(1) This is an appeal by Ishwar Chandra Ahluwalia against the order of the lower Court dismissing his petition under S. 13 of the Hindu Marriage Act, 1955 for the dissolution of his marriage with the respondent Shrimati Pomilla, Ahluwalia.
(2) The relevant facts are as follows. The parties were married according to Hindu rites at Delhi on the 11th of July 1955. Some time in 1956 the appellant filed an application under Section 9 of the Hindu Marriage Act for the restitution of Conjugal rights, alleging that after a short period of married life his wife had left his house taking her jewellery and clothes and had not returned in spite of his repeated efforts to get her back. The judgment of Mr. Jawala Das, Additional District Judge, dated the 20th of March 1957 in that case shows that the wife filed a written statement in which apart from admitting the marriage and the fact that the parties and last resided together at Delhi she denied his other allegations. On this the petitioner withdrew the allegations and the wife said that she had no objection to the passing of a decree for restitution of conjugal rights and a decree was accordingly granted.
(3) The petition giving rise to the present appeal was filed on the 16th of April 1959 and a decree for divorce was claimed under Section 13(1)(ix) of the Act, which allows a husband or wife to claim a decree for divorce on the ground that the other party 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. The petitioner alleged that after the passing of the decree his wife never joined him of her own accord, and that she also refused to join him although he had taken a number of persons, who were produced as witnesses, in an effort to persuade her to return within the next few months after the passing of the decree.
(4) The position of the wife was that in fact the husband did not make any effort to take her back and that she had at all times been willing to return to him, but he made it impossible. She raised the objection that the present petition did not lie in law because in between the petition which was decreed for restitution of conjugal rights and the present petition for divorce the husband had filed a petition under Section 12 of the Act for the annulment of the marriage. It is in fact clear that in October 1957 the husband filed a petition for a decree of nullity on the ground contained in Section 12(1)(c) of the Act that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under S. 5, the consent of such guardian was obtained by force or fraud.
Although the appellant alleged that this petition was dismissed for non-prosecution, it is quite clear from the judgment of Mr. P. D. Sharma, Additional District Judge, Dated the 14th of May 1958, that the petition was dismissed on the merits because the evidence produced by the petitioner was not sufficient to establish his allegations. The judgment shows that although the petitioner did not appear as a witness himself he produced five witnesses. The allegations on which the petition was based were that fraud had been committed on him in that his consent to the marriage was obtained on the express understanding that the respondent was pardanashin and home-keeping girl and not a woman given to the mordern ways of society. It was also alleged, though obviously it was quite irrelevant, that she had gone to her parents' house in 1955 taking with her jewellery and her cloths.
(5) In the present petition, as I have mentioned, the appellant produced a few witnesses to state that in between the passing of the decree for restitution of conjugal rights and the filing of the nullity petition in October 1957 he had taken the witnesses with him to the house of the parents of the wife where she was residing, but he had failed to persuade her to return to him.
(6) On the other hand, the wife alone gave evidence and denied the allegations of any efforts to persuade her to return, though at the same time she admitted that she herself had not made any effort on her part to persuade he husband to take her back.
(7) But for the fact that the nullity petition was filed by the husband in October, 1957, and dismissed in May, 1958. I do not consider that any difficulty at all could arise in the present case, since all that the law demands for a decree for divorce on this ground is that a decree for restitution of conjugal rights has been in existence for two years without compliance. It is obvious that ordinarily, once such a decree has been passed, the person who fails to comply with it does so at his or her own risk, and it would not even be necessary for the aggrieved party to prove that he or she had made positive efforts to make the other party comply, and the mere admission of the opposite party that he or she had made no efforts to comply would be quite sufficient.
(8) It has, however, been argued on behalf of the wife that the case of the husband is hit by the provisions of section 23 of the Act, the relevant portion of which reads--
'In any proceeding under this Act, whether defendant or not, if the Court is satisfied that--
(a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief,.......... then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.' It is contended that by filing the nullity petition and pressing it to the extent of producing evidence in support of his allegations of fraud the petitioner has, at least for the period during which those proceedings remained pending, made it impossible for his wife to comply with the decree for restitution of conjugal rights and in this way the husband by filing the present divorce petition a little more than two years after the decree for restitution of conjugal rights, and ignoring his own conduct, which for a time at least made it impossible for the wife to comply with that decree, is taking advantage of is own wrong.
(9) This contention was accepted by the lower Court and it was on this account that the petition was dismissed.
(10) On the whole I am of the opinion that there is some force in the contention. It must be held as a fact that obviously it was quite impossible for the wife to make any effort to comply with the decree for restitution of conjugal rights as long as the husband was proceeding with a petition for nullity of the marriage on the ground of fraud against her, and the very fact that such a petition was filed in October 1957, makes it doubtful whether any sincere efforts were made on behalf of the husband to get his wife to comply with the decree. On the particular facts of this case I am of the opinion that the husband ought at least to have waited for a period of two years he could legitimately claim a divorce under the provisions of section 13(1)(ix) of the Act and therefore his petition was rightly dismissed. I accordingly dismiss the appeal with costs. Counsel's fee Rs. 50/-.
(11) Appeal dismissed.