Nasib Kaur vs Jarnail Singh

V.K. Jhanji, J.—This appeal is by wife, Nasib Kaur directed against judgment dated 2.11.1987 of the Additional District Judge, Faridkot, whereby marriage has been ordered to be dissolved by a decree of divorce in accordance with the provisions of Section 13(1-A)(ii) of the Hindu Marriage Act, 1955.

In brief, the facts arc that marriage between the parties was solemnised about 33 years ago at the village Bagha Purana, Tehsil Moga, District Faridkot. Appellant filed Petition No. 18-3/84 on 12.1.1984 u/s 9 of the Hindu Marriage Act (in short the Act) against the respondent and a decree was passed by the Sub Judge 1st Class, Moga, on 8.1.1986 in her favour. On the expiry of one year of the passing of the decree, respondent filed a petition for dissolution of marriage by decree of divorce u/s 13(1-A)(ii) of the Act on the ground that there had been no resumption of cohabitation between the parties to the marriage for a period of one year after the passing of the decree for restitution of conjugal rights. On contest by the appellant, petition filed by the respondent has been allowed and in consequence thereof, the marriage between the parties has been ordered to be dissolved. Hence, the present appeal by the wife.

It has been contended by the counsel for the appellant that the respondent cannot take advantage of his own wrong inasmuch as he failed to comply with the decree of restitution of conjugal rights despite the appellant having filed an execution application for executing the decree. He contended that by leveling false allegation that the appellant is suffering from mental disorder, the respondent has become dis-enlitled to the decree of divorce. Lastly, he contended that the petition filed by the respondent u/s 13 of the Act was pre-mature inasmuch as decree u/s 9 was granted in favour of the appellant on 8.1.1986, whereas petition u/s 13 has been filed on 8.1.1987. According to the counsel, petition was filed before the expiry of period of one year. In answer to these submissions, counsel for the respondent has contended that the words "wrong" or "disability" referred to in Section 23(1)(a) when read with Section 13(1-A) mean a wrong or disability other than a mere disinclination to agree to an offer of reunion in pursuance of decree for restitution of conjugal rights. He also contended that allegations levelled against the appellant in regard to her suffering from mental disorder were withdrawn and therefore, that argument is not available to the counsel for the appellant. He contended that counsel for the appellant is not correct in saying that petition was filed before the expiry of one year from the date of passing of the decree.

After hearing the counsel for the parties and going through the record, I am of the view that there is no merit in the appeal. Section 13(1-A)(i) of the Act provides that either party to a marriage, whether solemnised before or after the commencement of the Act, may present a petition for dissolution of marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights between the parties to the marriage for a period of one year or upwards after the passing of the decree for restitution of conjugal rights in a proceedings to which they were parties. Section 23(1)(a) of the Act provides that in any proceeding under the Act, whether defended or not, if the Court is satisfied that any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his/her wrong or disability for the purpose of such relief. These two sections came up for consideration before a Full Bench of this Court in Smt. Bimla Devi Vs. Singh Raj, . The learned Judges of the Full Bench held :

" The ground that the spouse against whom the decree for restitution of conjugal rights was obtained 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. In spite of the finding that the spouse against whom decree for restitution of conjugal rights has been passed, left the company of the petitioner u/s 9 of the Act without reasonable cause for the specified period, the legislature thought fit to entitle the spouse against whom such a finding has been given to apply for divorce u/s 13(1A)(ii) of the Act; the said relief cannot be made non-existent by applying the provisions of Section 23(1)(a) of the Act on the ground of non-compliance of a decree of restitution of conjugal rights. Such an interpretation will frustrate the very purpose of the amending Act of 1964.

From what has been stated above, it appears that the provisions of Section 23(1)(a) of the Act cannot be invoked to refuse the relief u/s 13(1-A)(ii) of the Act on the ground of non-compliance of a decree of restitution of conjugal rights where there has not been restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of decree for restitution of conjugal rights in proceedings in which they were parties. The contention of the learned counsel for the respondent that if the provisions of Section 23(1)(a) are interpreted in the manner as suggested above, the provisions of Section 23(1)(a) will become null and void and will not be applicable to any proceedings, is without any merit. As would be seen, in proceedings u/s 9 for restitution of conjugal rights, u/s 10 for judicial separation, u/s 12 of the Act and so also u/s 13(1), the provisions of Section 23, wherever they are applicable on the facts proved on the record of the case, will be attracted. It is only to the limited extent in proceedings of divorce u/s 13(1-A), where the divorce is claimed by either of the parties on the ground that there has been no resumption of cohabitation after the passing of a decree for judicial separation or that there has been no restitution of conjugal rights after a period of one year or upwards after the passing of the decree of conjugal rights, that the said provisions cannot be invoked on the ground of non-compliance with the decree passed so as to hold that the said act of non-compliance is in any way taking advantage of his or her own wrong."

In view of the binding precedent, I am of the view that simply because respondent had failed to comply with the decree for restitution of conjugal rights by itself would not amount to respondent taking advantage of his own wrong as provided u/s 23(1)(a) of the Act.

It is true that respondent in his petition u/s 13 of the Act levelled an allegation that the appellant is suffering from mental disorder, but this allegation was not pressed and no finding was invited on this allegation. There is no evidence on record to show that by levelling this allegation, respondent made it impossible for the appellant to seek compliance of the decree. As regards the contention that petition u/s 13 deserved to be dismissed being pre-mature on the ground that decree was passed on 8.1.1986 whereas the petition had been filed on 8.1.1987, i.e. before the expiry of one year, suffice it to say, the period of one year or upwards as provided u/s 13(1-A)(i) has to be reckoned from the date of granting of the decree. In this case, decree was granted on 8.1.1986 and taking one year from this date, the period of one year would come to expire on 7.1.1987 and the petition having been filed on 8.1.1987 was maintainable, having been filed after one year or upwards after the final termination of the proceedings for restitution of conjugal rights.

Consequently this appeal being without any merit, is to be dismissed. It is so ordered.