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1998 Supreme(AP) 883
Andhra Pradesh High Court
Judges : N.Y.HANUMANTHAPPA, R.BAYAPU REDDY
Nalla Sarada - Appellant
Versus
Nalla Babaji - Respondent
Decided On : 12-07-98
Headnote:
Hindu Marriage Act - Section 9, 13 (A) (ii) , 23 (l) (a) ,13 (1 A) (ii) r/w,13 (la) (ii) - Relief of restitution of conjugal rights - Entitled for a decree of divorce - Seeking restitution of conjugal rights ana said petition was not opposed by husband and as such it was allowed granting relief of restitution of conjugal rights - Subsequently husband filed under Section 13 (1a) of act, contending that inspite of decree for restitution of conjugal rights and inspite of his efforts to secure company of his wife no such restitution of conjugal rights has taken place even after prescribed period of one year as his wife is not inclined to come and stay with him thereby honouring decree for restitution of conjugal rights and as such he is entitled for a decree of divorce as contemplated under Section 13 of Act - Wife opposed said application solely on ground that she was willing to go and stay with her husband even subsequent to passing of decree for restitution of conjugal rights that he alone is at fault and is not willing to take her back thereby honouring decree for restitution of conjugal rights and that inasmuch as fault lies with husband he is not entitled for decree of divorce - IT is now admitted that decree for restitution of conjugal rights was granted in which was filed by appellant/wife against her husband who is present respondent and that there was however no such restitution of conjugal rights between parties for more than one year subsequent to passing of such decree - Whether there are any valid reasons to interfere with orders of lower Court granting decree of divorce under Section 13 (la) of Hindu Marriage Act? Whether husband can be said to be "taking advantage of his own wrong" for purpose of seeking such relief of divorce in order to refuse such relief as contemplated under section 23 (l) (a) of t Act - Held, It would not be very reasonable to think that relief which is available to spouse against whom a decree for restitution has been passed should be denied to the one who does not insist on compliance with decree passed in his or her favour - In order to be a wrong within meaning of Section 23 (l) (a) 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 relief to which husband or wife is otherwise entitled - It is clear from evidence which is discussed in detail by lower Court that wife who has filed her counter did not even make any allegation that subsequent to passing of decree for restitution of conjugal rights her husband is guilty of any such misconduct serious enough to justify denial of relief of divorce in view of provisions of Section 23 (l) (a) of Act - Even during her evidence as R. W. 1 she did not even make any allegation that her husband is guilty of any misconduct as contemplated under section 23 (l) (a) of Act so as to disentitle him to seek relief of divorce under Section 13 (A) (ii) of Act - On other hand her only contention is that while she was willing to go and stay with him he was disinclined to receive her thereby not complying with decree for restitution of conjugal rights - But such alleged unwillingness on part of husband to comply with decree for restitution of conjugal right even if true cannot be said to be a ground for refusing relief of divorce under Section 13 (1 A) (ii) r/w Section 23 (l) (a) of Act - Appeal Dismissed
( 1 ) THIS Civil Miscellaneous Appeal is filed by the wife, who is the respondent in O. P. 380/89 on the file of the 11 Additional Subordinate Judge, visakhapatnam questioning the impugned orders dated 18-8-1993 by which the petition filed by her husband for divorce was allowed.
( 2 ) THE appellant who is the wife of the respondent herein, had previously filed O. P. 122/82 on the file of the I Additional Subordinate Judge under Section 9 of the Hindu Marriage Act (for short "the Act") seeking restitution of conjugal rights ana the said petition was not opposed by the husband and as such, it was allowed on 30-12-1982 granting the relief of restitution of conjugal rights. Subsequently, the husband filed O. P. 380/89 under Section 13 (1a) (ii) of the act, contending that inspite of the decree for restitution of conjugal rights and inspite of his efforts to secure the company of his wife, no such restitution of conjugal rights has taken place even after the prescribed period of one year as his wife is not inclined to come and stay with him thereby honouring the decree for restitution of conjugal rights and as such he is entitled for a decree of divorce as contemplated under Section 13 (la) (ii) of the Act. The wife opposed the said application solely on the ground that she was willing to go and stay with her husband even subsequent to the passing of the decree for restitution of conjugal rights: that he alone is at fault and is not willing to take her back thereby honouring the decree for restitution of conjugal rights and that inasmuch as the fault lies with the husband, he is not entitled for the decree of divorce. On the basis of the evidence adduced before him, the learned Subordinate Judge came to the conclusion that inspite of the decree passed for restitution of conjugal rights. The wife failed to honour such decree and go and stay with her husband: that in view of the circumstances as proved from the evidence, it cannot be said that the husband is taking advantage of his own wrong as contemplated in section 23 (i) (a) of the Act for seeking the relief of divorce and as such he is entitled for the decree of divorce under the provisions of Section 13 (la) (ii) of the Act. Questioning such orders, the present appeal is filed by the wife.
( 3 ) THE point that arises for consideration is whether there are any valid reasons to interfere with the orders of the lower Court granting the decree of divorce under Section 13 (la) (ii) of the Hindu Marriage Act?
( 4 ) IT is now admitted that the decree for restitution of conjugal rights was granted on 30-12-1982 in O. P. 122/82 which was filed by the appellant/wife against her husband, who is the present respondent and that there was however no such restitution of conjugal rights between the parties for more than one year subsequent to the passing of such decree. The husband therefore filed the present O. P. 380/89 seeking divorce under Section 13 (1a) (ii) of the Act which enables either party to a marriage to seek for a decree of divorce when there is no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after passing of a decree for restitution of conjugal rights a proceeding to which both of them are parties. It is also now not disputed that even though the decree for restitution of conjugal rights was passed in a petition filed by the wife, the husband also will be entitled to seek a decree for divorce under Section 13 (1a) (ii) of the Act on the ground that there is no such restitution of conjugal rights between the parties as per the decree. The contention of the wife who is the appellant however is that she is not at fault and that her husband alone is not willing to take her back and honour the decree for restitution of conjugal rights and that, therefore he is not entitled to seek the decree for divorce by taking advantage of his own fault as contemplated under section 23 (1) (a) of the Act. But such con
