A spouse can file an application for divorce under Section 13(1A) of the Hindu Marriage Act despite a decree for restitution of conjugal rights, and the court cannot refuse relief under Section 13(1A) on the ground of non-compliance of the decree for restitution of conjugal rights.

1. Briefly, the facts are that Mohan Lal filed an application for restitution of conjugal rights on Sept. 12, 1973 against his wife Smt. Santosh Kumari, under S.9 of the Hindu Marriage Act hereinafter referred to as the Act). The latter contested it on the ground of cruelty. It was dismissed by the trial Court. On appeal, the order of the trial Court was reversed on Sept. 11, 1978 and a decree for restitution of conjugal rights was granted in favour of the husband. The wife filed an execution application on Aug. 16, 1979 stating that she was prepared to go to the husband but he was not accepting her. The husband in pursuance of a notice filed objections wherein he stated that he had already filed an application for divorce under S.13 of the Act on Sept. 14, 1979 and, therefore, he was not prepared to take her with him. The learned Executing Court dismissed the execution application observing that its purpose had been fulfilled. Smt. Santosh Kumari has come up in revision against that order to this Court.

2. It is contended by the learned counsel for the petitioner that after the passing of the decree for restitution of conjugal rights in favour of the husband, it is not only the husband who can execute it but it can be executed by the wife as well. He argues that in such cases, either of the parties to the lis becomes decree-holder after passing of the decree and can request the Court for recording satisfaction thereof. To buttress his argument, he made reference to M.P. Shreevastava V/s. Mrs. Veena, AIR 1965 Punj 54, and M.P. Shreevastava V/s. Mrs. Veena, AIR 1966 Pun 506. According to him the Court could not dismiss the application for execution of the petitioners.

3. On the other hand, the learned counsel for the respondent has argued that in view of the amendments having been made in the Act, after passing of a decree for restitution of conjugal rights in favour of a spouse, either of the spouses can make an application for divorce, if there has been no restitution of conjugal rights between the parties for a period of one year or upwards after the decree. He argues that a decree for restitution of conjugal rights cannot be executed as a decree for recovery of money or a decree for possession. According to the counsel, there is no provision in the Civil P.C. by which the custody of the spouse can be given to the other spouse. He further argues that in the aforesaid circumstances, the Executing Court rightly dismissed the application of the petitioner and refused to record satisfaction of the decree.

4. I have heard the learned counsel for the parties at a considerable length. In order to determine the question it will be proper to notice Order 21, Rule 32 of the Civil P.C. which provides for execution of decree for restitution of conjugal rights and S.13 of the Act before and after amendments which are as follows :-

"O.XXI, R.32. (1) Where the party against whom a decree for specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.

(2) .......

(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for six months if the judgement-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgement-debtor on his application.

(4) Where the judgement-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or