S.N. Deedwania, J.
1. Mst. Pushpa appellant non-petitioner, has preferred this appeal against the judgment and decree, elated April 15, 1980 of learned District Judge, Jodhpur.
2. Briefly stated the facts are these. Respondent Kishanlal filed a petition in the court of District Judge, Jodhpur with a prayer that his marriage with- Mst. Pushpa be dissolved: by a decree of divorce. It is alleged in the petition that the parties were married; at Jodhpur according to the Hindu rites. On 7-9-74, Mst. Smt. Pushpa deserted the respondent and since then, they were living separately. Though, it is not stated clearly in, the petition but it appears that Mst. Pushpa filed an application for Restitution, pf conjugal rights and after some proceedings, the respondent agreed that the petition be decreed. The court, therefore, by its judgment, dated August 26, 1977 passed a decree in favour of Mst. Pushpa for restitution of conjugal rights. It is further alleged in the petition that after passing this decree, there has been no resumption of cohabitation between the parties till 1-12-78, the date on which, this petition for divorce was filed. It is also alleged that there has been no restitution of conjugal rights as between the parties to the marriage for the period of 1 year or up ward, after passing of the decree for restitution of conjugal rights, Mst. Pushpa took the defence that though a decree was passed in her favour, the respondent did not keep her with him and has filed this wrong petition. It was further alleged that she was always ready and willing to live with Kishanlal respondent and to discharge her duties as a Hindu wife. Respondent Kishanlal examined himself in support of the petition and Mst. Pushpa in defence. Learned District Judge disbelieved the statement of Mst. Pushpa and came to the conclusion that in view of Section 13(1A) of the Hindu Marriage Act (hereinafter referred to as 'the Act'), the respondent was entitled to a decree for divorce.
3. I have heard learned Counsel for the parties and perused the record of the case carefully.
4. It is strenuously argued by learned Counsel for the appellant that the conduct of the respondent had been undeserving & unbecoming and the respondent is taking advantage of his own wrong. The respondent turned out the appellant from his house. When she filed a petition for restitution of conjugal rights, the respondent with an ulterior motive gave consent for passing of the decree. The respondent before filing this petition for dissolution of marriage by a decree of divorce, had filed another petition for similar relief, but got it dismissed. My attention was drawn to the observations made in Smt. Kanak Lata Ghose v. Amal Kumar Ghose (' : AIR1970Cal328 ), it was thus observed:
It may also be pointed out that the suit for restitution of conjugal rights was decreed by the High Court solely for the purpose of giving a fair trial to the offer made by the the husband to take back the wife. Hence, it was incumbent upon the husband after the disposal of the said suit by the High Court to keep open that offer by reiterating it after the passing of the decree. It was not the intention of the High Court that the husband would merely stand by and watch the situation after obtaining the decree for restitution of conjugal rights. The High Court intended that the initiative taken by the husband in filing a suit for restitution of conjugal rights on an offer to take her back should be maintained even after the passing of the: decree. Hence, unless we find that husband offered to take her back even after the passing of the decree for restitution of conjugal rights, made appropriate arrangements and took necessary steps to facilitate the wife's return to him either in family dwelling house at Naihati or in a separate matrimonial home we cannot say that the wife failed to comply with the decree for restitution of conjugal rights.
My attention was drawn to the observations made in Laxmibai v. Laxmichand : 72ITR157(Bom) . However, it may be stated that the law is not correctly sumed in these authorities. The conflict between Section 13(1A) and Section 23(1) of the Act has now be resolved by the Supreme Court and it was thus observed in Dharmendra Kumar v. Usha Kumar : 1SCR315 .
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 In RamKali's case (ILR 1971 (1) Delhi 6) (supra) a Full Bench of the Delhi High Court held that mere non-compliance with the decree for restitution does not constitute a wrong within the meaning of Section 23(1)(a). Relying on and explaining this decision in the later case of Gajna Devi v. Purshottam Giri : AIR1977Delhi178 (supra) a learned Judge of the same High Court observed: (at page 182 para 12)
Section 23 existed in the statute book prior to the insertion of Section 13(1-A)...Had Parliament intended that party which is guilty of a matrimonial offence and against which a decree for judicial separation or restitution of conjugal rights had been passed, was in view of Section 23 of the Act, not entitled to obtain divorce then it would have inserted an exception of Section 13(1A) and with such exception, the provision of Section 13(1A) would practically become redundant as the guilty party could never reap benefit of obtaining divorce, while the innocent party was entitled to obtain it even under the statute as it was before the amendment. Section 23 of the Act, therefore, cannot be construed so as to make the effect of amendment of the law by insertion of Section 13(1 A) nugatory..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 has been conferred on him by Section 13(1 A)... In such a case, a party is not taking advantage of his own wrong, but of the legal right following upon of the passing of the decree and the failure of the parties to comply with the decree..' In our opinion the law has been stated correctly in Ram Kali v. Gopal Das (supra) and Gajna Devi v. Purshottam Giri : AIR1977Delhi178 (supra). Therefore, it would not be very reasonable to think that the relief which is available to the spouse against whom a decree for restitution has been passed, 'Should be defied to the one who does not insist on compliance with the decree passed in his or her favour. 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 disclination 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.
There is no doubt, that the respondent though offered to take back the appellant and conceded to a passing of a decree for restitution of conjugal rights made no attempt to comply with the decree. In that sense, he is defaulting party, but 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 or refusal to comply with the decree for restitution of conjugal rights, it must be misconduct serious enough to justify denial of the relief to which the respondent is otherwise entitled. No such misconduct serious enough to justify the denial of the relief has been pleaded or sought to be proved by evidence by the appellant.
5. It is strenuously argued by learned Counsel for the appellant that learned District Judge committed a grave error in disbelieving the statement of the appellant. Her testimony is to the effect that after passing of a decree during the pendency of divorce petition in the month of 'fagun', the respondent took her to his house but turned her out after some days. She also stated that after passing of the decree for restitution of conjugal rights, she had gone to the house of her husband. She further stated that once before also, she went to the house of the respondent but he did not permit her to come in the house. In the cross-examination, she also stated that after passing of the decree for restitution of conjugal rights, she went to the house of the respondent on the occasion of the death of her mother-in-law and then also she discharged her marital duties and submitted to his sexual intercourse. I carefully have perused this statement. In the examination-in-chief, the witness only asserted that during the pendency of the petition for divorce, the respondent took her to his house and also turned her away after a few days. In the cross-examination, the witness has tried to introduce some other occasions when she submitted' to the sexual intercourse by the respondent and went to his house. This fact itself cast a doubt on the credibility of the witness. The respondent was not asked in the cross-examination by the appellant that there had been restitution of conjugal rights. After passing of the decree for restitution of conjugal rights, the respondent was not asked a single question whether the appellant has submitted to the sexual intercourse by him. Not only that such a plea is not found in the written reply filed by the appellant. For these reasons, I am of the view that the statement of the appellant was rightly disbelieved. This appears to be nothing but after thought by the appellant at the time when she entered in the witness box. In fact such defence was not envisaged by her till the respondent entered in the witness-box. The appeal is thus devoid of any force.
6. In the result, the appeal is dismissed with no order as to costs.