B.N. Dash, J.
1. This appeal arises out of a suit for dissolution of marriage between the parties by a decree for divorce under Section 13 of the Hindu Marriage Act, 1955 (in short, 'the Act'). Admittedly, the parties are Hindusand the appellant is the husband of the respondent, their marriage having been solemnised according to Hindu custom and rites in February, 1987. After the marriage they lived together as husband and wife peacefully for a period of three months in the house of appellant's brother in Puri town. Thereafter, the appellant-husband went away to Durga-pur in the State of Madhya Pradesh where he was working as Sepoy in the Central Industrial Security Force attached to the steel plant. The respondent-wife went away to her parents house which was also situated in Puri town at a very small distance from the house of the brother of the appellant. It is alleged by the husband that attempts were made to bring hack the wife but the same having proved abortive, he had to institute O.S. No. 29 of 1979(1) in the Court of the Subordinate Judge, Puri for restitution of conjugal rights under Section 9 of the Act on the ground that the wife had wilfully deserted him without any lawful excuse. The said suit was disposed of on 16-4-1980 decreeing the suit with a direction to the wife to join the husband without fail. Even after passing of the decree the wife having not joined the husband, the latter filed Original Suit No. 54 of 1981(1) in the Court of the Subordinate Judge, Puri for dissolution of the marriage by a decree of divorce. The wife resisted the suit contending, inter alia, that she was ill-treated by her husband's brother's wife for which it was impossible on her part to live in that house and that she was willing to join her husband, if she was taken to his place of service at Durgapur. The learned Subordinate Judge trying the suit came to hold, on the basis of the evidence on record, that the wife's plea of illtreatment by her husband's brother's wife was not correct and that since the wife had not resumed marital life with the husband even after passing of the decree for restitution of conjugal rights and her alleged willingness to join the husband was a myth, he decreed the suit. Being aggrieved by such judgment and decree, the wife preferred appeal which, on transfer to the file of the Addl. District Judge, Puri, was registered as T.A. No. 87/26 of 1983/82. The learned Addl. District Judge came to hold that since the wife was alleging illtreatment atthe hand of her husband's brother's wife, the husband was obliged to either take her to his place of posting at Durgapur or to keep her in their ancestral house in Puri town and he having not done so the wife was justified in not obeying the direction in the decree for restitution of conjugal rights. With these findings, he allowed the appeal and thereby set aside the judgment and decree passed by the learned Subordinate Judge, Puri. Being aggrieved by such judgment and decree, the present appeal has been filed.
2. Mr. B. B..Mohanty, the learned counsel for the appellant has raised one contention, the same being that after passing of the decree for restitution of conjugal rights, the wife having not obeyed the decree for restitution of conjugal rights for more than a year, the husband was entitled to the dissolution of the marriage by a decree of divorce under Section 13(1A) of the Act. According to the learned counsel, there was no scope for the learned Addl. District Judge to embark on an inquiry whether there was reason for the wife not to obey the decree for restitution of conjugal rights. On the other hand, Mr. U. K. Samal, Advocate appearing on behalf of Mr. R. K. Mohapatra, the learned counsel for the respondent urges that the petition for divorce was premature having not been filed after one year from the date of passing of the decree for restitution of conjugal rights. It is further urged by him that the husband was wrong in not finding out an alternative residence for the wife to live and accordingly he was not entitled to the relief of divorce under Section 23(1) of the Act. In view of these rival contentions, the points that arise for consideration are:--
(i) Whether the application for divorce is liable to be held as premature; and
(ii) Whether by not providing a separate residence for the wife subsequent to the passing of the decree for conjugal rights, the husband was guilty of any wrong within the meaning of Section 23(1) of the Act so as to disentitle him to a dissolution of marriage by a decree of divorce?
3. For a decision on the first point, it isnecessary to refer to Clause (ii) of Sub-section (1-A) of Section 13 of the Act which is as under:--
'13. Divorce-
(1-A) Hither 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-
(i) XXXXX
(ii) that there has been no, restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a-decree tor restitution of conjugal rights in a proceeding to which they were parlies.'
According to this clause, if there is already a decree for restitution of conjugal rights in a proceeding between the parties to a marriage, either party to that marriage is entitled to file a petition for the dissolution of the marriage by a decree of divorce, if there is no restitution of conjugal rights as between them for a period of one year or upwards after the passing of such decree. In this case, the judgment for restitution of conjugal rights was passed on 16-4-1980 and the petition for divorce was filed on 17-4-19S1. It is the argument of Mr. Samal for the respondent that the judgment in a suit for restitution of conjugal rights cannot be called the decree passed in that suit and since the petition for divorce was filed on the second day after completion of one year from the date of the judgment, it can scarcely be said that the same was filed one year after passing of the decree for restitution of conjugal rights. It is quite well known that after passing of a judgment, a decree is required to-be drawn up in terms of the judgment. But there is a distinction between the passing of a decree and drawing up of a decree. According to the argument of Mr. Samal, argument the petition for divorce should be filed only after one year from the date of drawing up of the decree for restitution of conjugal rights. But this is not the requirement under the above quoted clause which spe'aks of filing of petition for divorce after apcriod of one year or upwards from thepassing of decree for restitution of conjugal rights. It is well known that in an appeal against a decree in a suit, limitation has to be computed from the date of judgment in that suit and not from the date of drawing up of a decree. So, far the purpose of Clause (ii) as quoted above, the expression 'the passing of a decree' will mean 'the passing of a judgment'. Even assuming for the sake of argument that the period of one year has to be computed from the date of drawing up of the decree, it cannot be said that the petition is premature because there is no material on record to show that the decree was not drawn up on the next date of the judgment in which case the petition would be beyond the period of one year. So, I hold that the petition for divorce is not premature.
4. In order to render a finding on the second point, it is necessary to note Section 23(1) (a) and (e) of the Act which is quoted below:--
'23. Decree in proceedings-
(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that-
(a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in Sub-clause (a). Sub-clause (b) or Sub-clause (c) of Clause (ii) of Section 5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b) xx xx xx
(c) xx xx xx
(d) xx xx xx
(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.'
Admittedly, in the present case the relief of divorce was not claimed on the basis of the Sub-clauses (a), (b) and (c) of Clause (ii) of Section 5. It was claimed, as indicated earlier, on the ground of non-compliance of thedecree for restitution of conjugal rights. According to Mr. Samal, there was justifiable grounds for the wife not to comply with such decree. It is pointed out by him that the husband was wrong in forcing the wife to live in the house of his brother where she was subjected to ill-treatment without providing a separate residence in Puri town or without taking her to his place of service at Durgapur and that if a decree of divorce is granted to him, he will be permitted to take advantage of his own wrong. In that view of the matter, his submission is that the ultimate conclusion of the appellate Court refusing to grant the relief of divorce is not liable to be interfered with. On the other hand, Mr. B. B. Mohanty for the appellant submits that the 'wrong' as contemplated in Section 23(1)(a) has reference only to the period prior to the passing of the decree for restitution of conjugal rights and not to the period subsequent thereto. It is further submitted by the learned counsel that even if the wrong contemplated in Section 23(1)(a) is held to have reference to the period subsequent to the passing of the decree for restitution of conjugal rights, there being no material to show that the residential ancestral house in Puri town of the appellant-husband was vacant during the relevant period or that the husband was capable enough to take the wife to his place of service at Durgapur, it cannot be said that he committed any wrong and even if it is considered to be a wrong, it is not so serious as to disentitle him to the statutory right flowing from Section 13(1A) of the Act.
5. In the case of Dharmendra Kumar v. Usha Kumar, AIR 1977 SC 2218, the wife had obtained a decree for restitution of conjugal rights and a little over two years after the decree was passed she presented a petition for dissolution of marriage by a decree of divorce under Section 13(1A)(ii) of the Act because there was no restitution of conjugal rights during that period. The husband took the stand that he had made attempts to comply with the decree for restitution of conjugal rights by writing several registered letters to the wife and otherwise inviting her to live with him, but the wife refused to accept some of the letters and never replied to those which shehad received. On those facts it was argued that the wife having herself prevented the restitution of conjugal rights, she was not entitled to a decree for divorce as otherwise she would be permitted to make a capital out of her own wrong. The Supreme Court approving the view taken by the Delhi High Court in Ram Kali v. Gopal Dass reported in ILR (1971) 1 Delhi 6 (FB) and in Gajna Devi v. Purshotam Giri, AIR 1977 Delhi 178 observed as under:--
'.....Therefore, it would not be veryreasonable to think that the relief which is available to the spouse against whom a decree for restitution has been passed, should not be denied 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)(e), the conduct alleged has to be something more than a mere disinclination to agree to an offer of which, it must be misconduct serious enough to justify denial of the relief to which the husband or thewife is otherwise entitled.'
6. In Bai Mani v. Jayantilal Dayabhai, AIR 1979 Guj 209, the admitted facts were that after remaining with his wife for seven years and begotting three children through her, the husband developed intimacy with a friend of his wife and got three children through her. The wife obtained a decree for judicial separation, but since there was no resumption of cohabitation for a period of two years after passing of the decree for judicial separation, the husband presented a petition for dissolution of the marriage by a decree of divorce under Section 13(1A) of the Act which was resisted by the wife. The question for consideration in that case was whether the 'wrong' as contemplated in Section 23(1)(a) of the Act should be a wrong separate from the one existing prior to the passing of the decree for judicial separation or it means a continuous wrong. A Division Bench, on consideration of the decision of the Delhi High Court in Gajne Devi's case (AIR 1977 Delhi 178) (supra) and the decision of the Supreme Court in Charmandra Kumar's case (AIR 1977 SC 2218) (supra), case to hold as follows (at p. 214 of AIR):--
'.....If the view, which has beencanvassed by the learned Advocate for the appellant-wife is accepted, it would in effect render me right which has been given under the amending provision contained in Section 13A even to a defaulting party or a party in wrong for obtaining the relief specified in Section 13 nugatory. We have, therefore, got to reconcile these two provisions and the only way in which one case reconcile is, as has been done by the learned single Judge of the Delhi High Court in Gajna Devi's case (AIR 1977 Delhi 178) (supra), that there must be some facts or circumstances occurring after the decree for judicial separation, which, if amounting to substantial wrong that in granting a decree for divorce to a defaulting party or a wrongdoer, would amount in the circumstances in giving advantage of his own 'wrong..... As stated by the learnedsingle Judge of the Delhi High Court in Gajna Devi's case (supra) it cannot be said that he is taking advantage of his own wrong when he makes an application for divorce though continuously residing with his mistress after the judicial separation has been granted. As a matter of fact, he is trying to exercise his right granted under the amending provision of the Act.....'
In the case of Jaswinder Kaur v. Kulwant Singh, AIR 1980 Punj & Har 220, the husband obtained a decree for restitution of conjugal rights and the decree having remained incomplied with for the statutory period, the husband filed a petition under Section 13(1A) of the Act seeking dissolution of the marriage by divorce. The wife took the stand that she and her father and few other persons had approached the husband to settle her in his house, but he declined her request. It was contended in the High Court that since the husband was at fault, he was not entitled to a decree for divorce in the light of Section 23 of the Act. The High Court answered the question in the following manner (at p. 222 of AIR):--
'.....The subsequent conduct of the parties can of course be taken into consideration while granting relief but the refusal to let compliance of the decree of restitution ofconjugal rights is not a consideration which can weigh against a party claiming relief of disssolution of marriage under Section 13(1A) of the Act.....'
In Smt. Gurmeet Kaur v. Harbans Singh, AIR 1981 Punj &. Har 161, the husband obtained a decree for restitution of conjugal rights against the wife. Although the wife was ready and willing to comply with the decree, there was total reluctance to resume cohabitation. The husband filed application for divorce after the prescribed period under Section 13(1A) was over. It was resisted by the wife on the ground that reluctance of the husband was a wrong within Section 23(1)(a) which would disentitle him from getting a decree of divorce. The Punjab and Haryana High Court rejected the contention with the following observation (at p. 163 of AIR):--
'.....A perusal of the provision of Section 13(1A) of the Act would show that both parties can present a petition. This would include the party whose conduct has resulted in the failure of the restitution of conjugal rights after the passing of the decree. If the contention was that such party could not file a petition then and here was no question of giving the right to such divorce on the said grounds to both the parties. Therefore, the wrong avenged under Section 23(1)(a) of the Act has to be a wrong of a kind different from a mere conduct on their side of refusing to resume conjugal relationship after passing of the decree in question.'
In Geeta Lakshmi v. G.V.R.K. Servasars Rao, AIR 1983 Andh Pra 111, the wife obtained a decree for restitution of conjugal rights on the ground that the husband had without reasonable cause withdrawn from her society. After decree, the husband not only not complied with the decree, but did positive acts by ill-treating her and finally drove her away from the house. The question that arose for consideration was whether the provisions of Section 13 of the Act are subject to the provisions of Section 23(1)(a) and whether the aforesaid positive acts of the husband could be considered all 'wrong' as contemplated in Section 23(1)(a). A Division Bench of the Andhra Pradesh High Court held thatthe provisions of Section 13 were subject to the provisions of Section 23(1)(a) of the Act. The amendment to Section 13 must be limited to the extent to which the amendments have been made. They cannot be given an extended operation. Section 13 cannot be taken out of the limits of Section 23(1)(a). If it were otherwise, the Parliament would have ended the words 'notwithstanding anything to the contrary' in Section 23(1)(a) or would have been suitably amended Section 23(1)(a) itself, as it was well aware of the provisions of Section 23(1)(a) when Section 13 was amended.
In the case of O. P. Mahta v. Saroj Mahta, AIR 1984 Delhi 159, the husband after obtaining a decree for restitution of conjugal rights against his wife filed a petition for divorce within 4 1/2 months after that decree on the ground that the wife was living in adultery. Subsequently, the husband filed petition for divorce under Section 13(1A) on the ground that there was no resumption of cohabitation within one year after the decree. The wife resisted the petition saying that she could not resume cohabitation because her husband within 4 1/2 months after the passing of the decree for conjugal rights filed a petition for divorce alleging adultery against her. It was further pleaded by her that the husband could not be permitted to take advantage of his own wrong and she was fully justified in not resuming cohabitation. Therein, it was held that the provisions of Section 23(1)(a) of the Act are applicable to the provisions under Section 13(1A) of the Act. It was further held that in the event of the Court finding that the petition for restitution of conjugal rights was presented with an ulterior motive, the Court has to refuse the decree for restitution of conjugal rights and the same principle would also apply in a case where having obtained a decree for restitution of conjugal rights the spouse levels such charges against the other spouse which necessarily compel the other spouse not to comply with the decree.
7. On a consideration of the decision of the Supreme Court and of other High Courts, the following principles of law emerge:--
(i) The provisions of Section 23(1)(a) apply to a petition for divorce under Section 13(1A) of the Act;
(ii) If the wrong is committed by a spouse subsequent to the passing of the decree for restitution of conjugal rights and that wrong is serious enough, the same would disentitle him/her to obtain a decree for divorce; and
(iii) If the wrong existing prior to the passing of the decree for restitution of conjugal rights continues, the same may in suitable cases be considered as a ground for refusing the relief of decree for divorce.
8. Let us now apply these principles to the facts of the present case. Even if the wife's allegation that the husband was wrong in not providing her a residential accommodation at Pun or in not taking her to his place of service at Durgapur, is taken to be true, the same cannot be called so serious as to disentitle the husband to his relief for dissolution of marriage by a decree of divorce. All these legal principles were not placed before the learned Addl. District Judge, Puri for which his conclusion in refusing to grant a decree for divorce has become vulnerable and, therefore, the same cannot be sustained.
9. In the result, the appeal is allowed, the impugned judgment and decree of the appellate Court are hereby set aside and that of the trial Court restored. In the circumstances of the case, parties are left to bear their own costs.