DHARMENDRA KUMAR Vs. USHA KUMAR

JUDGEMENT

(1.) On her application made under Section 9 of the Hindu Marriage Act, 1955, the respondent was granted a decree for restitution of conjugal rights by the Additional Senior Sub-Judge, Delhi, on August 27, 1973. A little over two years after that decree was passed, on October 28, 1975 she presented a petition under Sec. 13 (1A) (ii) of the Act in the Court of the Additional District Judge, Delhi, for the dissolution of the marriage by a decree of divorce. Section 13 (1A) (ii) as it stood at the material time reads:

(2.) On the pleadings the following issue was raised as issue No. 1 :

(3.) Sec. 13 (1A) (ii) of the Hindu Marriage Act, 1955 allows either party to a marriage to present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for the period specified in the provision after the passing of the decree for restitution of conjugal rights. Sub-section (1A) was introduced in Sec. 13 by Section 2 of the Hindu Marriage (Amendment) Act, 1964 (44 of 1964). Section 13 as it stood before the 1964 amendment permitted only the spouse who had obtained the decree for restitution of conjugal rights to apply for relief by way of divorce; the party against whom the decree was passed was not given that right. The grounds for granting relief under Section 13 including sub-section (1A) however continue to be subject to the provisions of Section 23 of the Act. We have quoted above the part of Sec. 23 relevant for the present purpose. It is contended by the appellant that the allegation made in his written statement that the conduct of the petitioner in not responding to his invitations to live with him meant that she was trying to take advantage of her own wrong for the purpose of relief under Section 13 (1A) (ii). On the admitted facts, the petitioner was undoubtedly entitled to ask for a decree of divorce. Would the allegation, if true, that she did not respond to her husband's invitation to come and live with him disentitle her to the relief We do not find it possible to hold that it would. In Ram Kali's case (ILR (1971) 1 Delhi 6) (supra) a Full Bench of the Delhi High Court held that mere non-compliance with the decree for restitution does not constitute a wrong within the meaning of Section 23 (1) (a). Relying on and explaining this decision in the later case of Gajna Devi v. Purshotam Giri (AIR 1977 Delhi 178) (supra) a learned Judge of the same High Court observed: (at p. 182 para 12)