C.M. Lodha, J.
1. This appeal is directed against the order of the District Judge, Ganganagar, dated March 7. 1973, whereby the learned Judge allowed the respondent's petition for divorce under Section 13 of the Hindu Marriage Act. 1955 (hereinafter referred to as 'the Act') and dissolved the marriage of the respondent with the appellant by a decree of divorce on the ground that there has been no restitution of conjugal rights between the parties for a period of more than two years after the passing of the decree for restitution of conjoigal rights.
2. The respondent was married to the appellant some time in the year 1964 A. D. according to the Hindu rites. The appellant lived with the respondent for about two years and duly discharged her marital obligations towards him. During this period she also gave birth to a son. However, subsequently, she withdrew from the society of the respondent, who filed an application for restitution of conjugal rights under Section 9 of the Act. The application was resisted by the appellant on the ground that the respondent had treated the appellant with such cruelty as to cause reasonable apprehension in her mind that it would be harmful for her to live with him It was pleaded that the respondent was given to heavy drinking and gambling and also used to beat her. The contention of the appellant was. however, overruled and the learned District Judge, Ganganagar by his judgment dated September 30. 1969, decreed restitution of conjugal rights against the appellant. On 18th August. 1972, the respondent filed the present petition under Section 13(1-A)(ii) of the Act for grant of a decree of divorce on the ground that the appellant failed to comply with the decree for restitution of conjugal rights for a period of more than two years. The petition was opposed by the appellant on the ground that she never refused to resume the marital relations and co-habit wtih the respondent but the respondent himself had treated her with cruelty and had turned her out of his house.
3. In support of his petition the respondent examined himself and produced a 'copy of the judgment granted in his favour in the matter of restitution of conjugal rights. The appellant examined herself in rebuttal and produced one more witness namely, her father Hiralal. The learned District Judge came to the conclusion that it was not obligatory on the respondent to go to the appellant's parent's house to bring her after the decree for restitution of conjugal rights had been passed in his favour, and that it was on the other hand, duty of the wife to go to the husband's house and thereby comply with the decree. He found that in the present case the wife did not go to the husband's house, as she should have, and the reason given by her that nobody stood guarantee for good behaviour on the part of the husband and, therefore, she did not go, is no good defence in the eye of law. In this view of the matter, he granted a decree of divorce.
4. Learned counsel for the appellant has urged that the burden of proof lay upon the husband to prove the fact that during the period of two years commencing from the date of the decree for restitution of conjugal rights, the wife had not cared to comply with it and that this burden had not been satisfactorily discharged by the respondent. He has argued that it was for the respondent to have proved that he made a sincere endeavour to arrange for the return of his wife to his place. It is contended that the respondent refused to take back his wife after the decree for restitution of conjugal rights had been passed and, therefore, he is not entitled to a decree of divorce. In support of his contention he has relied upon AIR 1970 Cal 328. MR 1968 Punj & Har 489. AIR 1968 Bom 332, and AIR 1968 Mys 274.
5. On the other hand, learned counsel for the respondent has urged that after the decree for restitution of conjugal rights had been passed, the wife should have taken initative to obey the decnce by going to the husband's house and resuming marital relations with him. In support of his contention he has relied upon AIR 1972 Puni 29, AIR 1973 Bom 55. and 1948 (2) All E. R. 858.
6. Before I discuss the authorities nelied upon by the learned counsel for the parties, I may refer to Section 13(1-A)(ii) and Section 23(1) of the Act.
'13(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a (petition for the dissolution of the marriage by a decree of divorce on the ground-
(ii) that there has been no 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 restitution of conjugal rights in a proceeding to which they were parties.'
'23(1) In any proceeding under this Act, whether defended under 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 su'ch relief.....
then, and in such a case, but not otherwise, the court shall decree such relief accordingly.'
7. Section 23(11) makes it clear that if the court is satisfied that the petitioner is in any way taking adventage of his or her own wrong or disability, the court may not grant a relief in any proceedings under this Act.
8. Now, therefore, two questions arise in the present case namely, (1) Whether the petitioner has succeeded in establishing that there has been no restitution of conjugal rights between the parties for a period of two years or upwards after the passing of the decree for restitution of conjugal rights, and (2) Whether the petitioner has in any way taken advantage of his own wrong.
8A. In Smt. Kanak Lata Ghose v. Amal Kumar Ghose AIR 1970 Cal 328 it was found that the brother and sister's husband of the wife had made an honest endeavour to bring about reconciliation between the husband and the wife after passing of the decree for restitution of conjugal rights but they got no response either from the husband or his relations. It appears that in that case the husband's suit for restitution of conjugal rights was decreed by the High Court to the extent 'that the wife do return to the plaintiff's house though not necessarily at Naihati, as mentioned in the plaint, and render him conjugal rights'. It was found that in the special facts and circumstances of the case, the husband should have shifted to a separate house in order to make it possible for the wife to return to him as per direction given by the court. It was also found that the husband made no enquiry about his wife after the decree, whereas the wife sent three letters to the husband intimating her willingness to live with him, but the husband was not at all responsive. . The learned Judges further found that the relations of the wife approached the husband and his relations to bring about reconciliation between the two, but the husband did not show any inclination. The decision in that case, if I may say so with respect, turned on the special facts and circumstances of the case. It was observed that it was not the intention behind the decree for restitution of conjugal rights that the husband would merely stand by and watch the situation after obtaining the decree for restitution of conjugal rights and that the High Court intended that the intiative taken by the husband in filing the suit for restitution of conjugal rights on an offer to take her back should be maintained even after the passing of the decree. However, I wish to submit that I do not subscribe to the following observations made by the learned Judges:
'Besides, even in normal circumstance a Hindu wife is not expected to go to her father-in-law's place unless escorted by the husband or any other responsible member of the husband's family. In any event, either the husband or the father-in-law or the mother-in-law sends a message to the paternal home of the wife for the return of the wife to her father-in-law's place. It is not usual for a Hindu wife to go to her father-in-law's place of her own accord without being asked to do so by the father-in-law or the mother-in-law or the husband. Even if nothing unpleasant happened in the past, even if every thins proceeded normally, it was the duty of the husband in the instant case to arrange for the return of the wife to her father-in-law's place if the husband wanted the wife to join him in the Naihati house and if he had no intention of setting up a separate matrimonial home.'
9. In my respectful submission such notion cannot be imported while interpreting the provisions of the Hindu Marriage Act which has made a radical departure from the ancient Hindu Law of marriage which did not recognize divorce and under which marriage was an indissoluble tie. I do concede that proceedings under Section 9 of the Act are not to be resorted to as a device for obtaining a divorce from a wife against whom it may not be possible to prove any of the charges justifying a divorce, A request for restitution of conjugal rights should not be merely a pretence and sham and the proceedings intended only with a view to obtain divorce. But unless there is any material on the record to infer that the decree for restitution of conjugal rights was obtained merely as a device the decree of divorce should not be denied merely because the husband did not go to the paternal home of the wife or send his relations to bring her. What is of importance is that after the decree for restitution of coniugal rights has been obtained the husband should be willing to take back the wife and should not create any obstruction in her way in resuming marital relations with him. In my view the Calcutta case turned upon the special facts and circumstances and the view taken therein has no application to the facts and circumstances of the present case.
10. In B. R. Syal v Smt. Ram Syal. AIR 1968 Punj & Har 489 the learned Judge found that the husband had throughout the proceedings against his wife, been taking advantage of his own wrong in order to get his marriage with her dissolved and no impropriety and illegality was ever committed by the wife, who at all times was anxious and willing to live with him as his wife and had been imploring him to take her back which he did not do and for no justifiable reason and she had never deserted him but was driven out of the house. It was found that every sincere effort was made by the wife to comply with the decree for restitution of coniugal rights by expressing a desire to live with her husband. She felt that she had been neglected yet she begged of her husband to take her back and not to desert her. It was in these circumstances that the decree of divorce was refused.
11. In Laxmibai v. Laxmichand AIR 1968 Bom 332. it was held that the right conferred by Section 13(1A) of the Act is subject to the provisions of Section 23(1) and if the wife succeeds in establishing that the petitioner husband had refused to comply with the decree for restitution of coniugal rights, the court would be justified in dismissing the petition for divorce on the ground that the petitioner was taking advantage of his own wrong. In that case the wife had obtained a decree for restitution of conjugal rights and the husband initiated the proceedings for dissolution of the marriage by a decree of divorce on the ground that the decree for restitution was never complied with. The wife's case was that the decree for restitution of conjugal rights remained unexecuted on account of the default on the part of the husband who had wilfully refused to comply with the decree. Para 16 of the report shows that after discussing the evidence of the husband in paras 17 and 18, the learned Judge came to the conclusion that the husband who had presented the petition for dissolution of the marriage by a decree of divorce was taking advantage of his own wrong and therefore the petition for divorce was dismissed.
12. In N. Someswara v. Leelavathi. AIR 1968 Mys 274 it was observed that a decree for restitution of conjugal rights does not impose a continuing obligation on the wife to stay with the husband till one of them dies, nor the provisions of Section 13(1A) of the Act can be construed as referring to the failure to obey continuously the decree for two years, nor they can be understood as contemplating continuous obedience to the decree even beyond the period of two years and until the death of one of the spouses. It was also observed that a mere act of returning to the matrimonial home and a brief stay cannot be deemed to be compliance with such a decree. In order to constitute compliance with such a decree there must be genuine attempt or intention on the part of the wife to return to her husband. But that is not to say that even where the wife returns to her matrimonial home, lives there with a genuine intention to receive co-habitation with her husband and has to leave that home after some time on account of the hostile attitude of the husband, there is no compliance with such decree. On the facts the learned Judges found that the wife made all her efforts to fulfil her marital obligations to her husband but the husband refused access to her and denied his society to her. It was. therefore, held that it was not open to the husband to complain that the wife had not complied with the decree for restitution of conjugal rights. Thus it was a case where the wife was willing to obey the decree but the husband put unjustifiable obstructions in the performance of the decree,
13. Now turning to the facts of the present case a perusal of the judgment for restitution of conjugal rights dated 30th September, 1969, shows that the plea of cruelty resorted to in the present case by the wife was also taken in the proceedings for restitution of coniugal rights and it was held by the court that the plea was not well-founded. The respondent has stated as PW/1 that after the passing of the decree for restitution of conjugal rights the appellant never showed her willingness to come to his house and cohabit, with him. He has, further stated that he does not drink and has never ill-treated his wife. As against this the appellant Rameshwari DW/2 has deposed that she was not willing to cohabit with her husband unless somebody gave a guarantee for his good behaviour. Her father Hiralal, DW/1, has, in the first instance, reiterated the charge of gambling and drinking against the respondent which the appellant had levelled against the respondent in the proceedings for restitution of conjugal rights but the same had been rejected. He has further stated that he was prepared to send his daughter to the respondent either through a Pan-chayat or on somebody standing as a guarantee or if the husband himself came to his house to take her. He has also stated that he had told the respondent that he would himself leave his daughter at the respondent's house but the respondent refused to take her back. However, he has admitted that he never took the appellant to the respondent's house. It may be relevant to point out that no such plea has been taken by the appellant in the written statement that the appellant's father asked the respondent to take the appellant back but the respondent refused to do so. Consequently this allegation appears to be an afterthought. Apart from this. Heeralal has not stated as to where, when and in whose presence he made an offer to the respondent to take back the appellant and the respondent refused to do so. No letter is alleged to have ever been sent by the wife or her relations or her parents to the respondent that she was prepared to comply with the decree for restitution of conjugal rights, nor any message appears to have been sent from the wifes' side to the husband in this connection.
14. It has been, further stated at the bar on behalf of the respondent that execution was levied of the decree for restitution of conjugal rights, on which execution petition Kirpashanker v. Rameshwari was registered as No. 17 of 1969 in the court of District Judge. Ganganagar, but the same was consigned to record on February 2. 1970 on failure of the appellant to comply with the decree. His counsel has also made an application in the Court today that the record of the execution petition referred to above may be sent for or in the alternative time may be granted to him to produce a certified copy of the order passed in the execution case. The respondent should have produced the necessary documents pertaining to the execution case in the trial court. I am not prepared to defer the case for either summoning the execution file or giving an opportunity to the respondent to produce a certified copy of the order dated February 2. 1970. However, the fact that the execution of the decree for restitution of the conjugal rights was levied is not being denied on behalf of the appellant and in the circumstances. I do not see any ground for not accepting the statement at the bar. Be that as it may the fact remains that there is nothing on the record to show that after the passing of the decree for restitution of conjugal rights and before making the petition for divorce (which was filed after expiry of more than two years from the date of the decree for restitution of conjugal rights) the husband had created any obstruction in the way of compliance of the decree by the wife or that he wanted that the decree may not be complied with so that his way for obtaining divorce may be cleared. I am, therefore, unable to come to the conclusion that the respondent is in any way taking advantage of his own wrong. I am also unable to hold that the proceedings for restitution of conjugal rights were resorted to by the respondent only as a device or a pretext to obtain dissolution of marriage by a decree of divorce or that the intention of the husband was not to get restitution after the decree for restitution was obtained or that he was not willing and did not evince his desire for resumption of marital relations with the wife. On the other hand the desire of the husband to take black the wife and resume marital relations with her is evinced by the fact that he took out execution of the decree for restitution of conjugal rights. All that has been stated by the appellant in her written-statement as well as in her statement as a witness is that she was prepared to cohabit with her husband by intervention of Panchayat or if somebody stood as a guarantee. However, even this sort of offer has not been substantiated. It is true that after the institution of the proceedings for divorce, the respondent has said in his statement as PW/1 that, now, he was not prepared to take the appellant back as she had not complied with the decree. It is not contended before me that the refusal of the husband to take back the wife after the institution of the divorce proceedings when there had been no restitution of conjugal rights for a period of two years or upwards after the passing of the decree for restitution of conjugal rights would constitute a ground for refusing a decree of divorce. The conduct of the petitioner during two years after the passing of the decree for restitution of conjugal rights is relevant and not Ms willingness or other wise after he has applied for a decree of divorce. The appeal is, therefore, without force.
15. In the result I dismiss the appeal. But the parties are left to bear their own costs throughout.
16. Before parting with the case I may observe that I made an endeavour to bring about reconciliation between the parties but reconciliation is not possible.