IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO(HMA) 49 of 2006. Judgment Reserved on 29.9.2009. Date of decision 6th October, 2009. Smt. Taro Devi …Appellant. Versus Sh. Rajinder Kumar …Respondent. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. For the appellant. Mr. G.D.Verma, Sr. Advocate, with Mr. Romesh Verma, Advocate. For the respondent Mr. Ramakant Sharma, Advocate. Dev Darshan Sud, J. The appellant wife has challenged the decree of divorce granted in favour of the respondent-husband under Section 13 of the Hindu Marriage Act, 1955 (hereafter referred to as ‘the Act’) on the ground of non compliance of the decree for restitution of conjugal rights under Section 9 of the Act passed on the petition instituted by the appellant wife. The marriage between the parties was solemnized according to the Hindu rites on 29.11.1988. It was pleaded by the respondent husband that he was serving in the Indian Army and was posted at the Siachen Glacier and other Whether the Reporters of local news papers are allowed to see the Judgment? Yes. - 2 - difficult border posts for more than 12 years. There was litigation pending between the parties including proceedings under Section 125 of the Code of Criminal Procedure initiated by the wife. It was pleaded that the appellant herein instigated her sister (who was married to the brother of the respondent) for instituting criminal proceedings against him. Ultimately, petition under Section 9 of the Act praying for restitution of conjugal rights was instituted by the appellant herein in the Court of learned Additional District Judge, Solan which was decreed on 23.1.2002 vide Ex.P-6. The order reads: “23.1.2002 Present: Ms. Vandana Bansal, ld. Counsel for the applicant. Sh. H.R.Sharma, Ld. Counsel for respondent. Reconciliation tried. Sh. H.R.Sharma, Ld. Counsel for the respondent has submitted that he has no objection in case the said application is allowed for restitution of conjugal rights. It was laid down by Full Bench of Punjab & Haryana High Court in Joginder Singh Vs. Pushpa, AIR 1969 P & H 397 that the consent decree in all cases cannot be said to be collusive and where the parties had agreed to passing of decree and the Court had tried to make reconciliation the husband was not dis-entitled to get a decree. This judgment was approved by Apex Court in Saroj Rani vs. Sudarshan Kumar AIR 1984 SC 1562 and it was laid down that where the husband had denied - 3 - the allegations but has stated that he was ready and willing to take the wife back and decree was passed it cannot be said that decree was collusive decree. In the present case also the husband had denied the allegations but is ready and willing to take the wife back, therefore, in these circumstances there is no impediment in passing of decree. Therefore, the present application is allowed and the decree of the restitution of conjugal rights is passed in favour of the applicant/ petitioner with no order as to costs, in view of the statement made by Counsel for the respondent. Decree sheet be prepared accordingly and the file after its needful be consigned to record room.” Subsequent thereto, the wife issued a notice Ex.P-1 accusing the respondent of not taking any steps to obey decree for restitution of conjugal rights as a result of which she alleged she has been deprived of her “merital rights” and maintenance and blamed the respondent-husband of forcing her into a situation where she would be forced to divorce the respondent which in effect was his well thought out game plan. This notice was issued on 6.5.2002. In reply vide Ex.P-2 the respondent herein replied that the allegations made against him were incorrect. He specifically brought to the notice of the appellant that he was posted at Kargil from where he cannot be relieved of his duties as he was posted in a sensitive area. Specific stand taken by the respondent that: - 4 - “1. This para of your notice is correct so far as filing of case for restitution of Conjugal rights and the same was decreed. You know very well that my client is posted at Kargil Kashmir and the Country is facing War from the side of Pakistan and my client is posted at a very sensitive place and cannot come. My client wrote you letter that you should at once go to your matrimonial home since your elder sister is also residing there in the matrimonial home and you are not new to the matrimonial home and not a child as well. You should have proceeded to the matrimonial home at once and the old parents of my client should have entertained you, well-comed you there in the house. You want only to harass my client and nothing more. You are litigating with my client since the date of your marriage continuously. Not a single day has passed since your marriage with my client which went peacefully.” The reply concluded with the advice to the appellant to reside in her matrimonial home immediately. This was followed by a rejoinder by the appellant Ex.P-5 which in effect reiterates what has been stated in the notice Ex.P-1. Another notice Ex.R-1, dated 22.1.2003 was issued by the appellant herein to the Commanding Officer, Second Battalion, J& K Rifles, where the respondent was serving accusing him of forcing her into agreeing to a divorce. - 5 - The learned trial Court on the evidence on record concluded that decree for restitution of conjugal rights has not been obeyed and the respondent could not be said to have taken advantage of his own wrongs. The marriage was accordingly dissolved. On the other issue of cruelty, there was no evidence. While reaching this conclusion, the learned trial Court relied upon the evidence of the respondent, which consisted of his affidavit in which he had stated that petition under Section 9 of the Act for restitution of conjugal rights was instituted on 24.10.2001 and decreed on 23.1.2002 and from the date of decree, the respondent made no effort to comply with the decree. So far as he is concerned, for the last 12 years, he was posted on the border. No attempt was made by the appellant to join his company in his matrimonial house. The appellant appeared as her own witness and stated that she was maltreated by the respondent. Another witness PW-2 was produced who says that she wanted to stay with the respondent but has been stopped from joining his company by him. Learned counsel appearing for the appellant submits that the learned Court below was not correct in decreeing the petition filed by the respondent. In particular, he refers to the provisions of Section 23(1) (a) of the Act which mandate that no party shall be allowed to take advantage of his own wrong. The provision reads: - 6 - “23. Decree in proceedings. - (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that- (a) any of the grounds for granting relief exists and the petitioner (except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub- clause (c) of clause (ii) of section 5) is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and……” Learned counsel places reliance on a decision of the Supreme Court in Hirachand Srinivas Managaonkar v. Sunanda, AIR 2001 SC 1285 holding: “16. In this connection it is also necessary to clear an impression regarding the position that once a cause of action for getting a decree of divorce under Section 13 (1-A) of the Act arises the right to get a divorce crystallizes and the Court has to grant the relief of divorce sought by the applicant. This impression is based on a misinterpretation of the provision in Section 13 (1-A). All that is provided in the said Section is that either party to a marriage may present a petition for dissolution of the marriage by a decree of divorce on the ground that there has been no resumption of cohabitation between the parties to the marriage for a period of one year or more after the passing of a decree for judicial - 7 - separation in a proceeding to which they were parties or that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or more after the passing of a decree for restitution of conjugal rights in a proceeding to which both the spouses were parties. The Section fairly read, only enables either party to a marriage to file an application for dissolution of the marriage by a decree of divorce on any of the grounds stated therein. The Section does not provide that once the applicant makes an application alleging fulfillment of one of the conditions specified therein, the Court has no alternative but to grant a decree of divorce. Such an interpretation of the Section will run counter to the provisions in Section 23 (1) (a) or (b) of the Act. In Section 23 (1) it is laid down that if the Court is satisfied that any of the grounds for granting relief exists and further that the petitioner is not in any way taking advantage of his or her own 'wrong' or disability for the purpose of such relief and in Clause (b) a mandate is given to the Court to satisfy itself that in the case of a petition based on the ground specified in Clause (i) of Sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty, the petitioner - 8 - has not in any manner condoned the cruelty and in (bb) when a divorce is sought on the ground of mutual consent such consent has not been obtained by force, fraud or undue influence. If the provisions in Section 13 (1-A) and Section 23 (1) (a) are read together, the position that emerges is that the petitioner does not have a vested right for getting the relief of a decree of divorce against the other party merely on showing that the ground in support of the relief sought as stated in the petition exists. It has to be kept in mind that relationship between the spouses is a matter concerning human life. Human life does not run on dotted lines or charted course laid down by statute. It has also to be kept in mind that before granting the prayer of the petitioner to permanently snap the relationship between the parties to the marriage every attempt should be made to maintain the sanctity of the relationship which is of importance not only for the individuals or their children but also for the society. Whether the relief of dissolution of the marriage by a decree of divorce is to be granted or not depends on the facts and circumstances, of the case. In such a matter it will be too hazardous to lay down a general principle of universal application.” Learned counsel submits that this is a case where relief claimed could not be granted as - 9 - the respondent was taking advantage of his own wrong(s)/ misconduct and that the appellant wife was always ready and willing to join the company of the respondent. I cannot persuade myself to hold that the respondent herein is taking advantage of his own wrongs. The cross examination of the appellant is revealing. She says that after 2000, she made no attempt to join the company of the respondent for the simple reason that nobody came to call her. This is indeed a strange stand adopted by her. The evidence on record proves that the respondent was posted in Kargil or other sensitive areas of the border. How he could take any positive step to ask the appellant herein to join his company is not understood. In his reply to the notice issued by the petitioner, the respondent is absolutely clear when he says that she should come to her matrimonial house where his father was residing and she was absolutely free to live there as his wife. There is no answer to this allegation. It is, therefore, clear from the record that the appellant was only trying to build up a ground to show that she was in fact attempting to obey the decree for restitution of conjugal rights and to lay blame of non compliance on the respondent. The respondent cannot be held to be guilty, in any manner, of taking advantage of his own wrongs. The conclusion is otherwise, which is that it is the appellant who is trying to take such advantage. - 10 - In the facts and circumstances of the case, I find no merit in this appeal which is accordingly dismissed. There shall be no order as to costs. Pending application(s) shall stand dismissed. October 6, 2009 (PC). (Dev Darshan Sud), J.