Willful non-compliance of the decree for restitution of conjugal rights constitutes 'wrong' under Section 23(1)(a) of the Hindu Marriage Act, and does not lead to automatic dissolution of marriage under Section 13(1A)(ii).

JUDGMENT :

K.S. MUDAGAL, J.

1. Challenging the judgment and decree for dissolution of marriage under Section 13(1A)(ii) of the Hindu Marriage Act, 1955 (‘the Act’ for short), the respondent in M.C. No. 53/2021 on the file of I Additional Principal Judge, Family Court, Mysuru has preferred this appeal.

2. The appellant was the respondent and the respondent was the petitioner in M.C. No. 53/2021 before the trial Court. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

3. Brief facts of the case:

(i) The marriage of the petitioner and the respondent was solemnized on 24.02.2011 at Chanakya Kalyana Mantapa, Vishveshwaranagar, Sterling Theatre Road, Mysuru. The parties are Hindus and governed by the Act. The parties had troubled marriage. The petitioner filed M.C. No. 1661/2012 before the Family Court, Bangalore under Section 13(1)(ia) of the Act seeking decree for divorce. On transfer to the Family Court, Mysuru, that was renumbered as M.C. No. 35/2013. The respondent filed M.C. No. 196/2012 against the petitioner seeking decree for restitution of conjugal rights.

(ii) The Additional Principal Judge, Family Court, Mysuru, on consolidating both the petitions, recorded the evidence and on hearing the parties, by considered judgment as per Ex.R5 dated 09.02.2016 dismissed M.C. No. 35/2013 holding that the allegation of cruelty was not proved. The said court allowed M.C. No. 196/2012 holding that the petitioner husband has deserted the wife without reasonable excuse. The decree in M.C. No. 196/2012 directed the husband to take back the wife/ respondent to the matrimonial home within two months from the date of the order.

(iii) The husband/petitioner challenged the said judgment before this Court in M.F.A. No. 1905/2016 connected with M.F.A. No. 1906/2016 (FC). This Court by judgment Ex.P2 dated 03.11.2020 on hearing the parties disposed of the appeals reserving liberty to the petitioner to file the petition under Section 13(1A)(ii) of the Act seeking dissolution of his marriage, if there is no resumption of cohabitation. It was further observed that, if the petitioner is unsuccessful in the petition under Section 13(1A)(ii) of the Act, liberty is reserved to him to revive the appeals.

(iv) Subsequent to such judgment, the petitioner filed M.C. No. 53/2021 before I Additional Principal Judge, Family Court, Mysuru for divorce under Section 13(1A)(ii) of the Act claiming that after the decree for restitution of conjugal rights in M.C. No. 196/2012, there was no resumption of cohabitation and the marriage is irretrievably broken down.

(v) The respondent contested the petition claiming that after the decree for restitution of conjugal rights, she along with her relatives went to the house of the petitioner for resumption of matrimonial cohabitation, but herself and her relatives were thrown out after abuse. She further alleged that thereafter the petitioner joined male PG to make cohabitation impossible. Therefore, he himself is guilty of non-resumption of cohabitation and he cannot take advantage of his own wrong.

4. In support of the case of the petitioner, he got himself examined as PW-1 and got marked Exs.P1 to P6. The respondent was examined as RW-1 and on her behalf, Exs.R1 to R5 were marked.

5. The trial Court on hearing the parties by the impugned judgment and decree allowed the petition on the ground that, if once there is no resumption within one year after the decree for restitution of conjugal rights either of the parties can seek decree for dissolution of marriage. The trial Court held that mere disinclination of the party to resume the marital life does not amount to wrong within the meaning of Section 23(1)(a) of the Act. The respondent has preferred the above appeal challenging the said decree.

6. In this appeal, since there is interim stay, I.A. No. 2/2022 is filed by the petitioner for vacating interim stay. I.A. No. 2/2023 is filed under Order XLI Rule 27 read wit