Honble KOKJE, J.–The appellant Bal Kishan was married to respondent Urmila Sharma on 23.2.85. They lived together as husband and wife for about four months and after 19.6.85, they have not lived together. The appellant had filed a petition under Section 12 of the Hindu Marriage Act, 1955 (in short `the Act) for declaration of the marriage to be a nullity which was decided against him on 12.12.1986. The appellant filed an appeal against this decision in the High Court and the appeal was also rejected on 13.12.88. In the meanwhile, the respondent wife had filed an application under Section 9 of the Act for restitution of conjugal rights and a decree for restitution of conjugal rights was passed in her favour on 12.12.1986. The appellant, thereafter, filed a petition under Section 13 of the Act for a decree of divorce on 22.3.90 on the ground of cruelty, desertion and non-resumption of co-habitation for a period of more than one year after the passing of the decree for restitution of conjugal rights on 12.12.86.

(2). Respondent denied the allegations made relating to the grounds of cruelty, desertion and in answer to the ground relating to non-resumption of cohabitation after the passing of the decree of restitution of conjugal rights, contended that the appellant was taking advantage of his own wrong as he did not comply with the decree for resti- tution of conjugal rights and has filed a petition taking advantage of the same decree.

(3). The Family Court, framed issues on the grounds of cruelty, desertion and non restitution of conjugal rights between the parties for the period of one year or upward after the passing of decree for restitution of conjugal rights. Upon taking evidence and hearing parties, the Family Court held that the grounds of cruelty and desperation were not proved and on the ground of non- restitution of conjugal rights for more than one year after the passing of the decree of restitution of conjugal rights, the Family Court held that the appellant was not entitled to the relief as he was taking advantage of his own wrong. The petition was therefore, rejected. This is an appeal against that judgment and decree.

(4). Learned counsel for the appellant submitted that the judgment and decree passed by the Family Court were against law and facts on record. The main ground, on which the arguments were advanced, was decision on Issue No.3 relating to non-restitution of conjugal rights a period of more than one year after passing of the decree of restitution of conjugal rights. Learned counsel for the appellant submitted that mere non-compliance with the decree for restitution of conjugal rights would not amount to taking advantage of ones own wrong because according to the learned counsel, in the first place, non compliance with the decree for restitution of conjugal rights cannot be said to be a wrong at all.

(5). Learned counsel for the respondent supported the impugned judgment and decree and submitted that firstly, a party against whom decree for restitution of conjugal rights was passed cannot file a petition for divorce on the ground that the decree has not been complied with by him. According to the learned counsel, a person against whom the decree for restitution of conjugal rights is passed, would be clearly taking advantage of his own wrong if he bases his objection on the non compliance by him of decree of restitution of conjugal rights passed against himself. Secondly, learned counsel submitted that even if such a petition was maintainable and the ground was available to such a petitioner, in this case, even on the facts circumstances available, it could be said that the petitioner-appellant was taking undue advantage of a situation created by himself. If he had complied with the decree of restitution of conjugal rights, there would have been no occasion for filing a petition for divorce on the ground that decree had not been complied with.

(6). Let me first deal with the grounds of cruelty and desertion wh

Click Here to Read the rest of this document