RAMESH CHANDER Vs. SAROJ KUMARI

JUDGEMENT

(1.) RESPONDENT wife obtained a decree for restitution ofconJugal rights on 5.6. 1973. The parties not having resumed cohabitation for a period of over two years after the passing of a decree of restitution ofconJugal rights the husband moved an application under Section 13 of the Hindu Marriage Act for dissolution of marriage by divorce. The trial court accepted the position that there has been no resumption of cohabitation during the said period. It however took the view that as the husband against whom a decree of conJugal rights has been passed took no steps to comply with the decree, he was disentitled to relief, and for this the court relied on Section 23 which provides that in any proceedings under the Act if the court is satisfied that any of the grounds for granting relief exists and that the petitioner is not taking advantage of his or her own wrong or disability it shall decree such relief. The trial court apparently proceeded as if the position in law was that if a party against whom a decree of conjugal rights has been passed does not comply with the same this amounts to taking advantage of his own wrong and thus divorce cannot be granted, at the asking of the husband. He, therefore dismissed the husband's application and the appellant feeling aggrieved against this order has come up to this court in appeal.

(2.) I am completely unable to appreciate the process by which the trial court has come to this conclusion. This is still more surprising that he should have come to this conclusion even when the full bench of this court was noticed by him in the Judgment. In Ram Kali v. Gopal Dass (ILR (1971) I Delhi 6) this very argument of Section 23 was urged to disentitle the petitioner who had not complied with the decree of restitution of conJugal rights from any relief but was negatived by the bench which held that non-resumption of cohabitation or absence of restitution of conJugal rights as between the parties to the marriage for a period of two years or upwards, after the passing of a decree for Judicial a separation or for restitution of conjugal rights would not constitute a wrong within the meaning of clause (a) of sub-section (1) of Section 23 of the Act, so as to disentitle the spouse, against whom the earlier decree for Judicial separation or for restitution of conJugal rights had been granted from obtaining the relief of dissolution of marriage by a decree of divorce. The trial court inexplicable chose to rely on a judgment of single Judge of Bombay High Court reported as Laxmibai Laxmichand Shah v. Laxmichand Ravaji Shah (A.I.R. 1968 Bombay 332) where it was held that the refusal to comply with the decree of conJugal rights disentitles the petitioner to obtain a decree of divorce under Section 23 of the Act. I am indeed amazed that a court in Delhi should choose to ignore the specific law laid down by full bench of this court and choose to prefer a decision of single Judge of Bombay High Court. Frankly I am unable to appreciate any conceiveable reason by which this result was arrived at by the trial court. I may in this connection mention that a full bench of PunJab and Haryana High court. Smt. Simla Devi v. Singh Rai (1977 H.L.R 272) (noticed by the trial court) has also taken the identical view and has held that the ground that the spouse against whom a decree for restitution of conjugal rights was obtained has failed to comply with the decree cannot be taken for refusing the relief of dissolution of marriage on the ground that the spouse is taking advantage of his or her own wrong. Laxmibai's case (Supra) on the basis of which the trial court has disallowed the relief was specifically disapproved by the bench. It is an accepted principle of Jurisprudence that not even co-ordinate Jurisdiction Judges of this court can take a view different from the view taken by another single judge and in case of any different view the only proper course is to refer the matter to the division bench. It is totally uncalled for and impermissible for a subordinate court of Delhi to ignore and not to follow the full bench of this court. The ratio laid down by the full bench of this court is absolutely clear and brooks of no distinguishing feature nor indeed was any effort made by the trial court to even suggest any such distinguishing feature. This practice must be deprecated. The appellant was entitled to obtain relief by dissolution of marriage. The judgment of the trial court is manifestly illegal and is set aside. I would, therefore, allow the appeal and grant the appellant a decree of divorce by dissolution of marriage. As there is no appearance on behalf of the respondent, there will be no order as to costs.