Leila Seth, J.
(1) This is a Letters Patent Appeal against the judgment of the learned Single Judge by which he has dismissed the appeal and confirmed the order of the District Judge dismissing the application for divorce brought by the appellant-husband.
(2) The marriage took place on 18th February, 1964 and it resulted in two children, one daughter born in May, 1966. The other is the son born in September 1967.
(3) The appellant-husband brought an application for restitution of conjugal rights. The application for restitution of conjugal rights was granted in favor of the appellant-husband ex-parte on 30th May 1975. Within a few months, to be precise on 30th October, 1975. the husband filed an application for divorce on the ground of adultery. His allegation being that the wife was leading an adulterous life. That petition has not proceeded further. The reason given by counsel for the respondent is that because the payments which had been directed to be made under Section 24 of the Hindu Marriage Act (hereinafter referred to as the Act) were not complied with. the case has been adjourned sine die. Though Mr. Adhlakha disputes that full payments were not made he did not dispute that such an application on ground of divorce was filed and has been adjourned sine die. We have been shown a certified copy of the order passed in the divorce notation (No. 331/1980) which was filed by the appellant-husband. It appears from that an order for maintenance has been passed against the husband which he did not comply. The result is that the Additional District Judge by his order of 18th December. 1982 instead of dismissing the petition, in the interest of justice has stayed it sine die with a direction that the husband can pet it revived after paying maintenance up to date and has consigned the file to record room.
(4) On 26th July, 1976, the appellant husband filed a petition (out of which the present appeal arises) for a decree on the ground of non-resumption of cohabitation between the parties despite the elapse of a period of one year from the decree of restitution of conjugal rights.
(5) The District Judge and the learned single Judge have rejected the petition on the ground that the husband by filing an earlier application for divorce on the ground of adultery, was now trying to take advantage of his own wrong and in terms of Section 23(1)(a) of the Act no such relief could be given to him.
(6) Mr. Adlakha refers us to a Full Bench of this Court in Ram Kali v. Gopal Doss, I.L.R. (1971) Del 6 That judgment is of no assistance to him. In that judgment all that was held was that after the Amendment Act 44 of 1964, non-resumption of cohabitation or absence of 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 judicial separation or for restitution of conjugal rights, would not constitute a wrong within the meaning of clause (a) of Sub-section (1) of Sec 23 of the Act, so as to disentitle the spouse, against whom the earlier decree for judicial separation or for restitution of conjugal rights had been granted, from obtaining the relief of dissolution of marriage by a decree of divorce. That authority would have applied, if the respondent wife, in the present case had sought for divorce alleging that there had been no resumption of cohabitation, since the passing of the decree for restitution and in that case it would have been no defense for the husband to say that she has not complied with the decree for restitution against her. But it is not the law, as Mr. Adhlakha would have us accept, that if a person who has obtained a 'decree for restitution, like the appellant in the present case, makes it impossible for the wife to comply with the decree by his conscious deliberate act, can nevertheless inspire of this misconduct and wrong of his own, seek to obtain divorce on the ground that the wife has not complied with the decree of restitution of conjugal rights. This would be making a mockery of the whole law and completely nullifying the provisions of Section 23(1)(a) which are as much applicable to a proceeding under Section 13(la)(ii) as to any other provision of the Act. No doubt, 1964 Amendment was in a way a progressive legislation; so as to entitle either of the parties to move the Court for divorce in case the decree for restitution of conjugal rights was not complied with, but it does not permit a husband like the appellant, to deliberately act in a cruel and vicious manner, by making allegations of adultery and by such allegations make it impossible for the wife to come back to the house and resume cohabitation, and thereafter to make a grievance and a ground for a divorce on the ground that the wife has not complied with the decree of restitution. As a matter of fact, Mr. Adhlakha was so bold and in a way, we must admit so fair as to assert the extreme proposition, that he was putting forth, that he fairly accepted, that according to his argument, even if the wife was to come back to the matrimonial home, so as to comply with the decree of restitution and the husband turned her out of the door step by threatening to shoot her down and then physically turned her out of the house, he would still be entitled to seek a divorce on the ground that the wife has not complied with the decree for restitution of conjugal rights. With respect, we find the argument totally untenable and unacceptable. We obviously cannot countenance such a device and deliberate flouting of the law, that even a criminal act and even after threatening to murder the wife by the husband, it would still enable the husband to ask for a divorce on the ground of the restitution decree having not been complied with.
(7) In our view, when section 13-(IA) permits either party to move a petition for dissolution of marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parlies, it obviously requires a normal situation, in which, without any threat at the hands of a party the other party .does not resume cohabitation. In that case of course, mere non-compliance, is not taken as a wrong so as to deny the right to seek a divorce under section 13(1-A) but where the party consciously by force prevents the decree of restitution being complied with, .the situation is different and he cannot be allowed to take advantage of his own criminal act. In the present case the wife has always maintained, and also maintained before us, through her counsel, that she was now even willing to go back to the matrimonial home. No doubt, Mr. Adhlakha suggests, that the marriage, after an irretrievable breakdown, dissolves, and refers us to the general observations in Saroj Rani v. Sudarshan Kumar, : 1SCR303 . The law of irretrievable breakdown has not yet been enacted. Here in the present case the respondent has not in any way shown herself disinclined to join the matrimonial home. The husband has by his own act within a couple of months of obtaining a decree for restitution, leveled such serious allegations against a wife, which must inevitably cause pain and suffering to her. In that case, the plea that the husband cannot be allowed to take advantage of his own wrong, was negatived, on the ground that no such plea was taken in the pleadings. The Court noted the contention of the wife, that she wanted to plead that the husband had laid some kind of a trap for her, to allow her to get a decree for restitution of conjugal rights and then not to cohabit with her and thereafter obtain a decree for divorce. The Court found, that this plea was opposed to the facts alleged in the defense by the wife and that there was no pleading on this point and the question of allowing any amendment in the pleadings did not arise. It was in these circumstances that the question of the husband taking advantage of his own wrong was not allowed to be argued. This case is no authority for the proposition that if the husband, as in the present case, deliberately and in a mala fide manner does an act of cruelty making it impossible for the wife to comply with the decree of restitution of conjugal rights, he can still take advantage of his own wrong.
(8) We have gone through the judgment of the learned single Judge who has given detailed reasons. We are in full agreement with the judgment of the learned Single Judge and for the reasons mentioned therein we find no merit in this appeal. The appeal is dismissed with costs. Counsel's fee Rs. 500.00 .