MEERA BAI Vs. RAJINDER KUMAR SOBTI

JUDGEMENT

(1.) This appeal is filed by the wife against the judgment of the Additional District and Sessions Judge, Delhi, dated 31/5/1984 whereby the learned Judge granted divorce to respondent husband under Section 13(1-A) (ii) of the Hindu Marriage Act. The marriage took place on 22/11/1973. There are two issues of the marriage, one son and one daughter. The children are with the wife. On 25/7/1976 it is alleged that she was turned out of the house by the husband. She filed the petition for restitution of conjugal rights under Section 9 of the Act on 22/12/1976. When this petition was pending she filed a criminal complaint under section 494, IPC alleging that the husband had contracted a second marriage on 8/12/1976. In the said criminal case the evidence of the wife and one witness was recorded on 30/4/1977. The criminal case under section 494, IPC is still pending. A decree for restitution was passed in favour of the wife on 24/12/1977. That decree was allowed to be passed ex parte by the husband. The learned Judge has recorded that after an order for pendente lite maintenance under Section 24 of the Act was passed the husband stopped attending the court. The husband did not make any effort to get back the wife to the matrimonial home. He did not show any interest in the children nor paid regular maintenance to the wife and children. But after completion of one year (21/3/1979) he filed a petition for divorce under Section 13 of the Act alleging that after the decree for restitution no cohabitation was resumed between the parties. As the husband was not paying any maintenance, the wife filed a petition for pendente lite maintenance in the proceedings for divorce on 23/4/1979. The Additional District Judge granted maintenance at the rate of Rs. 250.00 per month and also directed payment of Rs. 500.00 towards the litigation expenses. The husband is in arrears of payment of the maintenance of more than Rs. 3,000.00.

(2.) In her written statement in the divorce petition the wife has alleged that she was harassed and repeatedly beaten by the husband and his father and was made to leave the house. Thereafter, the husband contracted a second marriage at Amritsar. A male child named Manav was born of the second marriage. She contended that the husband was taking the advantage of his own wrong and was, therefore, not entitle to decree for divorce. Two issues were framed by the trial court :

(3.) Sub-Section I (A) was introduced by Hindu Marriage (Amend. ment) Act, 1964 (44 of 1964). Earlier the position was that only the party in whose favour the decree for restitution of conjugal rights was passed, could obtain a decree for divorce after the period of one year if cohabitation was not resumed during the said period. The effect of the amendment is that it is not only a party in whose favour a decree for restitution of conjugal rights was passed, who could move a petition for divorce but a party against whom such a decree had been passed could also move a petition for divorce. In Ram Kali v. Gopal Das, ILR (1971) I Delhi 6 and Gajra Devi v. Purshatam Giri, AIR 1977 Delhi 178 the new amendment was considered in' the ' light of clause (a) of Section 23(1) of the Act. This court held that the party against whom a decree for restitution of conjugal rights is passed but fails to comply with the decree cannot be called a party taking advantage of his/ her own wrong. The remedy of divorce was provided by law. Availing of the legal remedy cannot be described as a wrong within the meaning of Section 23(1). This court held: