1. This is an appeal be one Jaswinder Kaur who stands divorced under the judgment and decree of the first matrimonial Court, whereby her marriage with Kulwant Singh was dissolved.
2. The marriage between the parties took place in December, 1971, They have a daughter who at present is living with the wife. The husband obtained a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act on September 17, 1977 from the first matrimonial Court, which was later an confirmed in appeal by the High Court on July 28, 1978. The decree having remained uncomplied with, gave a lever to the hu9band to move the first matrimonial Court in a petition under Section 13(1A) of the Hindu Marriage Act, seeking dissolution of the marriage as the said decree had remained uncomplied with for a period of more than one year. The petition was contested by the wife, According to her, she and her father and a few other persons approached the husband to settle her in his house but he declined her request. She repeated the attempt while the matter was pending in the High Court in appeal but the effort proved fruitless. In the presence of these two instances she drew the inference that the husband himself was at fault and thus was no entitled to a decree for divorce in the light of Section 23 of the Hindu Marriage Act. On the pleadings of the parties, the following issues were framed:--
1. Whether the respondent resumed cohabitation after the passing of the decree for restitution of conjugal rights.
3. The Court came to the conclusion that it was evident from the admitted facts that there was no resumption of cohabitation between the parties and at best the allegation of the wife only confined to her suggested efforts to resume cohabitation with the husband fruitlessly. Even the suggested efforts by the wife were not believed by the Court and it was held that the evidence put forward by her was not satisfactory. On either situation and from whatever angle the matter was looked into, it was felt that there was no resumption of cohabitation so as to whittle down the effect of the decree for restitution of conjugal rights, disentitling the husband, or for that matter either party, to obtain a decree for dissolution of marriage.
4. The learned counsel for the appellant raised two points--(1) that there was no effort made by the trial Court to effect a reconciliation between the parties incumbent on it under Section 23(2) of the Act, and (2) that the conduct of the husband in not permitting the rehabilitation of the wife in the matrimonial home would disentitle him to the relief claimed for under Section 23(1) of the Act,
5. On perusal of the file it appears that effort for reconciliation was made by the trial Court on l5th May, 1979 but the attempt proved abortive, Thereafter the issues were struck and the case proceeded towards finality, It is contended by the learned counsel for the appellant that this is not sufficient compliance of the mandatory provisions of Section 23(2) of the Act, inasmuch as before granting the relief under the Act it was the duty of the Court in the first instance, consistently with the nature and circumstances of the case, to bring about reconciliation between the parties. Sub-section (2) of Section 23 of the Hindu Marriage Act is being read in such manner by the learned counsel mean that reconciliation efforts have be timed immediately preceding the grant of a decree and not at any other stage of the proceeding. In other words, the trial of the case should normally proceed towards finality and short of the pronouncement of the judgment, efforts of reconciliation should then be made. This however does not appear to be the intention of the Legislature. Efforts towards reconciliation cannot time short of the judgment and decree. Such timing of the effort would have to vary from case to case. The Matrimonial Court, besides being a Court of law, has decide matters and grant relief them on in very sensitive fields. It alone can choose, with or without the suggestion of, the counsel or the parties, the time at which reconciliation, wherever possible, and whenever consistently with the nature and circumstances of the case, is practical to be attempted. In the instant case, as has appeared earlier, the decree for restitution of conjugal rights had been passed against the wife at the instance of the husband. The time clock had started and the warning had been sounded. It was left to the parties to settle out their matrimonal differences, with or without the aid of others. On the expiry of the time either party has been given the right to seek dissolution of the marriage. When the matter was brought to the Court, efforts for reconciliation had to be made at the time selected by the Court which was before the settlement of the issues. If at that time the parties had patched up then there was no need to proceed further. But if it was not so, then the logical conclusion was that the decree for restitution of conjugal rights had remained unfulfilled. The subsequent conduct of the parties can of course be taken into consideration while granting relief but the refusal to let compliance of the decree of restitution of conjugal rights is not a consideration which can weigh against a party claiming relief of dissolution of marriage under Section 13(1A) of the Act, This has been the view of a Full Bench of this Court reported in Smt Bimla Devi v. Singh Raj, 1977 Cur LJ (Civil) 154: AIR 1977 Punj & Har 167. The aforesaid discussion thus conjointly answers both the questions posed by the learned counsel for the appellant.
6. From what has been urged, reappraisal of the evidence in the case has become wholly unnecessary. Even if the averments of the wife, leaving apart that of the husband, are accepted as correct and taken as sacrosanct, the husband cannot be disentitled from the relief obtained by him from the first matrimonial Court and the same merits no interference in the present proceedings of appeal.
7. As a result, this appeal fails and is hereby dismissed with no order as to costs.
8. Appeal dismissed.