GURMEET KAUR Vs. HARBANS SINGH

JUDGEMENT

(1.) This appeal at the instance of the wife is directed against the judgment dated February 12, 1980 of the Additional district Judge, Patiala, where by he granted, a decree of divorce to the husband against wife under Section 13(1A) of the Hindu Marriage Act (hereinafter called the act). The husband had secured a decree for restitution of conjugal rights of May 15, 1978, and after the passage on the requisite period envisaged for Section 13(1A) of the Act sued for divorce.

(2.) Evidence was led before the Matrimonial Court on behalf of the appellant- wife, showing that she had been keen to comply with the decree for the restitution of conjugal rights secured by her husband against her and had also been applying to the Matrimonial Court that she was prepared to comply with the decree, but the husband had frustrated her attempts to do so. It was on the basis of this material on the record that it was argued on behalf of the wife that in view of the provision of S. 23(1) of the Act, a decree of divorce could not be granted to him as it would tantamount on his part to be taking advantage of his own wrong. The trial Court relying o a Full Bench decision of this court in Smt. Bimla Devi v. Singh Raj, AIR 1977 Punj and Har 167, held that such an objection is no longer tenable. Before the Full Bench the facts were that the judgment debtor wife had frustrated the execution of the decree for restitution of the period envisaged under Section 13(1A) of the Act she herself sued for divorce on the ground that the decree of restitution of conjugal rights obtained against her had remained unsatisfied in that there had been no resumption of conjugal relationship between the parties after the passing of the decree till the filing of the divorce petition by her. An objection was raised from the side of the husband that she could not take advantage of her own wrong as she had frustrated the attempt of the decree holder, i. e., the husband to execute the decree and resume conjugal relationship with her. The Full bench held that the language of Section 23(1)(a) of the Act was clear that the advantage of his or her own wrong or disability should be in connection with the relief which was sought to be claimed in the proceedings.

(3.) Now the question that would arise for consideration is as to whether reluctance on the part of the husband -decree holder in this case, to resume cohabitation would amount to a wrong which would disentitle him by virtue of the provisions of Section 23(1)(a) of the Act to the relief sought by him. Dhillon, J., who delivered the majority opinion in the Full Bench case, took notice of such a circumstance where a spouse after obtaining the decree may change his or her mind and many not be willing to live with the other spouse. It was also noticed in the judgment that the Legislature though it fit not to provide the mode of execution of a decree for restitution of conjugal rights so as to unite the two spouse physically who could not live together for one reason or the other. The decision of the spouse whether the decree holder or the one who has suffered the decree not to resume cohabitation after the passing of the decree, would not fall in the category of acts which could be termed as 'wrongful acts' in terms of section 23(1)(a) of the Act. The position could not be otherwise in a mind to enforce the compliance of the decree or in the other words be not agreeable to resume cohabitation although the judgment-debtor is forthcoming to resume cohabitation in compliance with the decree. Otherwise, it would tantamount to this that the law gives a right by one hand and takes away with the other. Section 13(1a) of the Act gives a right to either party to a marriage whether solemnised before or after the commencement of this Act, to present a petition for the dissolution of the marriage by a decree for divorce on the ground that 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 proceedings to which they were parties. What is of relevance, is as to whether there has not been resumption of conjugal rights for a given period after the passing of the decree till the presentation of petition for divorce. A perusal of the provision of Section 13(1A) of the Act would show that both parties can present a petition. This would include the party whose conduct has resulted in the failure of the restitution of conjugal right after the passing of the decree. If the contention was that such party could not file a petition then there was no question of giving the rights to seek divorce on the said grounds to both the parties. There fore the wrong envisaged under S. 23(1)(a) of the Act has to be a wrong of a kind different from a mere conduct on either side of refusing to resume conjugal relationship after the passing of the decree in question.