Full Judgment
Sarojnei Saksena, J.
1. Wife-appellant has assailed the divorce decree passed by the Trial Court under Section 13(I-A)(ii) of the Hindu Marriage Act, 1955 (in short the Act).
2. Admittedly, the appellant was married to the respondent on April 11, 1986. Husband-respondent filed a divorce petition on November 8, 1989 which was dismissed in default on December 14, 1990. Wife-appellant filed a petition under Section 9 of the Act for restitution of conjugal rights and obtained an ex parte decree on August 25, 1990.
3. In a nut shell, husband-respondent's case was that after marriage they could not live in harmony in the matrimonial home. There was no issue from this wedlock. Due to their temperamental differences and consequent estrangement they started living separately with effect from October 7, 1989. Wife-appellant filed a complaint under Section 498-A of the Indian Penal Code against him, which is still pending. He filed a petition for divorce against the wife-appellant but during the pendency of this petition since she had obtained a ex parte decree under Section 9 of the Act on August 25, 1990, he did not pursue his divorce petition filed earlier (Hindu Marriage Act Case No. 70 of 1990) and thus his petition was dismissed on December 14, 1990. After the passing of the ex parte decree under Section 9 of the Act, the parties did not resume cohabitation. Statutory period of one year has elapsed and thus he prayed for a decree of divorce under Section 13(I-A)(ii) of the Act.
4. Appellant-wife submitted her reply, raised preliminary objections and inter alia contended that after marriage she was maltreated by the respondent-husband. In May, 1987 she was given severe beating and was turned out of the matrimonial home. Once the husband tried to sprinkle kerosene oil on her clothes and threatened to kill her. Thereupon, a case under Section 107/151 Cr.P.C. was registered against him. It was also objected that his earlier divorce petition was dismissed on December 14, 1990. Hence this petition was barred by res judicata. She was always ready to resume cohabitation but the husband-respondent always avoided.
5. Respondent-husband filed replication and denied the allegations made in the reply filed by the appellant-wife. During trial, the parties examined themselves. Wife examined Swaran Lata R.W. 2 also to corroborate her testimony.
6. On the perusal of the parties' evidence on record, the Trial Court came to the conclusion that after the passing of the ex parte decree under Section 9 of the Act, Exhibit P-2 the parties had not resumed cohabitation. Hence decree under Section 13(1-A)(ii) of the Act was passed.
7. Appellant's learned Counsel raised a preliminary objection that the husband-respondent has not paid maintenance despite order of this Court dated November 30, 1993. Thereupon, it was pointed out by the respondent's Counsel that in compliance with that order, the respondent has paid Rs. 2300/- on February 8, 1994. Appellant's Counsel further contended that thereafter no maintenance has been paid to the appellant. It is apparent from the record that thereafter the appellant never submitted that maintenance is not paid. Hence, there was no occasion to know from the parties whether maintenance is being paid or not.
8. About the merits of the appeal, appellant's Counsel contended that after the ex parte decree dated August 25, 1990, the parties lived together and cohabited with each other. Thus, the decree was satisfied. Husband-respondent's filed this divorce petition on August 28, 1991. The Trial Court has disbelieved appellant's testimony on this point, though she stands corroborated by her witness Swaran Lata R.W.-2. According to him, on this count alone the appeal should be allowed.
9. The above contention is devoid of any substance. In her reply to the divorce petition, wife-appellant has not pleaded that after the ex parte decree Exhibit P-2 dated August 25, 1990, the parties resumed cohabitation. In reply to para No. 9 of the petition, it is specifically pleaded that thereafter she was always ready to resume cohabitation but the husband always avoided. Thus, it is obvious that on October 26, 1991, her stand was that after the said decree, there was no cohabitation between the parties till the said date. Husband-respondent stated on oath in examination-in-chief that after the decree there was no cohabitation between the parties. He is not cross-examined on this part of his statement, thereby it can be concluded that the appellant-wife accepted the above statement of the husband-respondent as correct. The appellant has herself stated that after that decree there was a compromise, her husband took her to the matrimonial home where she stayed for 5/7 days and then she was turned out therefrom. Swaran Lata R.W.-2 has testified that in the year 1990 the appellant went to live with the husband for 3/4 days and she was again given beating and was turned out of the matrimonial home. Both these witnesses have not given the date or month when the appellant lived with the respondent. The appellant has not stated even the year in which she went to live with the husband. Further, the appellant has not even stated that she resumed cohabitation with the respondent. She has also admitted that she filed a petition under Section 125 of the Code of Criminal Procedure and also a complaint under Section 498-A I.P.C. against the husband-respondent. Both these petitions were pending. Had it been true that after the ex parte decree Exhibit P-2 dated August 25, 1990, she resumed cohabitation with her husband and started living with him her natural conduct would have been to get both these petitions dismissed, or as she has alleged that she was again given a beating and was turned out of the matrimonial home, she would have given a notice to the husband to that effect. Thus, from her conduct also her above statement becomes doubtful and unreliable. The Trial Court has not fallen into any error in disbelieving her on this point.
10. Appellant's learned Counsel relying on Darshan Kumar v. Smt. Manju Rani, (1991-2) 100 P.L.R. 178 = II (1991) DMC 414, contended that since husband's earlier divorce petition was dismissed in default, this divorce petition ought to have been dismissed by the Trial Court as being barred by res judicata. The assailment does not hold water. In Darshan Kumar's case, it is nowhere decided that if a divorce petition filed on different grounds is dismissed in default and later on if the husband filed a divorce petition under Section 13(1-A)(ii) of the Act on the basis of the decree passed against him under Section 9 of the Act, the second divorce petition is barred by res judicata.
11. Her learned Counsel also contended that the husband maltreated the appellant after the marriage, gave beating to her and turned her out of the matrimonial home, filed a divorce petition on false grounds got it dismissed deliberately when she obtained an ex parte decree under Section 9 of the Act, he declined to cohabit with her--these acts and conduct of the husband-respondent disentitle him to obtain a decree of divorce against her under Section 23(1)(a) of the Act. To support this contention, learned Counsel placed reliance on Amarjit Singh v. Darshan Kaur, (1994-2) 107 P.L.R. 96.
12. In Amarjit Singh's case (supra) it is held that if the Court is satisfied that a spouse is taking advantage of his or her own wrong or disability, he or she is disentitled to seek any relief under the Act. The facts of that case are quite distinguishable. In Dharmendra Kumar v. Usha Kumari, A.I.R. 1977 S.C. 2218, their Lordships of the Apex Court have held 'that to be a wrong within the meaning of Section 23(1)(a) 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'.
13. In Smt. Saroj Rani v. Sudarshan Kumar Chadha, A.I.R. 1984 S.C. 1562, the ground sought to be urged was that the husband wanted the wife to have a decree for judicial separation by some kind of a trap and men not to cohabit with her and thereafter obtain decree for divorce. Their Lordships of the Supreme Court held that this would be opposed to facts alleged in the defence by the wife. It was further canvassed that taking advantage of his or her own wrong in Clause (a) of Sub-section (1) of Section 23 must be construed in such a manner that would not make the Indian wives suffer at the hands of cunning and dishonest husband. Their Lordships repelled that contention also, as there was no factual application to that effect, and secondly, it required a legislation to that effect. They held that they were unable to accept the contention of the appellant's Counsel that the conduct of the husband sought to be urged against him could possibly come within the expression 'his own wrong' in Section 23(1)(a) of the Act, so as to disentitle him to a decree of divorce to which he was otherwise entitled.
14. In this case, the wife has neither alleged nor proved any such conduct of the respondent-husband after the decree dated August 25, 1990, which falls within the ambit of 'his own wrong' to disentitle him to a decree of divorce under Section 13(1)(ii) of the Act. Whether his alleged behaviour or conduct was towards the appellant before the ex parte decree Exhibit P-2 could not be taken into consideration while deciding such an objection in the petition filed under Section 13(I-A)(ii) of the Act. The said wrongful act should be after August 25, 1990.
15. No other point is pressed before me.
16. Finding the appeal meritless, it is hereby dismissed. Trial Court's judgment and decree is affirmed.