JUDGMENT - PANDYA N.J., J.:---Right from the beginning, it seems that it was a ill-fated marriage. It took place on 27th January, 1993 and after lapse of little more than one year, the husband filed a petition under section 13(1)(ia) of the Hindu Marriage Act, 1955 (for short 'the Act') seeking divorce. The wife in a counter claim sought restitution of conjugal rights. Her request came to be granted as per order dated 21st March, 1995 passed by the Family Court No. 4, Pune, in a Petition No. 353 of 1994 filed by the husband. As the restitution of conjugal rights was granted, obviously, the petition of the husband, No. 353 of 1994 seeking divorce came to be rejected.

2. The husband filed another Writ Petition No. 233 of 1996 under section 13(1-A)(ii) of the said Act because the decree of restitution of conjugal rights was not complied with.

3. As expected, in the trial Court, the other side raised an objection that after the decree of restitution of conjugal rights was passed, it was the husband who had not respondent to it. Several efforts were made by relatives of the wife, notices were served on her behalf to the husband and even execution application was filed by her but the husband did not comply with the mandate of the decree. Entertaining the petition for divorce on the ground that no cohabitation is resumed after the decree for restitution of conjugal rights was passed within the time limit stated in the aforesaid section, divorce should not be granted because it would amount to that the husband is taking an advantage of his own wrong. For this purpose, section 23 of the Hindu Marriage Act would be relevant. Referring to that very section, however, the learned Advocate for the appellant/husband has urged that the trial Court was wrong in dismissing the petition because there are two Supreme Court judgments which clearly say that non-obedience of a decree for restitution of conjugal rights will not amount to a wrong, as contemplated under section 23 of the said Act.

4. We are inclined to accept this submission. The decree having been passed on the basis of the material produced neither of the parties, more particularly the judgment debtor of the decree not obeying the decree by borrowing the phrases of the Code of Civil Procedure, legal consequences that are to follow will certainly follow irrespective of the fact as to who is responsible in not obeying the decree.

5. The first of the two judgments of the Supreme Court is A.I.R. 1977 S.C. 2218, (Dharmendra Kumar v. Usha Kumar)1. In that case, decree was also passed in favour of the wife for restitution of conjugal rights. She thereafter applied for dissolution of marriage under the aforesaid section 13(1-A)(ii) and all attempts on the part of the husband to make the wife to comply with the decree had failed and, therefore, the husband urged that the wife should not be allowed to take advantage of her own wrong.

6. In para 3 of the said judgment. Their Lordships have discussed the provision of section 23(1)(a) and have held in categorical terms that the expression "wrong" used thereunder should be a conduct which would something more than that a mere disinclination to agree to offer of reunion. It must be a misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled.

7. Elaborating the judgment further, one can visualise a situation where the party who is bound to comply with the decree does make all attempts but the other side when makes it impossible then one might look into it. However, in the instant case, all that the husband has done is not to submit to a decree. There is no other allegation against him.

8. The second decision of the Supreme Court goes a little further. Repeating what has been stated earlier in para 17 of the judgment, reported in (A.I.R. 1984 S.C. 1562)2, Their Lordships have taken into consideration the subsequent factual situation also viz. the marriage has broken down and the parties can no longer li

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