R. Basant, J— (i) In a claim for divorce under Section 13(1A)(ii) of the Hindu Marriage Act, 1955 (for short ‘the Act’) when the statutory ground is established, what is the nature of “wrong” that can lead to the dismissal of the claim under Section 23(1)(a) of the Act?

(ii) How contumacious should the alleged wrong be to attract rejection under Section 23(1)(a)of the Act?

(iii) Can suffering of an uncontested decree for restitution of conjugal rights and mere non-compliance of such a decree be reckoned as wrongs under Section 23(1)(a) to justify the rejection of the claim for divorce under Section 13(1A) of the Act?

These are the questions that arise for consideration in this appeal.

2. To the vital and crucial facts first. The parties are spouses. Their marriage in accordance with the Hindu religious rites was solemnized on 26.1.2000. The matrimony was in doldrums from the very initial days. They went for honeymoon to Port Blair; came back to the native place and the husband went to his place of employment—Mumbai, after 20 days of marriage. His mother was afflicted with cancer. She expired. The wife was taken to Mumbai, the place of employment of the husband. They lived together there for some time. Admittedly, after a period of about 6 months, in November 2000, the spouses started separate residence. From that day onwards the parties are residing separately.

3. There is a long history of litigation between the parties. M.C.No.40/02 was filed by the wife claiming maintenance under Section 125 of the Code of Criminal Procedure. The husband entered appearance and filed a counter statement. He complained that his wife was cruel to him. He denied allegations of cruelty against him. He did not want to continue the matrimony. He submitted that he wants the marriage to be dissolved. He contended that there was no breach of his obligation to pay maintenance. He did not offer to maintain her on condition that she lives with him. He remained ex parte later. Notwithstanding that, it is reported, that there was an order passed by the Court holding that the husband is guilty of cruelty. The husband was directed to pay maintenance at that the rate of Rs. 5,000 per mensem. There is no grievance that the said amount is not being paid promptly.

4. Be that as it may, the husband filed M.O.P.No.62/02 before the Sub Court, Palakkad on 25.5.2002 claiming divorce on the ground of cruelty under Section 13(1)(ia) of the Act. While that petition was pending, the wife filed M.O.P. No.108/02 before the Sub-Court, Palakkad, claiming restitution of conjugal rights under Section 9 of the Act. Both M.O.P. No.62/02 and M.O.P. No. 108/02 were pending simultaneously. The husband in M.O.P. No. 108/02 filed a counter statement whereunder he agreed to the passing of a decree for restitution of conjugal rights. M.O.P.No. 108/02 was thus allowed on 10.1.2003 by Ext. Al order. Ext. A2 is the copy of the petition in M.O.P.No. 108/02.

5. After the said petition was allowed on 10.1.2003, we find the husband filing I.A.No. 558/04 on 14.2.2004 claiming amendment of M.O.P. No. 62/02 to incorporate the claim for divorce on another ground in the wake of subsequent developments. He prayed that decree for divorce may be granted to him under Section 13(1A)(ii) of the Act also. In short, the prayer was that the decree for restitution of conjugal rights having been passed on 10.1.2003 and the parties having not resumed cohabitation, in obedience to the said decree, he was entitled to claim divorce under Section 13(1a)(ii) of the Act. That petition for amendment was allowed on 24.11.2005.

6. The Family Court by judgment dated 6.1.2006 in M.O.P.No. 62/02 rejected the claim for divorce on both grounds. An appeal was preferred before this Court and this Court by judgment dated 11.9.2007 in Mat. Appeal No.113/06 allowed the appeal in part and remanded the case to the Family Court for fresh disposal of M.O.P. No. 62/02. By then, the Family Court had been established a