken. It is difficult to hold that the observations made by the Supreme Court in Smt. Saroj Rani's case afforded a new ground for divorce which was not specifically provided by statute. As observed by the Supreme Court in Reynold Rajamani v. Union of India, : [1983]1SCR32 , when the Act specifically sets forth the grounds on which a marriage may be dissolved additional grounds cannot be included by the judicial construction of some other section unless that section plainly intends so. To say the least, such a plea was not specifically raised by amending pleadings. However, reliance is placed by Mr. Gursahani upon the observations of the Supreme Court in Smt. Saroj Rani's case. To properly understand the observations of the Supreme Court in Smt. Saroj Rani's case, it will be worthwhile if paragraph 10 of the said judgment is verbatim quoted. The said paragraph reads as under :--
'10. In this appeal before this Court, counsel for the wife did not challenge the finding of the Division Bench that the consent decree as such was not bad or collusive. What he tried to urge before us was that in view of the expression 'wrong' in Section 23(1)(a) of the Act, the husband was disentitled in this case to get a decree for divorce. It was sought to be urged that from the very beginning the husband wanted that decree for divorce should be passed. He therefore did not deliberately oppose the decree for restitution of conjugal rights. It was submitted on the other hand that the respondent/husband had with the intention of ultimately having divorce allowed the wife a decree for the restitution of conjugal rights knowing fully well that thisdecree he would not honour and thereby he misled the wife and the Court and thereafter refused to cohabit with the wife and now, it was submitted, cannot be allowed to take advantage of his 'wrong'. There is, however, no whisper of these allegations in the pleadings. As usual, on this being pointed out, the counsel prayed that he should be given an opportunity of amending his pleadings and, the parties, with usual plea, should not suffer for the mistake of the lawyers. In this case, however, there are insurmountable difficulties. Firstly, there was no pleading, secondly this ground was not urged before any of the Courts below which is a question of fact, thirdly the facts pleaded and the allegations made by the wife in the trial court and before the Division Bench were contrary to the facts now sought to be urged in support of her appeal. The definite case of the wife was that after the decree for restitution of conjugal rights, the husband and wife cohabited for two days. The ground now sought to be urged is that the husband wanted the wife to have a decree for judicial separation by some kind of a trap and then not to cohabite with her and thereafter obtain this decree for divorce. This would be opposed to the facts alleged in the defence by the wife. Therefore quite apart from the fact that there was no pleading which is a serious and fatal mistake, there is no scope of giving any opportunity of amending the pleadings at this stage permitting the wife to make an inconsistent case. Counsel for the appellant sought to urge that the expression 'taking advantage of his or her own wrong' in clause (a) of sub-section (1) of Section 23 must be construed in such a manner as would not make the Indian wives suffer at the hands of cunning and dishonest husbands. Firstly, even if there is any scope for accepting this broad argument, it has no factual application to this case and secondly if that is so then it requires a legislation to that effect. We are therefore unable to accept the contention of counsel for the appellant that the conduct of the husband sought to be urged against him could possibly come within the expression 'his own wrong' in Section 23(1)(a) of the Act so as to disentitle him to a decree for divorce to which he is otherwise entitled as held by theCourts below. Furthermore we reach this conclusion without any mental compunction because it is evident that for whatever be the reasons this marriage has broken down and the parties can no longer live together as husband and wife and if such is the situation, it is better to close the chapter.'
The learned single Judge has only quoted a part of the said observations viz.
'It is evident that for whatever be the reason, this marriage has broken down and the parties can no longer live together as husband and wife and if such is the situation, it is better to close the chapter.'
However, in our view, the said observations canot be read torn from the context nor can be styled as conclusion drawn by the Supreme Court. It appears that the Supreme Court has made these observations to reinforce its conclusion for granting a decree for divorce on the ground specifically laid down by the statute. It was not made as an independent ground for granting the divorce as such. This is quite clear from the expression used by the Supreme Court, viz., :
'Furthermore, we reach this conclusion without any mental compunction x x x.'
Therefore, it cannot be said that the Supreme Court has held that if the marriage has broken down and the parties can no longer live together as husband and wife, then a decree for divorce should be granted even though the statute does not specifically provide for it.
5. In the instant case, the husband was definitely at fault. Admittedly an intimation was given to him about the intention of the wife to file the Appeal. In fact the Appeal was filed on 19th August, 1985. The husband had also filed a Caveat before this Court. In spite of this, without making any further enquiry, in the matter, he re-married on 21st October, 1985. Thus he has re-married with the full knowledge that the Appeal was pending. It is also clear from the record that the Appeal was filed within time. In this context, Mr. Rane has rightly placed reliance upon the decisions of the Supreme Court in Lata d/o Shri-krishna Kamat v. Vilas Bhalchandra Udhoji, : [1989]2ITR48(SC) , and Tejinder Kaur v. Gurmit Singh, : [1988]2SCR1098 . As held by the Supreme Court, only because second marriage has taken place, the Appeal does not become infrnctuous. Therefore, in our view, only because the second marriage had taken place, the husband is not entitled to a decree for divorce. He cannot be allowed to take advantage of his own wrong. It is well settled that what cannot be granted directly cannot be achieved indirectly. By distorting the passage and reading certain observations of the Supreme Court torn from context, a new ground cannot be made out for getting divorce, when law does not provide for it. Therefore, we do not find any substance in this contention. No other point was either raised or urged,
6. In the result, the Appeal is allowed in view of the finding recorded by the learned single Judge that the alleged acts of cruelty were either not proved or were condoned by the husband. The judgment and decree passed by the trial court is set aside. However, in the circumstances of the case, there will be no order as to costs.
7. In the view which we have taken, no orders are necessary on Civil Application No. 4526 of 1989. The Appellant-wife will be at liberty to institute proceedings for claiming maintenance or alimony etc. in accordance with law.
8. Order accordingly.