S.K. Mal Lodha, J.
1. This is an appeal under Sections 28 of the Hindu Marriage Act, 1955 (herein after referred to as the Act') against the dismissal of the petition for decrees by the learned District Judge, Banswara dated October 27, 1977. The appellant (husband) submitted a petition under Section 18(1-A) or the Act before the learned District Judge, Banswara against the respondent (wife) on March 4, 1977. It was stated in the petition that a civil suit No. 2 of 1972 was instituted by the respondent against tie appellant for the restitution of conjugal rights. The District Judge, Jhabua (M.P.) granted a decree for restitution of conjugal rights on December 21, 1974. Aggrieved by the decree for restitution of conjugal rights, the appellant preferred an appeal and that appeal was dismissed by the Madhya Pradesh High Court, Jabalpur on June 21, 1977. After the expiration of the period of two years, a petition for granting divorce under Section 13(1-A) of the Act was submitted before the learned District Judge, Banswara. The respondent (wife) contested this application by filing a reply on July 16, 1977. It was stated that she was ready and willing to remain with the appellant (husband) even before and after December 21, 1974 i.e. when the decree for restitution of conjugal rights was passed. After the submission of the reply by the respondent, the learned District Judge examined the parties under O.X. of the Code of Civil Procedure on August 6, 1977. In that statement, the appellant stated that he is not ready to keep his wife with him It was admitted by him that he took no steps for bringing his wife so that she may live with him. The respondent categorically stated that she wanted to remain with her husband and wants to live with him. The learned District Judge framed two issues including relief on August 6, 1977. Issue No. 1, when translated into English, runs as under,-
Whether the non petitioner (Smt. Sulochana) has committed default in obeying the decree awarded in case No. 2 of 1972 by the District Judge, Jhabua If so, what is the effect on these proceedings.
The appellant examined himself in support of his petition for the dissolution of marriage by decree of divorce. The respondent examined herself and and D.W. 2 Nathmal in rebuttal. The learned District Judge held that the appellant is not entitled to get a decree for divorce in view of the bar created by Section 23(1)(a) of the Act and dismissed the petition of the appellant on October 27, 1977. Aggrieved by this judgment, the appellant has come up in appeal before this Court.
2. I have heard Mr. H N. Parkh for the appellant and Mr. N.M. Lodha for the respondent and have perused the record.
3. The learned District Judge placed reliance on Chaman Lal Chuni Lal v. Smt. Mohinder Devi . In that case, it was held that in the proceedings under the Act, the court has to be satisfied under Section 23 about the various matters detailed therein and if it is not so satisfied, then it has to refuse relief to the, petitioner. It was further observed in that judgment that one of these matters is that the Court has to be satisfied before granting relief to a party hit the party is not taking advantage of its own wrong for obtaining the said relief. The learned Judge was of the opinion that where a decree, for restitution of conjugal rights h is been passed against the husband it is his duty to make efforts to comply with the said decree. He cannot avoid the restitution of conjugal rights for two years after the decree and then make petition for divorce on that ground, thus taking advantage of his own wrong. The learned District Judge on the bests of this decision came to the conclusion I hit it was further appellant to establish that he did make all efforts to obeying the decree and he was lot successful The decision in Chaman Lal's case case up for consideration before the Full Bench of the Punjab and Harvana High Court in Smt. Binla Divi v. Singh Raj. O. Chinnappa Reddy, J. (as he then was) agreed with the conclusion of B.S. Dhillon J. that the appeal before them should be allowed while generally agreeing with the outline of the reasoning given by B.S. Dhillon J. with whom Hanoanslal, J coincurred, who gave his own note having regard to the importance of the question involved in appeal Dhillon J. observed as follows,-
Presently, we are concerned with a case where a decree for restitution of conjugal rights has been obtained by the respondent-husband under Section 9 of the Act on the ground that the wife has without reasonable excuse withdrawn from his society. In view of the fact that the wife was found to have left the company of the husband without reasonable excuse, decree for restitution of conjugal rights was granted to the husband. It would thus be, seen that if she failed to comply with the decree for restitution of conjugal rights, it cannot be said that she committed any wrong after the passing of the decree against her. In fact this wrong which she was found to have committed in the proceeding under Section 9 of the Act cannot be said to be a wrong committed by her after the passing of the decree so as to disentitle her from getting the relief under Section 13(A.) because the provisions of Section 23(1)(a), of the, Act, The, advantage of her own wrong or disability mentioned in Section 23(1)(a) should be an advantage of her own wrong or disability, foundation of which was laid after the decree for restitution was conjugal rights was passed.
He summarised his conclusion in the following words,-
From what has been stated above, it appears the provisions of Section 23(1)(a) of the Act cannot be invoked to refuse the relief under Section 13(1-A)(ii) of the Act on the ground of non-compliance of a decree of restitution of conjugal rights where there. has not been Restitution of conjugal right as between the parties to, the marriage for a period of one year or up yards after the passing of decree for restitution of communal rights in proceedings in which they were parties. The contention of the learned counsel for the respondent, that if the provisions of Section 21(1)(a), are interpreted in the manner as suggested above, the provisions of Section 23(1)(a) will become null and void and will not be applicable to any proceedings, is without any merit. As would be seen, in proceedings under Section 9 for restitution of conjugal rights, under Section 10 of the Act and so also under Section 13(1) the provisions of Section 23, wherever they are applicable on the fact proved on the record of the case will be attracted. It is only to the limited extent in proceedings of divorce under Section 13(1-A) where the divorce is claimed by either of the parties on the ground that there has been no resumption of cohabitation after the passing of a decree for judicial separation or that there has been no restitution of conjugal rights after a period of one year or upwards after the passing of the decree for institution of conjugal rights that the provisions cannot be invoked on the ground of non compliance with the decree passed so as to held that the said act of non compliance is in anyway taking advantage of his or her own wrong.
Chaman Lal's case was over ruled by the Full Bench by making the observation that the reasoning given by the learned Sing. It Judge in that case was not tenable A Full Bench of the Delhi High Court in Rom Kali v. Gopal Dass. ILR 1971 Delhi 6 held that the intention of the legislature while amending the Act by Act No. XLIV of 1964 was that the 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 (1) of Sub-section (1) of Section 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, for obtaining the relief of dissolution of marriage by a decree of divorce. This aspect of the matter was again considered by learned Single Judge of the Delhi High Court in Smt. Gajna Devi v. Purshottam Giri : AIR1977Delhi178 who observed as follows,..the expression 'petitioner is not in any way taking advantage of his or her own wrong occurring in Clause (a) of Section 23(1) of the Act does not apply to taking advantage of the statutory right to obtain dissolution of marriage which Las been conferred on him by the Section 13(1-A) of the Act subsequent to the passing of the decree for judicial separation or restitution of conjugal rights, In such a case, a party is not taking advantage of his own wrong, but of the legal right following upon the passing of the decree and the failure of the parties to comply with the decree of resumption of cohabitation after its passing. Nevertheless, if after the passing of the previous decree, any other facts of circumstances, occur, which in view of Sub-section (I) of Section 23 of the Act disentitle the spouse from obtaining the relief of dissolution of marriage by a decree of divorce under Section 13(1-A) of the Act, the same can be legitimately taken into consideration and must be given due effect.
The two decisions of the Delhi High Court referred to above were approved by their Lordships of the Supreme Court in Dharmendra Kumar v. Usha Kumari : 1SCR315 . I may also mention here that in Laxmibai Lexmichand Shah v. Laxmichand Ravji Shah : 72ITR157(Bom) , the learned Single Judge took the view that the right conferred by Section 13(1-A) 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 conjugal 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. I have already advised above to Full Bench decision of the Punjab High Court and the two decisions of the High Court taking a contrary view. For the reasons mentioned in the Full Bench decision of the Punjab High Court in Smt. Bimla Devi's case and the Delhi High Court in the above referred two decisions, I am of the opinion that the previsions of Section 23(1)(a) cannot be invoked to refuse the relief under Section 13(1-A)(ii) on the ground of non-compliance of the decree for restitution of conjugal rights provided the conditions mentioned in that section are satisfied. I respectfully agree with the views expressed by the Fall Bench of the Punjab and Haryana High Court and Delhi High Court in the decisions referred to above.
4. It was contended on behalf of the respondent (wife) that the respondent went to the house of the appellant and at that time, the father-in-law of the respondent demanded Rs. 3,000/ and s moved his (father-in law of the respondent) willingness to keep her provided she agreed to abide by the conditions which he (father-in-law of the respondent) thought fit to impose. On this his is, it is argued that the cause for non-compliance of the decree was the demand for Rs. 3000/- by the father in-law of the respondent. This aspect of the case put forth by the respondent was not put to the appellant in his cross-examination when he claimed himself in support of issue No. 1 in the trial court. The learned District Judge, after taking note of the statement of the appellant observed that the respondent was not retired to establish that she did not mike any efforts to comply with the decree and it was for the appellant to establish that he made efforts in this regard. I have gone through the statement of the respondent. I am not satisfied with the version given for not complying with the decree by the respondent particularly when not a single question was put to the appalling in regard to the demand of Rs. 3.000/- by the father-in-law of the respondent from her, when she went to the house of the appellant The above-mentioned submission of the earned Counsel cannot be of any help to the respondent in view of the decision in Dharmendra Kumar's case : 1SCR315 . It was contended in that case before their Lordships on behalf of the appellant that the allegation made in the written statement that the conduct of the petitioner in not responding to his invitations to live with him meant that she was trying to take advantage of her own wrong/or the purpose of relief under Section 13(1-A)(ii) of the Act. While dealing with this contention, their Lordships of the Supreme Court observed as follows,-
On the admitted facts, the petitioner was undoubtedly entitled to ask for a decree of divorce. Would the allegation, if true, that she did not respond to her husband's invitation to come and live with him disentitle her to the relief? We do not find it possible to hold that it would.
Their Lordships of the Supreme Court agreed with the observations of the learned Single Judge nude in Smt. Gajna Devi's case : AIR1977Delhi178 and held that 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. In the written reply submitted to the petition by the respondent, she stated in para 4 that she was ready and willing to live with her husband before and after the passing of the decree for restitution of conjugal rights of December 21, 1974. In view of the decision of their Lordships of the Supreme Court, that by itself will not disentitle the appellant to obtain a decree for dissolution of marriage by a decree of divorce.
5. No other point was argued by the earned Counsel for the parties.
6. The result is that the appeal succeeds and the judgment dated October 27, 1977 passed by the learned District Judge, Banswara, dismissing petition of the appellant is set aside and a decree of divorce is granted to the appellant. In the circumstances of the case, I leave the parties to bear their own costs.