S.S. Saron, J.
1. Appellant-Rajinder Paul Singh has filed this appeal against the judgment and decree dated 1.12.1989 passed by the learned Additional District Judge, Ludhiana, whereby the petition under Section 13 of the Hindu Marriage Act (hereinafter referred to as the Act) for the grant of decree of divorce has been dismissed.
2. The appellant filed a petition under Section 13 of the Act, for dissolution of the marriage between the parties by grant of decree of divorce. The marriage between the parties was solemnized on 31.5.1982, according to Sikh rites, at village Jassowal Sudan, tehsil and district Ludhiana. After marriage, the parties lived and cohabited as husband and wife at village Pamal, tehsil and district Ludhiana. No child was born out of the wed lock. The appellant-husband filed a petition under Section 13 of the Act, for dissolution of the marriage between the parties, on the ground that the respondent had withdrawn herself from his company without any reasonable cause to harass him. It was alleged that the respondent-wife had filed a petition under Section 9 of the Act and decree for restitution of conjugal rights was passed in her favour on 16.1.1988. The respondent never had any intention to live with him as his wife. She had filed numerous court cases against him to harass him. Besides, she had made complaints to the Punjab Police Department, where the appellant is serving as a constable. The case of the appellant is that there has been no cohabitation between the parties since 25.8.1984 and therefore, he was entitled for the grant of decree of divorce in terms of Section 13(1-A)(ii) of the Act. The respondent has engaged the appellant in litigation by filing case after case against him in which she claimed interim maintenance and litigation expenses. The appellant was also compelled to incur expenses in defending the cases. A petition was also pending under Section 25 of the Act for permanent alimony filed by the respondent. On these grounds, he claims divorce.
3. The respondent wife filed her written statement to the petition, in which she admitted the factum of marriage and also that the parties cohabited as husband and wife at village Pahara. However, it is contended that the appellant has no locus stahdi to file the present petition for divorce as he is guilty of making false allegation of unchastity as was evident from the decree of restitution of conjugal rights passed in her favour and which also stands admitted by him, in the deposition of the petitioner (now appellant) as RW-1 in the petition under Section 9 of the Act. Besides, he has taken advantage of his own wrong which the law does not permit. The respondent further contends that she has been a loyal, faithful wife and she respected the appellant and his parents. She denies that she has withdrawn from the society of the appellant. Rather it is the appellant, who is guilty of deserting her without sufficient and reasonable cause. He has in fact deserted her without sufficient and reasonable cause. She has also denied the allegation that she had no intention to live with the appellant as his wife or that she has filed numerous cases to harass the appellant, who is a constable serving in the Punjab Police. It is further averred that she had to file suit restraining the appellant from re-marrying as he had made full preparation for marrying second time during the continuation of marriage with her. The respondent has always and still is ready to live with the appellant as his loyal and faithful wife, despite the fact that he had made false and baseless allegations of unchastity against her. The respondent along with her father and 2/3 persons from village Jassowal Sudan went to village Pamal, to the house of the appellant in the month of January, 1988 to enable the respondent to live there but the appellant and his parents refused to keep her. The appellant rather stated that he was not willing to keep her and that she should live with her friends, her brother-in-law and brother and have sensual pleasure. The respondent her father and the other person had come back dejected to the village. In these circumstances, it is stated that the failure of restitution of conjugal rights between the parties after the passing of the decree is not due to her fault and, therefore, the petition was liable to be dismissed.
4. The petitioner has filed replication to the written statement, in which he has denied the averments made in the written statement and reiterated those taken in his petition.
5. On the pleadings of the parties, the following issues were framed:-
1. Whether the petitioner has the locus standi to file this petition as alleged? OPP
2. Whether there has been no restitution of the conjugal rights between the parties for a period of more that one year after passing of decree dated 16.1.1988 as alleged? OPP
3. Whether the petitioner is entitled to a decree of dissolution of marriage by a decree of divorce, as alleged? OPP
4. Relief.
6. The learned trial Court after discussing the evident on record and consideration of the matter dismissed the petition of the appellant, vide his judgment and decree dated 1.12.1989, which is assailed in this appeal. However, issue No. 2 to the effect that there has been no restitution of conjugal rights between the parties after the passing of the decree for restitution of conjugal rights on 16.1.1988, was decided in favour of the appellant.
7. The learned counsel for the appellant has contended that the trial Court has committed a material irregularity and illegality in not dissolving the marriage between the parties as it was a statutory right of the appellant to claim the matrimonial relief of divorce in terms of Section 13(1-AA)(ii) of the Act, which provides for dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year upwards after the passing of the decree for restitution of conjugal rights, in a proceedings to which they were parties. It is contended that a decree for restitution of conjugal rights, has been passed in terms of Section 9 of the Act, on 16.1.1988 by the learned Additional District Judge, Ludhiana, and thereafter, till the institution of the petition on 27.1.1989, there has been no cohabitation between the parties. Therefore, the appellant was entitled to a decree for divorce notwithstanding the provisions of Section 23(1)(a) of the Act.
8. In response, the learned counsel for the respondent contends that the appellant was in fact taking advantage of his own wrongs. He had himself not compiled with the decree for restitution of conjugal rights and was using the same as ruse to get divorce.
9. I have given my thoughtful consideration to the respective contentions of the learned counsel for the parties. It is not disputed that there has been no cohabitation between the parties after the passing of the judgment and decree dated 16.1.1988. However, it is to be seen whether the mere passing of the decree would entitle the appellant to a decree for divorce and that he is not taking advantage of his own wrongs. It is to be seen as to whether the appellant has deliberately allowed the decree for restitution of conjugal rights to be passed against him so as to create a ground for seeking divorce under Section 13(l-A)(ii) of the Act. The said decree obtained by the respondent-wife is not to be used as a stepping stone by the appellant to obtain divorce. Section 23(1)(a) of the Act, provides that in any proceedings under the Act, whether defended or not, where the Court is satisfied that where any of the ground for granting relief exists and the petitioner except in certain cases indicated therein where relief is sought is not taking advantage of his own wrong or disability for the purpose of such relief then, and in such a case, but not otherwise, the Court shall decree such relief accordingly. Section 23(1)(a) of the Act, reads as under:-
'23. Decree in proceedings.- (1) In any proceedings 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 xx xx xx
(BBC) xx xx xx xx xx
(c) xx xx xx xx xx xx
(d) xx xx xx xx xx xx
(e) xx xx xx xx xx xx
then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.'
10. The scope of the above provision was considered by the Hon'ble Supreme Court in Dharmendra Kumar v. Usha Kumar, A.I.R. 1977 S.C. 2218. It was held that an order to be a 'wrong' under Section 23(1)(a) of the Act, the alleged conduct of the petitioner must be 'misconduct serious enough to justify denial of the relief and not a mere 'disinclination to agree to an offer of re-union.' which cannot be recorded as a 'wrong.' Therefore, mere disinclination to agree to an offer of union was not sufficient to grant matrimonial relief. Rather, it was to be a misconduct serious enough to justify denial of the relief to which either of the parties was otherwise entitled to. In Hirachand Srinivas Managaonkar v. Sunanda, A.I.R. 2001 Supreme Court 1285, the wife had obtained a decree for judicial separation on 6.1.1981 on the ground that the husband was living in adultery. It was ordered by the High Court of Karnataka that the husband shall pay maintenance of Rs. 100/- p.m. to the wife and Rs. 75/- to the daughter. The said order was not complied with. The husband presented a petition for dissolution of the marriage on 13.9.1988 on the ground that there had been no resumption of cohabitation as between the parties to the marriage for a period of more than one or upwards after passing of the decree for judicial separation. The wife contested a petition on the ground that the husband continued to live in the adultery even after the passing of decree for judicial separation and that he failed to maintain her and their daughter. The Hon'ble Supreme Court considered the question whether in a petition for divorce filed under Sub-section (1-A) of Section 13, it is open to the Court to refuse to pass a decree on any of the ground specified in Section 23 of the Act, insofar as any one or more of them may be applicable. It was held as follows':
'13. The contention that the right conferred by Sub-section (1-A) of Section 13 is absolute and unqualified and that this newly conferred right is not subject to provisions of Section 23 is fallacious. This argument appears to be based on the erroneous notion that to introduce consideration arising under Section 23(1) into the determination of a petition filed under Sub-section (1-A) of Section 13 is to render the amendments made by the Amending Act No. 44 of 1964 wholly meaningless,
xx xx xx xx xx
'The amendment was not introduced in order that the provisions contained in Section 23 should be abrogated and that is also not the effect of the amendment. The object of Sub-section (1-A) was merely to enlarge the right to apply for divorce and not to make it compulsive that a petition for divorce presented under Sub-section (1-A) must be allowed on a mere proof that there was no cohabitation or restitution for the requisite period. The very language of Section 23 shows that it governs every proceeding under the Act and a duty is cast on the Court to decree the relief sought only if the conditions mentioned in the sub-section are satisfied, and not otherwise. Therefore, the contention raised by the learned counsel for the appellant that the provisions of Section 23(1) are not relevant in deciding a petition filed under Sub-section (1-A) of Section 13 of the Act, cannot be accepted.'
11. It was also held that it was necessary to clear an impression regarding the position that once a cause of action for getting a decree of divorce under Section 13(1-A) of the Act arises the right to get a divorce crystallizes and the Court has to grant the relief of divorce sought by the applicant. This impression, it was held, was based on a misinterpretation of the provision in Section 13(1-A). All that is provided in the said section is that either party to a marriage may present a petition for dissolution of the marriage by a decree of divorce on the ground that there has been no resumption of cohabitation between the parties to the marriage for a period of one year or more after the passing of a decree for judicial separation in a proceedings to which they were parties or that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or more. It was held that the section i.e. Section 13(1-A) fairly read only enables either party to a marriage to file an application for dissolution of the marriage by a decree of divorce on any of the grounds stated therein. The Section does not provide that once the applicant makes an application alleging fulfillment of one of the conditions specified therein the Court has no alternative but to grant a decree of divorce, such an interpretation was held to run counter to the provisions to Section 23(1)(a) or (b) of the Act. The earlier judgment in Dharmendra Kumar's case (supra) was considered as follows:-
'...It has to be kept in mind that relationship between the spouses is a matter concerning human life. Human life does not run on dotted lines or charted course laid down by statute. It has also to be kept in mind that before granting the prayer of the petitioner to permanently snap the relationship between the parties to the marriage every attempt should be made to maintain the sanctity of the relationship which is of importance not only for the individuals or their children but also for the society, whether the relief of dissolution of the marriage by a decree of divorce is to be granted or not depends on the facts and circumstances of the case. In such a matter it will be too hazardous to lay down a general principle of universal application.
17. In this connection the decision of this Court in the case of Dharmendra Kumar v. Usha Kumar, (1977)4 S.C.C. 12:A.I.R. 1977 S.C. 2218 is very often cited. Therein this Court taking note of the factual position that the only allegation made in the written statement was that the petitioner refused to receive some of the letters written by the appellant and did not respond to her other attempts to make her live with him, held that the allegation even if true, did not amount to misconduct grave enough to disentitle the wife to the relief she has asked for. In that connection this Court observed that in order to be a wrong within the meaning of Section 23(1) 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. The decision cannot be read to be laying down a general principle that the petitioner in an application for divorce is entitled to the relief merely on establishing the existence of the ground pleaded by him or her in support of the relief : nor that the decision lays down the principle that the Court has no discretion to decline relief to the petitioner in a case where the fulfillment of the ground pleaded by him or her is established.'
12. A perusal of the above shows that the grant or relief of dissolution of the marriage on account of non resumption of cohabitation between the parties to a marriage after passing of a decree for restitution of conjugal rights or judicial separation as the case may be depends on the facts and circumstances or each case and there is no general principle that the petitioner in an application for divorce is entitled to the relief merely on establishing the acceptance on the grounds pleaded by him. The position, therefore, is that in a petition filed for seeking divorce under Section 13(1-A) of the Act on the ground that there has been no resumption of cohabitation between the parties after the passing of the decree for judicial separation or there has been no restitution of conjugal rights as between the parties, as the case may be, the provisions of Section 23(1)(a) of the Act would apply and it is to be seen that the petitioner claiming matrimonial relief is not in any way taking advantage of his own wrong or disability for the purposes of such relief.
13. Applying the said test to the case in hand the evidence and materials on record may be considered. The appellant, while appearing as RW-1 has reiterated his assertions made in the petition. Besides, he has denied that in his earlier statement Ex.R1, which was recorded in the petition filed by the respondent for grant of decree of restitution of conjugal rights, he had made false allegations against his wife which are to the effect that she was character less and that she has illicit relations with the younger brother of her sister's husband. He also denied that he made false allegations against the respondent that she had illicit relations with the above said person prior to 1984 as he had seen her and the above persons going in street at Malerkotla. He, however, stated that it was correct that he had given a statement on oath as RW-1 in the petition under Section 9 of the Act filed by Amarjit Kaur (respondent) against him. However, he did not remember whether in that statement i.e. Ex.R1 he had stated that at present he was not prepared to fetch the petitioner (now respondent) as his wife in view of her conduct and that she was character less and had illicit relations with the younger brother of her sister's husband. He was confronted with the relevant part of the statement which he states that he did not remember whether he made such a statement in the Court. Apart from, the appellant, his father Gurdev Singh was examined as PW-2, who merely stated that after the passing of the decree for restitution of conjugal rights, there has been no cohabitation or resumption between the parties and that respondent never had any bona fide intention to live with the appellant as a wife.
14. The respondent, apart from appearing as her own witness as RW-1, produced Bahadur Singh son of Dayal Singh as RW-2 and her father Sarwan Singh as RW-3. The respondent in her deposition has primarily made reference to the ill-treatment meted out to her. Besides, she has procured on record the statement Ex R-1 in which the appellant on 16.7.1987 made a statement, in a suit filed by the respondent restraining the appellant from remarrying with defendant No. 2 in the said suit or any other lady during the subsistence of his marriage with the respondent, who is his wife. The appellant in the said suit gave a statement to the effect that so long as he is married with the respondent he will not re-marry. On the said statement of the appellant the suit was decided. The respondent also stated that the appellant had made false allegations against her character. Besides, he had not filed any appeal against the judgment and decree dated 16.1.1988, whereby her petition for restitution of conjugal rights was decreed. The other two witnesses make a mention of taking a panchayat to the village of the appellant and despite their best efforts, the appellant did not rehabilitate the respondent.
15. The evidence which has come on record shows that the appellant has indeed made serious allegations against the character of the respondent. Besides, he has placed nothing on record to show that he was willing to comply with the decree for restitution of conjugal rights or had taken any steps to resume cohabitation with his wife after the passing of decree for restitution of conjnugal rights on 16.1.1988. He even did not file any appeal against the said decree which in turn means that he accepted the same. Therefore, the only inference than can be drawn is that the appellant is using the said decree as a stepping stone to get divorce against his wife. This is more evident from the fact that the decree for restitution of conjugal rights was passed on 16.1.1988 and he filed the present petition for divorce on 27.1.989 i.e., soon after the expiry of one year of the passing of the decree.
16. Keeping in view the above said facts and circumstances, it is evident that the appellant is a police constable and he had earlier also or as the wife apprehended made attempts to re-marry Which was prevented on a suit being filed by her. Besides, from the materials on record the misconduct on the part of the appellant is serious enough to justify the denial of matrimonial relief of divorce to him. He has knowingly in his evidence stated that he was willing to keep his wife with him whereas he made unfounded allegations of the respondent living an unchaste life and of her having illicit relationship with the younger brother of her sister's husband. However, this statement the appellant denies while appearing as his own witness on 11.10.1989. He was confronted with the statement and he gives no sound reasons for resiling from the earlier statement which evidently means that he has made unfounded allegations against his wife. Therefore, the circumstances constitute a 'wrong' within the meaning of Section 23(1)(a) of the Act and would dis-entitle the appellant to the grant of decree for divorce on the ground of there being no resumption or cohabitation as between the parties for a period of one year in terms of Section 13(1-A)(ii) of the Act.
17. Resultantly, the appeal is without any merit and is dismissed.