The conduct of a spouse preventing restitution of conjugal rights, amounting to a positive wrong under Section 23(1)(a) of the Hindu Marriage Act, disentitles the spouse from obtaining a decree of divorce under Section 13(1A).

S.C. Gupte, J.

1. The appeal impugns a Judgment and decree passed by the Family Court at Bandra, Mumbai dismissing the Appellant-husband's petition for divorce under Section 13(1A) of the Hindu Marriage Act, 1955 (“Act”).

2. The Appellant and Respondent were married on 22 April 1996. A baby girl was born to them in the following year. Since 8 April 1997 the couple started living separately. In 1998, the Respondent filed a petition for restitution of conjugal rights before the Family Court. On 3 October 2002, the petition was decreed. The parties did not cohabit even thereafter. On or about 22 September 2003, an execution application was filed by the Respondent. On 23 November 2003, during the pendency of that execution application, the Appellant filed the present petition for divorce under Section 13(1A) of the Act. The petition was dismissed by the Family Court on 23 August 2006. This appeal challenges that dismissal order.

3. Admittedly during the period of one year of the decree of restitution of conjugal rights, there was no cohabitation between the parties. The only question before the Family Court was whether such non-restitution was on account of any fault of the Appellant. The learned Judge of the Family Court, after a full-fledged trial and upon consideration of evidence led by the parties therein, held that the Appellant prevented the Petitioner from fulfilling the decree for restitution of conjugal rights and as a spouse at fault, could not claim a decree for divorce on the ground of non-restitution for the statutory period after the decree of restitution.

4. The learned Counsel for the Appellant contends that the learned trial judge has arrived at a finding of fault of the Appellant and consequent disentitlement of the Appellant from obtaining a decree of divorce, under Section 23 of the Act, without framing such an issue; that the pleadings and evidence on record does not make out any wrong on the part of the Appellant within the meaning of Section 23; that mere refusal to cohabitate, on the part of the Appellant, assuming there was any, does not amount to a wrong within the meaning of Section 23; and that the spouses have as a matter of fact not cohabited since 1997 and there is an irretrievable breakdown of marriage. The learned Counsel submits that the impugned order deserves to be set aside and decree granted or at any rate the matter may be remanded to the trial court for a fresh hearing on the issue of wrong under Section 23. The learned Counsel relies on the judgments of the Supreme court in the cases of DharmendraKumar vs. Usha Kumar (AIR 1977 SC 2218), and SatishSitole vs. Smt.Ganga (2008 DGLS(Soft.) 816), of our court in the cases of VatsalaNiranjan Gulwade vs. Niranjan Ramchandra Gulwade (1981 Mh.L.J. 917) and Naveen Kohlivs. Neelu Kohli (2006 (4) Mh.L.J. 242), and of Punjab and Haryana High Court in AmarjitKaur @ Karamjit Kaur vs. Jagsir Singh (I (1997) DMC 88) and GurmeetKaur vs. Harbans Singh (AIR 1981 PUNJAB AND HARYANA 161), respectively.

5. The learned Counsel for the Respondent submits that both parties led evidence on the circumstances that led to non-restitution during the statutory period; that the evidence on record clearly shows that restitution could not be achieved due to the Appellant driving her away and refusing to allow her to cohabit; that the trial court found so; and that this conduct on the part of the Appellant amounts to a wrong within the meaning of Section 23(1)(a) of the Act. The learned Counsel relies on several judgments and in particular, SarojRani vs. Sudarshan Kumar Chadha (1984 DGLS(Soft.) 195), T. Srinivasan vs. T. Varalakshmi (1998 DGLS(Soft.) 95), and Smt. Gopi Bai vs. Govind Ram (2007(2) All India Hindu Law Reporter 572), in support of his contentions.

6. The Respondent's case before the trial court was that she made several honest attempts to join the matrimonial home after the decree of restitution, but the Appellant foiled all these attempts and did not al