RAJASTHAN HIGH COURT

                Bal Kishan

                Vs.

                Urmila

                D.B. Civil Misc. Appeal No. 620 of 1994
                    (V.S. Kokje and K.S. Rathore, JJ.)

                30.08.2001

                JUDGMENT

V.S. Kokje, J.

1. The appellant Bal Kishan was married to respondent Urmila Sharma on 23.2.85.
They lived together as husband and wife for about four months and after 19.6.85, they
have not lived together. The appellant had filed a petition under Section 12 of the
Hindu Marriage Act, 1955 (in short 'the Act') for declaration of the marriage to be a
nullity which was decided against him on 12.12.1986. The appellant filed an appeal
against this decision in the High Court and the appeal was also rejected on 13.12.88.
In the meanwhile, the respondent wife had filed an application under Section 9 of the
Act for restitution of conjugal rights and a decree for restitution of conjugal rights was
passed in her favour on 12.12.1986. The appellant, thereafter, filed a petition under
Section 13 of the Act for a decree of divorce on 22.3.90 on the ground of cruelty,
desertion and non-resumption of co-habitation for a period of more than one year after
the passing of the decree for restitution of conjugal rights on 12.12.86.

2. Respondent denied the allegations made relating to the grounds of cruelty, desertion
and in answer to the ground relating to non-resumption of cohabitation after the
passing of the decree of restitution of conjugal rights, contended that the appellant was
taking advantage of his own wrong as he did not comply with the decree for restitution
of conjugal rights and has filed a petition taking advantage of the same decree.

3. The Family Court framed issues on the grounds of cruelty, desertion and non-
restitution of conjugal rights between the parties for the period of one year or upward
after the passing of decree for restitution of conjugal rights. Upon taking evidence and
hearing parties, the Family Court held that the grounds of cruelty and desperation
(desertion) were not proved and on the ground of non-restitution of conjugal rights for
more than one year after the passing of the decree of restitution of conjugal rights, the
Family Court held that the appellant was not entitled to the relief as he was taking
advantage of his own Wrong. The petition was, therefore, rejected. This is an appeal
against that judgment and decree.

4. Learned counsel for the appellant submitted that the judgment and decree passed by
the Family Court were against law and facts on record. The main ground, on which the
arguments were advanced, was decision on issue No. 3 relating to non-restitution of
conjugal rights for a period of more than one year after passing of the decree of
restitution of conjugal rights. Learned counsel for the appellant submitted that mere
non-compliance with the decree for restitution of conjugal rights would not amount to
taking advantage of one's own wrong because according to the learned counsel, in the
first place, non-compliance with the decree for restitution of conjugal rights cannot be
said to be a wrong at all.

5. Learned counsel for the respondent supported the impugned judgment and decree
and submitted that firstly, a party against whom decree for restitution of conjugal
rights was passed cannot file a petition for divorce on the ground that the decree has
not been complied with by him. According to the learned counsel, a person against
whom the decree for restitution of conjugal rights is passed, would be clearly taking
advantage of his own wrong if he bases his objection on the non-compliance by him of
decree of restitution of conjugal rights passed against himself. Secondly, learned
counsel submitted that even if such a petition was maintainable and the ground was
available to such a petitioner, in this case, even on the facts and circumstances
available, it could be said that the petitioner-appellant was taking undue advantage of
a situation created by himself. If he had complied with the decree of restitution of
conjugal rights, there would have been no occasion for filing a petition for divorce on
the ground that decree had not been complied with.

6. Let me first deal with the grounds of cruelty and desertion which also have been
negatived by the Family Court. On the ground of cruelty, the only pleading is that the
respondent had willingly taken a job in government school in a village near Rewari in
order to torture the appellant husband in different ways. It has also been alleged that
the respondent had never discharged the duties of a wife and had never talked
normally with the appellant. She used to threaten the petitioner-appellant and used to
ask him to come to Rewari if he wanted to live with her. It was pointed out in the
petition that because of such a behaviour the petitioner suffered mental and physical
tension and fortune. In reply, the respondent wife denied all such allegations. The
evidence on the point is also slip-shod and perfunctory. The appellant Bal Kishan in
his statement has given only vague description of the facts on which his case of
practicing cruelty by his wife was based. He has vaguely stated that she had tortured
him in different ways. She was not paying heed to his instructions and was not
preparing food and used to go away to her aunt's place, time and again. The
respondent had denied in her statement truth of such allegations. On such evidence, it
cannot be said that the ground of practicing cruelty by the wife against her husband is
proved. The Family Court has correctly decided the issue.

7. On the ground of desertion also, there is hardly any pleading or evidence. In this
state of evidence, the decision of the Family Court on the ground that desertion was
not proved is also found to be correct.

8. So far as issue No. 3 relating to non-compliance with the decree for restitution of
conjugal rights for a period of more than one year is concerned, the pleadings are
specific. It has been pleaded by the petitioner that after the passing of the decree on
12.12.86, it has not been complied with by the parties and there has been no restitution
of conjugal rights pursuant to that decree for a period of more than three years and on
that ground, divorce deserves to be granted. In reply, the respondent has submitted that
the petitioner deliberately did not comply with the decree for restitution of conjugal
rights and is taking advantage of his own wrong by fling this petition.

9. It was contended that the petitioner wanted to divorce the respondent in order to
marry again taking advantage of his own wrong in flouting the decree for restitution of
conjugal rights. In the evidence, petitioner stated that after the passing of the decree
for restitution of conjugal rights, the respondent did not come to him and did not
enforce the decree. The respondent in her statement had admitted that after obtaining
the decree for restitution of conjugal rights, she did not try to get it enforced through
court and did not file any application for execution of the same. The Family Court
held that the petitioner did not make any attempt to comply with the decree of
restitution of conjugal rights and the restitution of conjugal rights could not take place
because of the petitioner's fault. Ultimately, the Family Court held that since the
petitioner had thwarted the efforts of the respondent to live with him, passing a decree
in his favour on the ground of non-restitution of conjugal rights, despite a decree of
restitution of conjugal rights, would amount to permitting him to take advantage of his
own wrong.

10. To appreciate the controversy on the question as to whether the petitioner, against
whom a decree for restitution of conjugal rights has been passed, could file a petition
for divorce on the ground of non-compliance with the decree for restitution of conjugal
rights for a period of one year or more, it would be necessary to reproduce the relevant
provisions of the Act.

11. Section 13(1A)(ii) of the Act, which provides the ground for divorce to either party
to a marriage on the basis of non-restitution of conjugal rights for a period of one year
even after passing of the decree for restitution of conjugal rights, reads as under :

       "Section 13(1A)(ii) - That there has been no restitution of conjugal rights as
       between the parties to the marriage for a period of one year or upwards after the
       passing of a decree for restitution of conjugal rights in a proceeding to which
       they were parties."

12. It is very clear that the ground is available to both the parties and there is no
distinction made between the party in whose favour the decree of restitution of
conjugal rights was passed or the party against whom such a decree was passed. It is
clear that the ground is available to both the parties irrespective of as to whom has
obtained decree for restitution of conjugal rights.

13. Difficulty is created by the provisions of Section 23(l)(a) which reads as under:
       "Section 23. Decree in proceedings. - (1) In any proceedings 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), 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 ........"
14. A reading of this provision would show that even if it is proved that the decree for
restitution of conjugal rights was passed between the parties and conjugal rights have
not been restituted for more than one year, the Court can still refuse to grant the relief
if it finds that the petitioner was taking advantage of his or her own wrong. The
question is whether mere non-compliance with the decree for restitution of conjugal
rights passed against a person would disentitle him from getting relief of divorce on
the grounds mentioned in Section 13(1).

15. A Full Bench of the Punjab and Haryana High Court in Vimla Devi v. Singh Raja, 1
took the view that the provisions of Section 23(1)(a) cannot be invoked to refuse the
relief under Section 13(1A)(ii) on the ground of non-compliance of decree for
restitution of conjugal rights where there has not been restitution of conjugal rights as
between the parties to the marriage for a period of one year or upwards after the
passing of the decree for restitution of conjugal rights in proceedings in which they
were parties. It was held that merely because the spouse who suffered the decree
refused to resume co-habitation that would not be a ground to invoke the provisions of
Section 23(1)(a) so as to plead that the said spouse was taking advantage of his or her
own wrong.

16. In Bai Mani v. Jayantilal Dahyabhai, 2 a Division Bench of Gujarat High Court
has observed that there must be some facts or circumstances occurring after the decree
for judicial separation or restitution of conjugal rights showing that the petitioner was
the defaulting party and a wrong-doer who was taking advantage of his own wrong. In
that case, the husband against whom a decree for judicial separation was passed on the
ground that he was leading an adulterous life, continued to live in adultery and after
expiry of the statutory period after the decree for judicial separation was passed, filed
a petition for divorce on the grounds available under Section 13(1A) of the Act. The
Court observed that the matrimonial offence of adultery has exhausted itself when the
decree for judicial separation was granted to the wife. It was no doubt true that the
husband was continuing to reside with his mistress. It was no doubt true that it was a
continuous wrong but, therefore, it cannot be said that it is a new fact or circumstance
amounting to a wrong which will stand as an obstacle in the way of the husband to
successfully obtain the relief which he claims in the divorce proceedings. It cannot be
said that he is taking advantage of his own wrong when he makes an application for
divorce though continuously residing with his mistress after the judicial separation has
been granted. As a matter of fact, he was trying to exercise his right granted under the
amending provision contained in Section 13(1A).

17. In Smt. Saroj Rani v. Sudarshan Kumar Chanda, 3 relying on the view taken in
Dharmendra Kumar v. Usha Kumar, 4 it was observed that it would not be reasonable
to hold that the relief which was available to the spouse against whom a decree for
restitution of conjugal rights has been passed, should be denied to the one who does
not comply with the decree passed against him. The expression, in order to be a
'wrong' within the meaning of Section 23(l)(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 to justify denial of the relief to which the husband or the wife is
otherwise entitled to. In Dharmendra Kumar v. Usha Kumar (supra), quoting with
approval, a Full Bench decision of Delhi High Court in Ramkali v. Gopal Das,5 it was
observed that mere non- compliance with the decree for restitution does not constitute
a wrong within the meaning of Section 23(l)(a) of the Act. The decision of the High
Court of Delhi in the case of Gajna Devi v. Purshottam Giri, 6 was quoted with
approval. The following excerpt from Gajna Devi's case (supra) was quoted :

       "Section 23 existed in the statute book prior to the insertion of Section 13(1A)
       ... Had Parliament intended that a party which is guilty of a matrimonial offence
       and against which a decree for judicial separation or restitution of conjugal
       rights had been passed, was in view of Section 23 of the Act, not entitled to
       obtain divorce then it would have inserted an exception to Section 13(1A) and
       with such exception, the provision of Section 13(1A) would practically become
       redundant as the guilty party could never reap benefit of obtaining divorce,
       while the innocent party was entitled to obtain it even under the statute as it was
       before the amendment. Section 23 of the Act, therefore cannot be construed so a
       to make the effect of amendment of the law by insertion of Section 13(1A)
       nugatory.
       .....the expression "petitioner is not in any way taking advantage of his or her
       own wrong" occurring in Clause (a) of Section 23(1) of the Act does not apply
       to taking advantage of the statutory right to obtain dissolution of marriage which
       has been conferred on him by Section 13(1A) .... In such a case, a party is not
       taking advantage of his own wrong, but of the legal right following upon of the
       passing of the decree and the failure of the parties to comply with the decree."

18. In Mrs. Meera Bai v. Rajinder Kumar Sobti, 7 a Single Bench of Delhi High Court
decided on facts of that case, that the petitioner against whom a decree for restitution
of conjugal rights was passed ex parte, was taking advantage of his own wrong by
filing a petition for divorce under Section 13(1A)(ii) while having contracted second
marriage.

19. In Smt. Santosh Kumari v. Kewal Krishna Sabharwal 8 another Single Bench of
Delhi High Court held, in the facts and circumstances of the case, that the husband
who had admittedly taken the wife back only to defeat the maintenance proceedings
pending against him and who subsequently filed a petition for divorce under Section
13(1A)(ii), was taking advantage of his own wrong.

20. The up-shot of the aforesaid case law is that merely because the petition is filed by
a person against whom decree for restitution of conjugal rights had been passed, which
he had not complied with, it cannot be said that he was taking advantage of his own
wrong. Something more is required to be proved. In the case before us, the learned
Judge of the Family Court did not approach the case from this angle and was swayed
away by the argument that the appellant did not try to get the decree for restitution of
conjugal rights complied with or was not agreed to comply with it. Learned Judge of
the Family Court has cursorily referred to the allegation that the appellant wanted to
marry a girl named Vimlesh. The respondent had deposed in her statement that the
appellant was keeping Vimlesh with him. Learned Judge has observed that the
allegation against the appellant relating to keeping Vimlesh with him did not appear to
be groundless. Actually, the learned Judge should have discussed evidence on the
point and then to have come to the conclusion as to whether in the facts and
circumstances of the case, the appellant was taking advantage of his own wrong. It
appears that the parties also were not able to fores on the real basis on which it could
be said that the appellant was taking advantage of his own wrong. In such state of
affairs, it would be just and proper to remit the case back to the Family Court for
addressing itself to the question as to whether in the facts and circumstances, the
appellant-petitioner was taking advantage of his own wrong in seeking divorce on the
ground under Section 13(1A)(ii) of the Act. Hearing before the Family Court will be
confined to this point alone and if the Family Court considers it necessary, it may give
fresh opportunity to the parties to lead evidence on this point alone.

21. In the aforesaid circumstances, this appeal is allowed and the matter is remitted
back to the Family Court for decision in accordance with law in the light of the
directions and observations made in this judgment.

Appeal allowed.

Cases Referred.

1. AIR 1977 Pun and Har 167
2. AIR 1979 Guj 209
3. AIR 1984 SC 1562
4. AIR 1977 SC 2218
6. AIR 1977 Del 178
7. AIR 1986 Del 136
8. AIR 1985 Del 393