( 1 ) A question of considerable importance but of some difficulty arises in this appeal whether the mere fact of non compliance by a husband of the decree for restitution of conjugal rights obtained by a wife would per se amount to taking advantage of his own wrong or disability so as to disable him from claiming the relief of divorce after lapse of two years of the said decree. The question arises in the following circumstances:

( 2 ) THE marriage of the petitioner husband with the respondent was solemnised on May 29 1967 at Ahmedabad. A son was born of this wedlock on March 6 1968 the respondent Wife filed Petition being Hindu Marriage Petition No. 66 of 1972 in the City Civil Court at Ahmedabad for a decree of restitution of conjugal rights under sec. 9 of the Hindu Marriage Act 1955 The Court granted the decree as prayed for by its order of September 24 1973 It is common ground that this decree was not complied with or satisfied by the petitioner husband who immediately thereafter left for United States and returned only after the expiry of two years. immediately after his return he filed an application for a de cree of divorce under sec. 13 (1a) (ii) of the aforesaid Act.

( 3 ) THIS petition was resisted by the respondent wife contending inter alia that the Court should not exercise its discretion by granting a decree of divorce as prayed for since the petitioner husband was trying to take advantage of his own wrong by intentionally avoiding the decree for restitution of conjugal rights passed in her favour.

( 4 ) ON the aforesaid pleadings The learned City Civil Judge raised necessary issues. On hearing the evidence of the parties the learned Judge after referring the relevant case law on the point and on appreciation of the evidence found that the petitioner husband had no intention after the decree of restitution of conjugal rights was passed to cohabit with the respondent and within a period of less than a month from the date of the decree the petitioner left for the United States and returned only five days before the present petition. No correspondence ensured between the parties while the petitioner was in States nor he furnished his address in States to the respondent wife. In that state of evidence the learned Judge was of the opinion that this conduct on the part of the petitioner husband amounted to taking advantage of the wrong committed by him and therefore the Court should not exercise its discretion as the case squarely fell within sec. 13 (1a) (ii ). The learned Judge therefore by his order of July 26 1976 dismissed the petition of the husband It is this judgment and decree which has been challenged in this First Appeal.

( 5 ) THE crux of the problem is whether the non satisfaction by a husband of the decree for restitution of conjugal rights obtained by a wife would per se amount to taking advantage of his own wrong which will disentitle him to a decree for divorce under sec 23. It is common ground that the petitioner husband applied for a decree of divorce because there had been no restitution of conjugal rights after passing of the decree in favour of the respondent wife herein on September 24 1973 This petition for divorce has been made under sec. 13 (1a) (ii) of the Hindu Marriage Act 1955 The said clause has been brought on the statute book by Hindu Marriage (Amendment) Act of 1964 which repealed clauses (viii) and (ix) of sub sec. (1) of sec. 13. The law as it stood before the amendment in 1964 entitled only a party aggrieved by non compliance of a decree for judicial separation or a decree for restitution of conjugal rights. After their repeal sub sec. (1a) has been brought on the statute book which now permits either party to marriage whether solemnized before or after the commencement of this Act to present a petition for dissolution of marriage by a decree of divorce on the ground of non resu mption of cohabitation as between the parties to the marriage for a period of two years o