1. This appeal arises out of the order of the subordinate Judge, Rajahmmundry made on 8-2-1979 for divorce at the instance of the husband.
2. The wife is the appellant. The parties were married in 1960 and they lived happily for 6 years. Trouble began when the third child was born in the Mission Hospital at Rajahmundry. In view of the health of the wife, the Doctors advised that she should not have any more children and suggested in the circumstances that it is better for the husband to undergo vasectomy operation. The husband resented the idea and immediately left for his place Konthamuru leaving the wife and the new born in the Hospital. R.W. 2 the father of the wife took her and the child to his place vedisileru. Sometime thereafter the wife filed O.P. No. 159 of 1967 for restitution of conjugal rights. The petition was allowed on merits on 27-10-1971. The order of the O.P. is Ex. A-2. According to the wife there were some attempts of mediation even during the pendency of the petition for restitution of conjugal rights that she went to the husband's place konthamuru and lived for 15 days after the decree in O.P. No. 159 of 1967, that during that period she was ill-treated by the husband and her mother-in-law that she and her children were kept in a separate room and they were given some paddy for cooking their food separately and even that was discontinued after some time and she was finally driven out of the house and that she had no alternative but to go and live with her parents at -Vadisileru. She filed O.S. No. No. 44 of 1972 for maintenance under S. 18 of the Hindu Adoptions and Maintenance Act alleging cruelty and desertion.. the suit was decreed on 5-4-1974 under Ex. A-3 and a sum of Rs. 100 was awarded to wards maintenance for the wife and three children.
3. Thereafter the husband filed the present petition O.P. No. 16 of 1976 out of which this appeal arises for divorce under S. 13(1A) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) claiming that the parties had not lived together fotr 2 years the decree for restitution of conjugal rights, that there were no chances of reconciliation and that he was not guilty of any wrong acts disentitling him to the relief. He also alleged that the wife was guilty of desertion.
4. The wife filed a written statement denying both the allegations among other issues, the trial Court framed the following issues:-
(1) Whether the parties lived together after the decree for restitution of conjugal rights and:
(2) whether the husband was taking advantage of his own wrong and whether the wife was guilty of desertion.
On both the issues the trial Court held in favour of the husband. The Court found that the parties did not live together after the decree for restitution of conjugal rights, that the wife never joined the husband that her story that she was driven out by the husband is not true and that the husband has committed no wrong disentitling him to the relief under section 13(1A) of the Act. And that the wife was also guilty of desertion. On these findings the Court granted a decree for divorce.
5. On behalf of the appellant, it is mainly contended that the evidence on record clearly establishes that the husband made it impossible for the wife to live with him, that he and his mother were ill-treating her that she was actually driven from the house by the husband subsequent tot he decree for restitution of conjugal rights and that he cannot take advantage of his own wrong to claim dissolution of marriage. It is also urged that the decree in the maintenance suit which had become final is a complete answer tothe allegation of desertion by the husband.
6. We will take up the allegation as to desertion first. The decree for restitution of conjugal rights was passed on 27-10-1976 as evidence from Ex. A-2 Shortly thereafter the wife filed O.S.No. 44 of 1972 for maintenance on the ground that she is entitled to live separately on account of the cruelty meted out to her by the husband. Obviously the suit was filed in 1972, and the allegations were that she was driven out of the house and that she was ill-treated by the house and that she was ill-treated by the husband. The suit was decreed on 5-4-1974 finding the allegations to be true. In these circumstances, there can be no question of any desertion on the part of the wife. The decree for maintenance had become final as there was no appeal against the decree. From the facts it is clear that the wife was living away from the husband from 1972 due to the illtreatment of the husband and a competent Court had held that she was entitled to live separately. In these circumstances we fail to see how the wife was guilty of desertion. The present petition for divorce was filed in 1976. In view of the maintenance decree in O.S. No.44 of 1972 which had become final between the parties the ground of desertion on the part of the wife stands disproved.
7. The more important question is whether a decree can be granted under section 13(1A) of the Act in the circumstances of the case, Admittedly the parties have not lived together for two years after the decree for restitution of conjugal rights. Therefore the requirements of section 13(1A) are satisfied. But the question is whether he is entitled to the relief by virtue of this subsequent conduct in view of the provisions of section 23(1)(a) of the Hindu marriage Act. It is contended on behalf of the respondent-husband that section 23(1)(A) has no application to proceedings under section 13 of the Act subsequent to the amendment of section 13 by Act 44 of 1964 and Act 68 of 1976.
8. To appreciate this contention, it is necessary to refer to a few relevant sections of the Hindu marriage Act.
9. Section 9 which deals with the restitution of conjugal rights is as follows:-
'9 (1). When either the husband or the wife, has without reasonable excuse withdrawn from the society of the other the aggrieved party may apply by petition to the District Court, for restitution of conjugal rights and the Court, on being satisfied of the truth of the statements made in such petition and that there is not legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly'.'9 (2) xx xx xx xx'
Section 13 prior to its amendment reads:-
'13(1) Any marriage solemnized whether before or after the commencement of this Act. May on a petition presented by either the husband or the wife be dissolved by decree of divorce on the ground that other party:-
(i) to (vii) xx xx xx(viii). Has not resumed cohabitation for a space of two years or upwards after the passing of a decree for conjugal separation against that party:
(ix) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree'.
10. In 1964 S. 13 was amended by Act 44 of 1964 and Cls. (Viii) and (ix) of subsec. (1) of S. 13 were omitted and section 13(1A) was inserted:
'13 (1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground:-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of two years or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties: or
(ii) that there has been no 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 restitution of conjugal rights in a proceeding to which they were parties'.
11. This section was further amended by Act No. 68 of 1976 by which the period of two years was altered as one year.
12. The only other relevant section is S. 23 which is as follows:
'23. (1) In any proceeding under this Act, whether defended or not if the Court is satisfied that-
(a) any of the grounds for granting relief exists and the petitioner (except in cases where the relief is sought by him on the ground specified in sub-Cl. (Ii) of S. 5) is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief and
(b) to (d) xx xx (8) there is no other legal ground why relief should not be granted.
Then and in such a case, but not otherwise the Court shall decree such relief accordingly'.
13. It is clear from the various amendments made in the provisions of S. 13 that the parliament thought it fit to liberalise the grounds for divorce. Under the unamended S. 13 Cl. (Ix) enabled only the party who obtained a decree for restitution of conjugal rights to apply for divorce on the ground that the other party has failed to comply with the decree for the period mentioned therein. The defaulting party against whom the decree for restitution of conjugal rights was passed would not move the Court for decree of divorce. Sub-sec-tion (ix) of S. 13 was omitted by the 1964 amendment and S. 13(1A) was introduced under which either party to the marriage has been given a right to present a petition for dissolution of marriage by decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. By amending Act 68 of 1976 the period of 2 years was reduced to one year. A further S. 13(b) was also introduced providing for dissolution of marriage with the minimum of rancour and hostility and the maximum of humanity'.
14. But then the question is how far have the amendments gone? Has section 23(1)(a) to be treated non-existent for the purpose of S. 13? It is the accepted rule of interpretation that two provisions of an enactment should be harmoniously construed to give meaning to both the provisions S. 23(1)(a) says that even if any of the grounds for granting the relief exists the Court should grant relief only and not otherwise, when the petitioner is not taking advantage of his or her own wrong or disability for the purpose of such relief, the amendment to S. 13 must be limited to the extent to which the amendments have been made. They cannot be given an extended operation. S. 13 cannot be taken out of the limits of S. 23(1)(a). If it were otherwise the parliament would have added the words 'not withstanding anything to the contrary' in s. 2(1)(a), (23(1)(a) ?) or would have been suitably amended S. 23(1)(a) itself, as it was well aware of the provisions of S. 23(1)(a) when S. 13 was amended. If the interpretation put by the learned counsel for the appellant is accepted, S. 23(1)(a) would be rendered otiose and nugatory. We are of the view that before and after the amendment of the Hindu marriage Act, the provisions of S. 13 are subject to provisions of S. 23(1)(a) of the Act.
15. Presently we are concerned with a case where a decree for restitution of conjugal rights was obtained by the appellant-wife under S. 9 of the Act on the ground that the husband had without reasonable cause withdrawn from her society. A decree for restitution of conjugal rights was granted to the wife. After the decree, the husband not only, not complied with the decree, but did positive acts by ill-treating her and finally drove her away from the house. It is not a case of mere non-compliance of the decree, but fresh positive acts of wrong. We, therefore hold that the respondent is not entitled to the relief under S. 13(1A) of the Act.
16. In Dharmendra Kumar v. Usha Kumar, : 1SCR315 in considering the question whether the petitioner there was guilty of any wrong disentitling her to the relief under s. 13, the Supreme Court observed as follows (at P. 2219):-
'The grounds for granting relief under S. 13 including sub-sec. (1A) however continue to be subject tot he provisions of S. 23 of the Act'.
It was also held that in order to be a wrong within the meaning of s. 23(1)(a) the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled'.
17. In M. Someswara v. Leelavathi, AIR 1968 Mys 274 the Mysore High Court refused to grant the relief in view of the provisions of S. 23(1)(a) of the Act on the ground that apart from non-compliance of the decree, the petitioner therein was guilty of positive acts of illtreatment and that the party cannot take advantage of his or her own wrong.
18. The learned counsel for the petitioner relied upon a decision of hte punjab High Court in Bimla devi v. Singh Raj, . After an exhaustive discussion of all the provisions, the punjab High Court has held that a mere non-compliance of the decree for restitution of conjugal rights cannot be said to be a wrong as to disentitle the parties for seeking a divorce under S. 13(1A) because of the provisions of S. 23(1)(a) of the Act and that it must be proved that the advantage of the wrong mentioned in S. 23(1)(a) should be an advantage of their own wrong, foundation of which was laid after the decree for restitution of conjugal rights was passed. In effect what the punjab High Court said was that there must be fresh acts of wrong or disability subsequent to the passing of the decree. This decision is easily distinguishable from the facts of the present case. In this case, the respondent had illtreated the wife subsequent to the passing of the decree and drove her away from the house.
19. We are therefore of the view that the respondent is not entitled to the relief in view of his own conduct and accordingly we decline to grant the relief in view of the provisions of S. 23(1)(a) of the Act.
20. In the result we allow the appeal and dismiss the application o.p no 16 of 1976 seeking divorce. No. Costs.
21. Appeal allowed.