HARI DATTATRAYA SHITOLE Vs. MEENA HARI SHITOLE

JUDGEMENT

(1.) RIGHT from the beginning, it seems that it was a ill-fated marriage. It took place on 27th january, 1993 and after lapse of little more than one year, the husband filed a Petition under section 13 (1) (ia) of the hindu Marriage Act, 1955 (for short the Act ) seeking divorce. The wife in a counter claim sought restitution of conjugal rights. Her request came to be granted as per Order dated 21st March, 1995 passed by the Family Court No. 4, pune, in a Petition No. 353 of 1994 filed by the husband. As the restitution of conjugal rights was granted, obviously, the Petition of the husband, No. 353 of 1994 seeking divorce came to be rejected.

(2.) THE husband filed another Writ Petition No. 233 of 1996 under section 13 (1a) (ii) of the said Act because the decree of restitution of conjugal rights was not complied with.

(3.) AS expected, in the trial Court, the other side raised an objection that after the decree of restitution of conjugal rights was passed, it was the husband who had not responded to it. Several efforts were made by relatives of the wife, notices were served on her behalf to the husband and even execution application was filed by her but the husband did not comply with the mandate of the decree. Entertaining the Petition for divorce on the ground that no cohabitation is resumed after the decree for restitution of conjugal rights was passed within the time limit stated in the aforesaid section, divorce should not be granted because it would amount to that the husband is taking an advantage of his own wrong. For this purpose, section 23 of the Hindu marriage Act would be relevant. Referring to that very section, however, the Ld. Advocate for the Appellant/husband has urged that the trial Court was wrong in dismissing the petition because there are two Supreme Court judgments which clearly say that non obedience of a decree for restitution of conjugal rights will not amount to a wrong, as contemplated under section 23 of the said Act.