V.K. Bali, J.
1. The hapless parties to this matrimonial dispute, it appears, are in litigation for about fifteen years. They were married on December 10, 1972 and sometimes thereafter they were blessed with two daughters. There came to be filed first in-point of time a petition by respondent-wife seeking decree for restitution of conjugal rights with the plea that the husband had deserted her, which culminated into a decree dated March 12, 1980. For non-compliance of the decree for restitution of conjugal rights, husband, this time instituted a petition under Section 13(1A) of the Hindu Marriage Act, 1955 claiming a decree for divorce on the solitary ground that after passing of the decree for restitution of conjugal rights, there had been no cohabitation between the parties for more than a year. The above said petition was filed on June 15, 1981.
2. The cause of the husband was contested, inter alia, on the grounds that after passing of the decree for restitution of conjugal rights, the parties to the marriage, had lived together, even though the husband had turned out his wife after sometime as also that the family members of the husband were annoyed with the wife for giving birth to female children and, therefore, they mal-treated her, gave her beatings due to in-sufficient dowry and turned her out earlier. This, constrained her to file a petition for restitution of conjugal rights and inasmuch as the said decree had not been complied with due to all kind of hurdles created by the husband, he was not entitled to take advantage of his own wrongs.
3. Learned Additional District Judge, Ambala, before whom the matter came up for hearing, on the pleadings of the parties framed the following issues :--
(i) Whether there has been a resumption of cohabitation between the parties as alleged after the passing of the decree for restitution of conjugal rights, for a period of one year OPP
(ii) Whether the respondent is entitled to the return of dowry, if so, to what articles or its amount OPP
4. On over-all appraisal of the evidence that was adduced by the parties, learned Additional District Judge recorded a firm finding of fact that there had been no compliance of the decree for restitution of conjugal rights between the litigating spouses. It was further held that even if the plea of the wife that she had lived with her husband for twenty days or so and thereafter was turned out, was believed to be true, the short durated cohabitation between the parties was not on account of volition of both the parties. A further finding was also recorded that the husband for non-complying with the decree, had done nothing which should come in his way so as not to get a decree for divorce on the basis of Section 23(1)(a) of the Hindu Marriage Act.
5. Aggrieved, the wife carried an appeal against the judgment and decree passed by the Additional District Judge, Ambala and the same was allowed by the Court reversing the judgment passed by Trial Court on January 19, 1984. The husband has filed the present appeal under Clause X of the Letters Patent seeking reversal of the judgment passed by the learned Single Judge with an obvious further prayer to restore the judgment and decree passed by the Trial Court.
6. After hearing Mr. Vinay Mittal, learned Counsel for the appellant, we are of the confirmed view that the present appeal deserves to succeed. It is an admitted position that the decree for restitution of conjugal rights on the petition filed by the respondent-wife, was passed on March 12, 1980. In the evidence that the parties led before Trial Court, whereas the appellant husband categorically stated that there had been no reunion between him and his wife even for a single day after the wife had initially left him in September, 1979, the wife came up with conflicting pleas and a bare reading of her own evidence and the other witnesses, who were examined to substantiate her plea of living together for twenty days, leaves no manner of doubt that the said plea is totally false. The respondent-wife stated in her examination-in-Chief that she had gone to Delhi to live with the appellant in December, 1980 with her father and one Narender Singh and she lived there for twenty days, in the cross-examination, however, she gave the date of going to Delhi as December 10, 1980. Under stress of cross-examination, she had to admit that she had filed a petition under Section 125 of the Code of Criminal Procedure after she had come back from Delhi. A copy of the petition under Section 125 of the Code of Criminal Procedure which is available on record as Annexure R-1, would however, show that the same was filed on June 1, 1980. Her version that she had gone to Delhi in December, 1980 to live with her husband and the reafter she had filed the petition under Section 125 of the Code of Criminal Procedure, is thus proved to be false. In so far as the statement of Narender Singh, examined by respondent-wife, is concerned, it would be noticed that he stated in his deposition that he had collected brotherhood on December 10, 1980 and had taken the respondent to the parental house of the petitioner at Ambala but he was not there. He further stated that appellant flatly refused to keep the wife with him and, therefore, she had to come back with them only on that day. In the cross-examination he stated that they had gone to Delhi along-with the respondent in second week of December, 1980 and just went to the house of appellant and had come back. He further stated that the respondent-wife came back from Delhi just within 2 or 3 days when she was left there. Not only this version of Narender Singh is contrary to what has been stated by the wife but the same is also not worthy of credence. It is against normal human conduct that those who want to reconcile the dispute between husband and wife, would just leave the wife at the door step of the house of husband and without seeing as to whether she has been accepted at the matrimonial home or not, would come back.
7. In so far as the father of wife, Pritam Singh, is concerned, he stated that they had left the respondent with the father of husband and lince he was not present at Ambala on that day, they brought her back on the very next day and then took her to Delhi and left her on the ground floor of the house of husband further directing her to go to her house. He further stated that his daughter was left at the place known as 'Bhogal' whereas Narender Singh, the other witness, stated that she was left at 5, Masjid Road.
8. The evidence discussed above would leave no manner of doubt that it is not only a case of mere discrepancies in the statements of witnesses as has been observed by learned Single Judge, but the entire evidence of the respondent living with her husband for twenty days was cooked up simply with a view to defeat the right of husband to seek divorce.
9. Be that as it may, even if it is assumed that the respondent-wife had lived with her husband for a brief stint of twenty days and in the manner as has been narrated by the witnesses examined by her i.e. leaving her at the door step of the house of husband, it will not be a case of resumption of cohabitation after passing of the decree for restitution of conjugal rights. We are, therefore, clearly of the view that it is not a kind of resumption of cohabitation which is contemplated under the Hindu Marriage Act, 1955, Resumption of cohabitation is to be by volition of both the parties or by reconciliation and it cannot be a mere attempt by one of the spouses against the will of other. The resumption by force or deceit cannot be a substitute of resumption of cohabitation by volition. In N. Varalakshimi v. H.Y. Hanumantha Rao, AIR 1978 Andhra Pradesh 6, it was held that 'within Section 13(1A) resumption of cohabitation after the passing of the decree for judicial separation means resumption for cohabitation by volition of both the parties or by reconciliation and it is not a unilateral attempt by one of the spouses against the will of the other and therefore where there was no resumption of cohabitation by volition of both the parties within two years after the passing of the decree for judicial separation in favour of the husband the grant of a decree for divorce to the husband would be justified and the fact that the wife's attempts at resumption' of cohabitation had been thwarted by the husband would be immaterial.' We are in complete agreement with the view expressed by Andhra Pradesh High Court.
10. In so far as the husband taking advantage of his own wrongs disentitling him for decree of divorce based upon Section 23(1)(a), is concerned, suffice it to say that in Dharmendra Kumar v. Usha Kumar, AIR 1977 Supreme Court, 2218, it was held that 'In order to be a 'wrong' within the meaning of Section 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 other-wise entitled.
11. Section 13(1A)(ii) entitles either party to a marriage to present a petition for dissolution of marriage by a decree of divorce on the ground that there had been no restitution of conjugal rights as between the parties to the marriage for a period of one year after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. The period of two years has been curtailed by an amendment brought out in Section 13 in the year 1976. It is, thus, made out from the aforesaid Section that either party to the marriage can present a petition for dissolution of marriage if there had been non-compliance of the decree for restitution of conjugal rights. Amendment aforesaid was introduced in Section 13 by Section 2 of the Hindu Marriage Amendment Act, 1964. Original Section 13 as it stood before the 1964 amendment permitted only the spouse who had obtained the decree for restitution of conjugal rights to apply for a decree of divorce. The party against whom the decree was passed, was obviously not given a right to obtain such decree of divorce. The husband, thus, is within his right to ask for a decree of divorce irrespective of the fact that the decree for restitution of conjugal rights was obtained by the wife. It is true that the grant of relief under Section 12 is subject to the provisions of Section 23 of the Act but the Supreme Court in the case of Dharmendra Kumar v. Usha Kumar (supra), has clearly held that in order to be a 'wrong' within the meaning of Section 23(1)(a), the conduct alleged has to be something more than a more disinclination to agree to an offer of reunion, which has to be misconduct serious enough to justify the denial of the relief.
12. The Full Bench of this Court in Bimla Devi v. Singh Raj. 1977 H.L.R. 272, held that 'The concept of wrong-disability which was hitherto the sole basis of relief under the Act has now, in part, given way to the concept of a broken-down marriage irrespective of wrong or disability. So, it is not permissible to apply the provisions of Section 23(1)(a) based as they are on the concept of wrong-disability to proceedings in which relief is claimed under Section 13(1A) based as they are on the concept of broken down marriage.'
13. Learned Single Judge relied upon judgment of this Court in Kirpal Singh v. Tej Kaur, 1981 R.L.R. 73, to hold that since the husband clearly stated that he is not prepared to keep his wife whereas the wife was still prepared to go to live with him, the refusal of the husband to keep the wife after the grant of decree for restitution of conjugal rights, would be enough to disentitle the husband to a decree of divorce. We, with respect, cannot concur with the view as has been taken by the learned Single Judge. The view expressed by the learned Single Judge, as referred to above, is entirely based upon the judgment of Division Bench in Kirpal Singh v. Tej Kaur (supra). When the above said case was decided by the Division Bench, the Supreme Court had already taken the view as has been indicated above in Dharmendra Kumar v. Usha Kumar (supra), but the same was not brought to the notice of the learned Judges deciding the case of Kirpal Singh v. Tej Kaur (supra).
14. For the reasons stated above, this appeal is allowed. The petition instituted by the appellant--husband for a decree for divorce by dissolution of the marriage between the parties, is allowed and, therefore, the judgment of the learned Single Judge is set-aside and one passed by the learned Trial Court is up-held. However, keeping in view the fluctuating fortunes of the parties in every Court, there shall be no order as to costs.