Under Section 13(1A)(ii) of the Hindu Marriage Act, 1955, the burden of proving a 'wrong' under Section 23(1)(a) to deny a divorce is on the party alleging it. A mere disinclination to agree to reunion does not constitute a 'wrong'.

JUDGMENT :

Ravi Nath Tilhari, J.

Heard Sri K. A. Narasimham, learned counsel for the appellant and Sri Anup Koushik Karavadi, learned counsel for the respondent.

2. The appellant is the husband and the respondent is the wife.

3. This appeal arises out of the judgment and decree dated 06.08.2004 in HMOP.No.64 of 2002 on the file of the Judge, Family Court-cum-V Additional District Judge, Tirupati, by which the HMOP filed by the appellant/husband seeking divorce under Section 13 (1A) (ii) of the Hindu Marriage Act, 1955 was dismissed.

4. The appellant and the respondent were married on 05.02.1992 as per the Hindu rites and customs. They have one male child. Due to some differences and disputes between them, initially the divorce OP.No.113 of 1999 was filed by the husband, whereas the wife filed OP.No.114 of 1999 for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. The wife had already filed maintenance case MC No.35 of 1995 against the husband, which was allowed awarding the maintenance to the wife and also to the son. O.P.Nos.113 and 114 of 1999 were decided by the common Order dated 12.07.2001, the petition for divorce was dismissed and the petition for restitution of conjugal rights was allowed. The contention of the husband is that the wife failed to join the husband and there was no restitution of conjugal rights pursuant to the decree for restitution of conjugal rights in O.P.No.114 of 1999 for a period of one year and hence he filed HMOP No.64 of 2002 seeking divorce under Section 13 (1A) (ii) of the Hindu Marriage Act.

5. The wife filed the counter. The previous proceedings were not disputed. However, it was denied that she failed to join the husband. She submitted that there was no refusal on her part. She repeatedly went to the house of the husband, but he did not allow the wife inside the house. So, there was no cause of action to the husband and he was not entitled for decree of divorce on that ground under Section 13 (1A) (ii) of the Act. She also submitted that she was still ready to join the husband at any time.

6. During the enquiry, the husband examined himself as PW 1 (T. Ravi) and marked Ex.A1, the certified copy of the common order in O.P.Nos.113/99 and 114/99 on the file of Family Court, Tirupati. The wife (T. Lakshmi Devi) examined herself as RW 1, and got examined on her behalf RW 2-Rajamma and RW 3-D.Chandramma. Any document was not marked on her behalf.

7. The learned Judge, Family Court, framed the following points for consideration:

“1) Whether the respondent failed to join petitioner and failed to comply orders of restitution of conjugal rights passed in O.P.114/99 on the file of this Court?

2) Whether the petitioner is entitled for grant of divorce decree as prayed?”

8. The learned Judge, Family Court recorded the finding that the husband was not entitled for grant of divorce decree. The view taken was that the decree of divorce cannot automatically be granted in the absence of bona fides on the part of the husband to comply with the decree of restitution of conjugal rights passed previously. The learned trial Court also recorded that from the evidence of RWs 2 and 3, it was clear that the wife/respondent made attempts to join the petitioner/husband, but the petitioner/husband refused to allow her to join the matrimonial home. The oral evidence of PW 1 (husband) was not accepted, observing that his evidence was of the interested person and there was no independent evidence to corroborate that the wife did not comply with the decree of restitution of conjugal rights and also that the husband did not refuse the wife to join.

9. HMOP.No.64 of 2002 was thus dismissed on 06.08.2004.

10. Learned counsel for the appellant submitted that the decree for restitution of conjugal rights was not complied by the wife. She failed to join and consequently, on expiry of the statutory period of one year, the husband had the right to file petition for divorce on such ground and there was no justification fo