There is no need for the husband who had obtained then decree for restitution of conjugal rights against wife to compel the wife to join matrimonial home by filing any execution petition— To hold him as a wrong doer in terms of Section 23(1)(a) of the Hindu Marriage Act, 1955 it should be proved to the satisfaction of Court that wife could not resume cohabitation because of some hurdles put up by the husband.

ORDER

S. Nagamuthu, J.— The appellant is the wife of the respondent. They are Hindus. The marriage between them was solemnized on 14.02.2001. After the marriage, there arose dispute between them. The appellant allegedly deserted the respondent and started living separately. On these allegations, the respondent filed H.M.O.P.No.24 of 2004 on the file of the learned Subordinate Judge, Udhagamandalam, seeking restitution of conjugal rights. Accordingly, the learned Subordinate Judge, passed a decree for restitution of conjugal rights on 30.12.2004. Challenging the same, the appellant filed an appeal in C.M.A.No.12 of 2005 before the learned District Judge, The Nilgiris District at Udhagamandalam. After having considered the said appeal and after having heard the parties, the learned District Judge, by judgment and decree dated 24.11.2005, dismissed the said appeal thereby confirming the decree for restitution of conjugal rights granted by the trial court. Thus, the said decree and judgment of the trial court became final on 24.11.2005.

2. After the passing of the said decree, the appellant did not resume cohabitation with the respondent in obedience of the said decree. As per Section 13 (1A) (ii) of The Hindu Marriage Act [hereinafter referred to as “The Act”], according to the respondent, he is entitled for divorce on the said ground. Therefore, he filed H.M.O.P.No.34 of 2007 before the learned Subordinate Judge, Udhagamandalam, under Section 13(1A) (ii) of the Act seeking divorce. The matter was opposed by the appellant herein by filing a counter. On full trial, the learned Subordinate Judge, by order dated 16.6.2010, dismissed the said Original Petition. As against the same, the respondent filed an appeal in C.M.A.No.27 of 2010 before the learned District Judge, The Nilgiris District at Udhagamandalam. By decree and judgment, dated 17.2.2012, the learned District Judge allowed the appeal, reversed the fair and decretal order of the trial court and granted divorce. Aggrieved over the same, the appellant is before this Court with this civil miscellaneous second appeal.

3. I have heard the learned counsel on either side and also perused the records carefully.

4. A perusal of the records of the trial court would go to show that the trial court dismissed H.M.O.P.No.34 of 2007 on the sole ground that the respondent did not file any execution proceedings against the appellant to execute the decree for restitution of conjugal rights. Thus, according to the trial court, the failure of the respondent herein to initiate the proceedings for execution is wrong on his part and based on his own wrong, he cannot try to take advantage. According to the appellant, under Section 23(1)(a) of the Act, the respondent herein cannot be allowed to take advantage of his own wrong. But, the first appellate court reversed the said finding. According to the first appellate court, the failure of the respondent to initiate the proceedings for execution of the decree cannot be termed as “wrong” in terms of Section 23(1)(a) of the Act. It is on this ground, the first appellate court granted decree of divorce in favour of the respondent.

5. In this appeal, the learned counsel for the appellant would submit that the trial court was wrong in granting decree for divorce as the respondent is not entitled for divorce. According to him, the failure of the respondent to initiate execution proceedings to execute the decree is a misconduct on his part in terms of Section 23(1)(a) of the Act and, therefore, the respondent is not entitled for divorce. T