Judgment

A. C. GUPTA, J. - On her application made under Section 9 of the Hindu Marriage Act, 1955, the respondent was granted a decree for restitution of conjugal rights by the Additional Senior Sub-Judge, Delhi, on August 27, 1973. A little over two years after that decree was passed, on October 28, 1975 she presented a petition under Sec. 13 (1A) (ii) of the Act in the Court of the Additional District Judge, Delhi, for the dissolution of the marriage by a decree of divorce. Section 13 (1A) (ii) as it stood at the material time reads:

"Either 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) x x x

(ii) that there has been no 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 restitution of conjugal rights in a proceeding to which they were parties."

The provision was amended in 1976 reducing the period of two years to one year, but this amendment is not relevant to the present controversy. In that petition under Section 13 (1A) (ii) she - we shall hereinafter refer to her as the petitioner - stated that there had been no restitution of conjugal rights between the parties to the marriage after the passing of the decree for restitution of conjugal rights and that there was no other legal ground why the relief prayed for should not be granted. Her husband, the appellant before us, in his written statement admitted that there had been no restitution of conjugal rights between the parties after the passing of the decree in the earlier proceeding, but stated that he made attempts "to comply with the decree (for restitution of conjugal rights) by writing several registered letters to the petitioner" and "otherwise" inviting her to live with him. He complained that the petitioner "refused to receive some of the letters and never replied to those which she received", and according to him the petitioner "has herself prevented the restitution of conjugal rights she prayed for and now seeks to make a capital out of her own wrong." The objection taken in the written statement is apparently based on Section 23 (1) (a) of the Act. The relevant part of S. 23 (1) (a) states :

"23. (1) Decree in proceedings. In any proceeding under the Act, whether defended or not, if the court is satisfied that-

(a) any of the grounds for granting relief exists and the petitioner....is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief...."

2. On the pleadings the following issue was raised as issue No. 1 :

"Whether the petitioner is not in any way taking advantage of her own wrong for the reasons given in the written statement?"

Subsequently the following additional issue was also framed:

"Whether the objection covered by issue No. 1 is open to be respondent under the law ?"

This additional issue was heard as a preliminary issue. The Additional District Judge, Delhi, who heard the matter relying on a Full Bench decision of the Delhi High Court reported in ILR (1971) 1 Delhi 6, (Ram Kali v. Gopal Dass), and a later decision of a learned single Judge of that court reported in ILR (1976) 1 Delhi 725 (Gajna Devi v. Purshotam Giri) held that no such circumstance has been alleged in the instant case from which it could be said that the petitioner was trying to take advantage of her own wrong and, therefore, the objection covered by issue No. 1 was not available to the respondent. The Additional District Judge accordingly allowed the petition and granted the petitioner a decree of divorce as prayed for. An appeal from this decision taken by the husband was summarily dismissed by the Delhi High Court. In this present appeal the husband questions the validity of the decree of divorce granted in favour of the petitioenr.

3. Sec. 13 (1A) (ii) of the Hindu Marriage Act, 1955 allows either party to a marri