S.B. Wad, J.
(1) This appeal is filed by the wife against the judgment of the Additional District and Sessions Judge, Delhi, dated 31/5/1984 whereby the learned Judge granted divorce to respondent husband under Section 13(1-A)(ii) of the Hindu Marriage Act. The marriage took place on 22/11/1973. There are two issues of the marriage, one son and one daughter. The children are with the wife. On 25/7/1976 it is alleged that she was turned out of the house by the husband. She filed the petition for restitution of conjugal rights under Section 9 of the Act on 22/12/1976. When this petition was pending she filed a criminal complaint under section 494, Ipc alleging that the husband had contracted a second marriage on 8/12/1976. In the said criminal case the evidence of the wife and one witness was recorded on 30/4/1977. The criminal case under section 494, Ipc is still pending. A decree for restitution was passed in favor of the wife on 24/12/1977. That decree was allowed to be passed ex parte by the husband. The learned Judge has recorded that after an order for pendente lite maintenance under Section 24 of the Act was passed the husband stopped attending the court. The husband did not make any effort to get back the wife to the matrimonial home. He did not show any interest in the children nor paid regular maintenance to the wife and children. But after completion of one year (21/3/1979) he filed a petition for divorce under Section 13 of the Act alleging that after the decree for restitution no cohabitation was resumed between the parties. As the husband was not paying any maintenance, the wife filed a petition for pendente lite maintenance in the proceedings for divorce on 23/4/1979. The Additional District Judge granted maintenance at the rate of Rs. 250.00 per month and also directed payment of Rs. 500.00 towards the litigation expenses. The husband is in arrears of payment of the maintenance of more than Rs. 3,000.00.
(2) In her written statement in the divorce petition the wife has alleged that she was harassed and repeatedly beaten by the husband and his father and was made to leave the house. Thereafter, the husband contracted a second marriage at Amritsar. A male child named Manav was born of the second marriage. She contended that the husband was taking the advantage of his own wrong and was, thereforee, not entitle to decree for divorce. Two issues were framed by the trial court :
(1)Has the petitioner entered into marriage with Mrs. Subash @ Kamini after the passing of the decree for restitution of conjugal rights (2) If issue No. I is proved, is the petitioner not talking advantage of his own wrong
Number of witnesses were examined on behalf of the wife including the witnesses who had attended the second marriage. The witnesses were also produced from the School where the son of the second marriage Manav was studying. The husband examined himself but did not produce any other evidence. The learned Additional District Judge disbelieved the witnesses of the wife and came to the conclusion that she had failed to establish that the husband had married second time. As more than one year had passed after the decree for restitution of the conjugal rights, the learned Judge passed a decree for divorce under Section 13(l-A)(ii) of the Act.
(3) SUB-SECTION I (A) was introduced by Hindu Marriage (Amend. ment) Act, 1964 (44 of 1964). Earlier the position was that only the party in whose favor the decree for restitution of conjugal rights was passed, could obtain a decree for divorce after the period of one year if cohabitation was not resumed during the said period. The effect of the amendment is that it is not only a party in whose favor a decree for restitution of conjugal rights was passed, who could move a petition for divorce but a party against whom such a decree had been passed could also move a petition for divorce. In Ram Kali v. Gopal Das, 2nd (1971) 1 Del 6 and Gajra Devi v. Purshotam Giri, : AIR1977Delhi178 the new amendment was considered in' the ' light of clause (a) of Section 23(1) of the Act. This court held that the party against whom a decree for restitution of conjugal rights is passed but fails to comply with the decree cannot be called a party taking advantage of his/ her own wrong. The remedy of divorce was provided by law. Availing of the legal remedy cannot be described as a wrong within the meaning of Section 23. This court held:
'IN order to be a 'wrong' within the meaning of Section 23, 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.'
The said two decisions of this court were approved by the Supreme Court in Dharmendra Kumar v. Usha Kumar, : 1SCR315 .
(4) In the light of the requirements of law it is to be examined whether the husband has done any matrimonial wrong or has done such overt acts prejudicial to the matrimonial well-being as to disentitle him- to a decree for divorce. In her evidence the wife had stated that the husband had contracted the second marriage with Mrs. Subhash @ Kamini and' one male child named Manav was born of the marriage. She further stated that during the course of the proceedings the husband himself told this fact to her. The father of the wife Shri Baldev Kohli, (RW-2) stated that his sister's husband Baldev Raj who stays at Batala was asked by him to go to Amritsar and to find out the truth. Baldev Raj contacted the mother of the second wife Phoola Rani and the father Panna Lal and confirmed that the second marriage had taken place. Kuljit Singh (RW-3) and lqbal Singh (RW-5) are two eye witnesses of the marriage. Both of them knew the husband and had attended the marriage at Amritsar. They further stated that a son was born of the second marriage and that the husband and his second wife were staying in Delhi. The learned Judge had disbelieved Kuljit Singh and Iqbal Singh because of certain vague statements and contradictions in their evidence. For example, they did not know the names of other persons who had gone with them to Amritsar for the marriage. They did not remember the name of the Sarai where they stayed and could not state where the Mohalla or temple (place of marriage) were located. I do not find that these contradictions are material. Persons going from Delhi to Amritsar may not know the exact area or the names of places. Usually, the marriage party consists of persons known to the family of the husband or the wife. They may not know each other. The marriage had taken place in the night and the witnesses left Amritsar after the marriage. They are, thereforee, not likely to know more details, lqbal Singh had claimed that she husband was his friend and that he also knew his second wife Smt. Subhash. No question was asked in the cross-examination on this aspect of the deposition. Kuljit Singh had stated that the marriage took place on 8/12/1976 while lqbal Singh had stated that it took place on 7/12/1976. It is agreed that the marriage took place after 12 '0 clock in the night. In a popular way it is described as the night of 7/12/1976 but after 12 P.M. the day is changed and, thereforee, it can also be said that marriage took place on 8/12/1976. RW-6 Kanwal Tiwari who was working as a Clerk in Dav Model School, Pritam Pura, Delhi, produced two admission forms for the admission of two children Manav Sobti and Gautam Sobti. He could not say as to whether the children were still studying in the school. Krishan Kumar, who is a Secretary of Mainder Shakti Vidhalaya, Tri Nagar, Delhi, was examined as RW-7. He stated that a child named Sangita was admitted in the school 12/4/1980. The date of birth of the child recorded was 27/9/1977 and the father's name was shown as Jagdish Raj Sobti. The learned Additional District Judge had not properly considered the evidence of these two witnesses in the light of the evidence of one Jasbir Sobti. Tiwari (RW-6) had stated that a child named Manav Sobti was-admitted in the school and he had also produced the admission form. He could not state whether the form was filled in his presence. Jasbir Sobti was examined as a Court Witness. While recording his evidence the Additional District Judge had made a note that the witness was evading the replies. This witness clearly appears to be a got up witness. He had stated that his father's name was Jagdish Rai. After seeing the application form for admission he had stated that it was signed by him. He then stated that child Manav was the daughter of my friend Jagdish Rai Sobti. He had studied up to 9th class. He also stated that the admission form was filled by clerk Tiwari which fact was denied by Tiwari in his evidence. The counsel for the wife was allowed to cross-examine this witness by the court. In his cross-examination he had stated that he did not remember the date of birth of the child. He bad signed the application form but be did not remember the date of birth of child Manav. He admitted that Manav, the child, met him for the first time when he got him admitted in the school. He further stated that he did not have any other child except Manav. This evidence was quite crucial but unfortunately the learned Judge has not analysed the same with sufficient care. This was necessary particularly in the context of the wife's allegation that son Manav was the child born of the second marriage. Witness Jasbir Sobti not only evaded the replies, as is observed by the Additional District Judge, but had cooked up the whole story. He had stated that Manav was a daughter. In examination-in-chief he said that Manav was the daughter of Jagdish Rai Sobti, while in the cross-examination he said that he did not have any other child, except Manav. He had signed the application form as the father of the child. He was not able to give the date of birth. Then he said that he met the child Manav for the first time when he got him admitted in the school. A bare reading of this evidence shows that the evidence was completely false. He was put up as a witness to show that be was the father of the child. He bad admitted that he had studied up to 9th class and be and Jagdish Rai Sobti were working in the same factory. Jagdish Rai Sobti is the name of the brother of the husband. The second witness Shri Krishan Kumar (RW-7) from Mainder Shakti Vidhalaya, Tri Nagar, Delhi, is talking about entirely a different child, namely, Sangita. After considering the evidence of Jasbir Sobti, the court witness and Tiwari the clerk from the Dav Model School, I have no hesitation in holding that a false evidence was created by the husband to show that the child was not his.
(5) The witnesses for the wife had correctly stated the name of the second wife Subhash @ Kamini. She had been appearing in the criminal case as an accused. Thus she was not a fictitious person. The husband ought to have examined said Subhash @ Kamini but he failed to do so. The second marriage is proved by the two eye witnesses. The wife has further proved that a son was born of the second marriage and his name was Manav. The husband has not only failed to rebut this allegation but had tried to create a false evidence through Jasbir Singh who appeared as a court witness. Jasbir Singh was required to be called as a court witness because of the failure of the husband to produce him or his brother Jagdish Rai Sobti. I have no hesitation in holding that the husband had contracted a second marriage. He had falsely stated before the court that he had not married for the second time. The criminal case under section 494, Ipc is still pending for the last eight years, although the evidence of the complainant wife was recorded in 1977 itself. The husband had not cared for the two children. He had not made any effort to take their custody, nor had he paid the maintenance regularly. He allowed the decree for restitution of conjugal rights to be passed against him ex parte. Considering these facts, established on record, I hold that the respondent-husband is taking advantage of his own wrong within the meaning of Section 23(1)(A) of the Act. He is, thereforee, not entitle to divorce.
(6) For the reasons stated above, the appeal is allowed. The judgment and decree of the trial court is set aside. The appeal is allowed with costs.