THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE K.S. APPA RAO F.C.A. Nos. 36 and 37 of 2009 Common Judgment: (Per Sri. N.V. Ramana, J.) The appellant-husband aggrieved by the common order dated 27.06.2008, passed by the Judge, Family Court, Hyderabad, in F.C.O.P. No. 853 of 2006 and 767 of 2007, has filed these two Family Court Appeals - F.C.A. No. 36 of 2009 is directed against the order in F.C.O.P. No. 767 of 2007, refusing to grant custody of the child, while F.C.A. No. 37 of 2009 is directed against the order in F.C.O.P. No. 853 of 2006, refusing to grant him divorce by dissolving his marriage with the respondent-wife. Before proceeding to decide the issue involved in the matter, we deem it appropriate to make a brief reference to the series of litigation between the parties. The appellant-husband filed O.P. No. 478 of 2002 on the file of Family Court, Hyderabad, for dissolution of his marriage with the respondent-wife and for grant of divorce. Later, on the application made by the respondent, it was transferred to the Family Court, Secunderabad, and re-numbered as O.P. No. 278 of 2003. The respondent filed a counter claim for restitution of conjugal rights. The Family Court, by order dated 25.03.2004 dismissed the O.P. filed by the appellant for divorce and allowed the counter-claim of the respondent for restitution of conjugal rights. Aggrieved by the same, the appellant filed C.M.A. No. 1459 of 2004 and subsequently, he withdrew the same. The appellant, later filed O.P. No. 683 of 2005 on the file of the Family Court, Hyderabad, for grant of divorce on the ground that in spite of order of restitution of conjugal rights, the respondent did not join him. The respondent again filed counter claim for restitution of conjugal rights. The appellant then withdrew the O.P. for divorce, and by order dated 19.12.2006, the Family Court, dismissed the O.P. filed by the appellant as withdrawn and allowed the counter-claim of the respondent for restitution of conjugal rights. Thereafter, the appellant filed O.P. No. 853 of 2006 on the file of the Family Court, Hyderabad, under Section 13(1-A)(ii), 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 for divorce. During the pendency of the O.P., when the respondent did not permit the appellant to see his son, the appellant filed O.P. No. 762 of 2007 under Section 6A of the Hindu Guardianship and Minority Act, 1956 for custody of the minor child. Both the O.Ps., were dismissed by the Family Court, by orders dated 27.06.2008, which are now impugned before us. The specific case of the appellant is that he and respondent were in love and got married on 05.03.2000. They stayed happily together till 20.01.2002 on which day, the respondent left to her paternal uncle’s house against his wish. On 18.03.2002, he came to know through his colleagues that he was blessed with a male child. He was not permitted to see the newborn and was manhandled by the father of the respondent. When he filed O.P. for divorce, the respondent gave a complaint under Section 498-A IPC against him and his family members. When his O.P. was dismissed, he filed C.M.A. and later withdrew the same as there was a compromise. In spite of the restitution decree, when the respondent did not join him, he was compelled to file another O.P. No. 683 of 2005, and finally withdrew the same. In spite of the fact that he had sent tickets, the respondent has not joined him along with the child. Then he issued notice on 28.06.2005 and 07.07.2005 calling upon the respondent to join him. Subsequently, he approached the Superintendent of Police, Women Protection Cell, Lakdi-ka-pul, Hyderabad on 18.07.2005 requesting them to counsel the respondent, but the respondent did not turn up on the date of counseling. Hence, having no other alternative, the appellant filed the present O.P. for divorce. And as he was not permitted to see his son, he filed another O.P. for custody of the child. The case of the respondent is that the appellant was her senior in Nizam College. When the appellant proposed to her, while he was working at Singapore, she brought this to the notice of her parents, who advised her to get married after completing post-graduation. In the year 2000, the appellant blackmailed her emotionally and pushed her into the marriage by eloping. A complaint was given by her parents to the police, and to escape the rigor of the complaint, he forced her to marry him. After the marriage, she was not welcomed and allowed by her in-laws. They took rented house at KPHB Colony. When she was in her 7th month pregnancy, she went to her in-laws house on the advise of the appellant’s paternal uncle and aunt on 16.12.2001. Though she was not keeping well, she was not sent to her parents house and in turn, the appellant and his parents harassed her for additional dowry. On 20.01.2002, she was sent to her maternal home for delivery. After the birth of the child, the appellant and his parents did not come to see the child. When the discussions were going on to send the respondent to stay with the appellant, the appellant filed O.P. No. 278 of 2003, and she filed counter-claim for divorce and also gave a complaint under Section 498-A IPC read with Sections 3 and 4 of the Dowry Prohibition Act, 1961. Against the orders in O.P. No. 278 of 2003, the appellant filed C.M.A. No. 1459 of 2004, and when the respondent claimed maintenance, the appellant withdrew the appeal to avoid payment of maintenance and not because of any compromise. When the appellant has not taken any steps to take her, she gave a legal notice on 14.07.2004 to which a reply notice dated 25.07.2004 was issued by the appellant. The respondent issued another notice dated 12.08.2004, to which reply-notice dated 15.08.2004 with false allegations was issued. The further case of the respondent is that when the appellant withdrew the second O.P. No. 683 of 2005 on 19.12.2006, she was informed that on 27.12.2006, he is leaving on a project to Singapore for six months. On enquiry, it was proved to be incorrect. The appellant played fraud upon her and is dancing to the tunes of his parents. They lived as husband and wife till 27.12.2006 and there is no cause of action to file the present O.P. According to the respondent, the appellant never came to see the child and even though the Family Court granted maintenance of Rs.7,500/- per month, he paid only for two months and has to pay arrears of maintenance for 43 months amounting to Rs.3,22,500/-, and that the appellant, who has no concern for the child is not entitled to any relief. The learned counsel for the appellant submitted that pursuant to the order of restitution of conjugal rights dated 25.03.2004 granted by the Family Court, in spite of the best efforts of the appellant, he could not take the respondent into his company. When there is no restitution of conjugal rights for one year from the date of passing of decree of conjugal rights, the appellant is entitled to divorce under Section 13(1- A)(ii) of the Hindu Marriage Act, 1955. He further submitted that even assuming that the appellant has refused to take the respondent into his company for leading marital life as observed by the Family Court that by itself does not constitute a wrong dis-entiling the appellant to seek relief of dissolution of his marriage with the respondent under Section 13(1-A)(ii) of the Hindu Marriage Act. In support of this argument, he relied on the judgment of the apex Court in Dharmendra Kumar v. Usha Kumar[1]. Insofar as custody of the child is concerned, though the appellant filed appeal against the order refusing to grant custody of the minor child to him, it is submitted that he would be satisfied, if he is given visitation rights to see the child and prayed to set aside the orders passed in F.C.O.P. No. 853 of 2006 and sought for modification of the order in F.C.O.P. No. 767 of 2007 by granting visitation rights. On the other hand, the learned counsel for the respondent submitted that even after the decree of restitution of conjugal rights attained finality, the appellant refused to take her in spite of the serious efforts made by her, he has not furnished his Mumbai address, facilitating her to join him at Mumbai. He further submitted that the appellant is responsible for not enforcing the decree of restitution of conjugal rights, and therefore, he cannot be allowed to take advantage of his own wrong, and in support of this argument, he relied on the judgment of this Court in P. Srinivasulu v. Hemalatha[2]. With regard to custody of the child, he submitted that since the appellant never cared about the welfare of the child, he is not entitled to seek custody of the child, except visitation rights and relied on the judgments of the apex Court in Gaurav Nagpal v. Sumedha Nagpal[3] and Suman Bhasin v. Neeraj Bhasin[4]. We have heard the learned counsel for the appellant-husband and the learned counsel for the respondent-wife elaborately and perused the order under appeal. The appellant, admittedly, has filed the present O.P. under Section 13(1-A)(ii) of the Hindu Marriage Act, 1955 seeking dissolution of his marriage with the respondent and grant of divorce, mainly contending that even after passing of decree of restitution of conjugal rights in favour of the respondent on 25.03.2004, there was no restitution of conjugal rights between him and the respondent, for more than one year from the date of the said order, and that in fact, they are living separately since 20.01.2002. That being so, it may be noticed, whether he has made out a case for dissolution of his marriage with the respondent and grant of divorce, on the ground that there is no restitution of conjugal rights, between him and the respondent, for a period of more than one year from the date of passing of decree of conjugal rights. Before we proceed to consider this question, in the light of the pleadings and evidence let in by the parties, it would be appropriate, if a reference is made to the provisions of Section 13)1-A)(ii) of the Hindu Marriage Act, 1955, which reads as follows: Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground – (i) x x x x x x (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of two years or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they are parties. The above provision was amended in 1976, reducing the period of two years to one year. From a reading of the above provision of law, it is clear that either party may present a petition for the dissolution of marriage by a decree of divorce if there has been no restitution of conjugal rights for a period of one year or upwards from the date of passing of decree for restitution of conjugal rights. In the instant case, from the admitted facts and contentions of both the parties, it is clear that that both the parties could not stay together, for different reasons, as stated by both of them. That being so, we have to now examine as to whether there has been restitution of conjugal rights between the parties, for a period of one year and upwards, from the date of passing of decree of conjugal rights on 25.03.2004 by the Family Court, and if so, whether the appellant refused to take the respondent into his company or the respondent refused to join the company of the appellant to lead marital life. There is no dispute with regard to the fact that the order dated 25.03.2004 passed by the Family Court, Secunderabad, dismissing O.P. No. 278 of 2003 for divorce and allowing the counter-claim of the respondent for restitution of conjugal rights attained finality after the appellant withdrew the appeal in C.M.A. No. 1459 of 2004, filed by him against the order in O.P. refusing to grant him divorce. It is the case of the appellant that he tried his best to make the respondent join the matrimonial home. That as he was working in Mumbai, he even purchased tickets for the respondent and the child. When the respondent did not join him at Mumbai, he issued legal notice dated 28.06.2005 and the respondent sent reply, by keeping a plain blank paper in it. He issued another legal notice dated 07.07.2005, to which the respondent did not reply, though she has received the same on 13.07.2005. He even approached the Superintendent of Police, Women Protection Cell, Lakdi-ka-pul, Hyderabad, on 18.07.2005, with a request to counsel the respondent, and though the police issued notice dated 19.07.2005 to appear for counseling, the respondent did not appear. From the facts of the case, as narrated above, one thing that becomes clear is that the relations between the appellant and the respondent are not cordial. The relations are strained and animosity had developed in their relationship. This relationship further strained with the lodging of criminal complaint by the respondent against the appellant and his family members under Section 498-A IPC read with Sections 3 and 4 of the Dowry Prohibition Act, 1961, which ended in their acquittal by judgment dated 24.08.2009, passed by the Judicial First Class Magistrate, Miyapur. Even after the decree of restitution of conjugal rights dated 25.03.2004, there is no re-union between the parties for more than seven years as on date. The case of the respondent is that she could not join the appellant at Mumbai because the appellant has not furnished the address to enable her to join him along with her son to lead marital life. But curiously, the respondent in her cross-examination has stated that she knows the Mumbai address of the appellant and that both of them lived together till the end of July, 2005 in Flat No. 202, Gangotri Apartments, Koperkhairle Vashi, Mumbai. This admission on the part of the respondent falsifies her case that the appellant has not furnished his Mumbai address to enable her to join him. However, to overcome that statement, she has taken a stand that the appellant has sent her a message that he has shifted the place of his residence. This is a new case put forth by the respondent for the first time in the evidence, which appears like an after thought. Be that as it may, the stand taken by the respondent that she does not know the Mumbai address of the appellant, and therefore, she could not join, him does not seem to be trustworthy, in view of the fact that she is an educated lady and she is aware where the appellant is working, and nothing prevented her from taking the address from the employer of the appellant. The respondent has not taken any steps to join the husband and whereas, the husband by issuing legal notices to her to join him and by approaching the Superintendent of Police, Women Protection Cell, to counsel the respondent to lead marital life, has made some efforts from his side for restitution of conjugal rights. Hence, in view of the stand taken by the respondent, the finding recorded by the Family Court, Hyderabad, that the appellant without furnishing his residential address cannot expect the respondent to come over to Mumbai to join him for leading matrimonial life and further holding that the appellant is responsible for non compliance of the order of restitution of conjugal rights, cannot be sustained. The fact that the appellant was not living with the respondent after filing O.P. No. 683 of 2005 becomes clear from Ex.P8- undertaking dated 25.11.2005 given by the appellant to Punjagutta police that he will not disturb the respondent at her office or house or any third place. This undertaking given by the appellant belies the stand of the respondent that she stayed with the appellant for some time clearly suggests that she wanted to make it appear to the Court as if they lived together and there has been restitution of conjugal rights between them and there is no cause of action to file the present O.P. for dissolution of marriage and the same is liable to be set aside. On the other hand, the series of proceedings initiated by the appellant clearly shows that the respondent was not showing any inclination to join the appellant. Had the respondent joined the appellant to lead marital life, there was no occasion for the appellant to file the present O.P. and the earlier O.P. Therefore, it cannot be said that the appellant is at fault in complying with the orders of restitution of conjugal rights. In that view of the matter, reliance placed by the respondent on the judgment of this Court in P. Srinivasulu v. Hemalatha, in support of his argument that the appellant cannot be allowed to take advantage of his own wrong and claim dissolution of marriage, would not be of any assistance to her. Even assuming that the appellant was responsible for non- compliance with the decree for restitution of conjugal rights, whether such conduct of the appellant in complying with the decree of restitution of conjugal rights, would constitute a wrong within the meaning of Section 23(1)(a) of the Hindu Marriage Act, 1955. This issue was considered by a Full Bench of the Delhi High Court in Ram Kali v. Gopal Dass[5]. Having considered the said issue, the Full Bench of the Delhi High Court, held that mere non-compliance with the decree for restitution does not constitute a wrong within the meaning of Section 23(1)(a) of the Hindu Marriage Act, 1955. Subsequently, a learned Judge of the Delhi High Court, in Gajna Devi v. Purshotam Giri[6], relying on and explaining the judgment of Full Bench in Ram Kali, observed as follows: Section 23 existed in the statute book prior to the insertion of Section 13(1A) … Had Parliament intended that a party which is guilty of a matrimonial offence and against which a decree for judicial separation or restitution of conjugal rights had been passed, was in view of Section 23 of the Act, not entitled to obtain divorce then it would have inserted an exception to Section 13(1A) and with such exception, the provisions of Section 13(1A) would practically become redundant as the guilty party could never reap benefit of obtaining divorce, while the innocent party was entitled to obtain it even under the statute as it was before the amendment. Section 23 of the Act, therefore, cannot be construed so as to make the effect of amendment of the law by insertion of Section 131A) nugatory. … The expression “petitioner is not in any way taking advantage of his or her own wrong” occurring in Cl. (a) of S. 23(1) of the Act does not apply to taking advantage of the statement right to obtain dissolution of marrige which has been conferred on him by Sec. 13(1A)… In such a case, a party is not taking advantage of his own wrong, but of the legal right following upon of the passing of the decree and the failure of the parties to comply with the decree…”. The apex Court in Dharmendra Kumar v. Usha Kumar, posed a question for itself, namely would the allegation, if true, that she (wife) did not respond to her husband’s invitation to come and live with him disentitle her to the relief of divorce? And observing that we do not find it possible to hold that it would, and quoting the above-referred judgments of the Delhi High Court with approval, held as follows: In our opinion the law has been stated correctly in Ram Kali v. Gopal Das (supra) and Gajna Devi v. Purshotam Giri (AIR 1977 Delhi 178) (supra). Therefore, it would not be very reasonable to hink that the relief which is available to the spouse against whom a decree for restitution has been passed, should be denied to the one who does not insist on compliance with the decree passed in his or her favour. In order to be a ‘wrong’ within the meaning of Section 23(1)(a), the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled. In the case before us, the only allegation made in the written statement is that the petitioner refused to receive or reply to the letters written by the appellant and did not respond to his order attempts to make her agree to live with him. This allegation, even if true, does not amount to misconduct grave enough to disentitle the petitioner to the relief she has asked for. In the case on hand, the marriage of the appellant and the respondent is a love marriage without the intervention of elders of either parties, and even though there was no participation of family members of the appellant in the performance of the marriage of the appellant and the respondent and even though no demand of dowry made by the appellant at the time of marriage, yet after straining of relations between the appellant and the respondent, the respondent filed a criminal case against the appellant and his family members, which ended in their acquittal. The pendency of the criminal case, can be one of the reason for aggravation of the animosity developed by the appellant against the respondent so as to refuse to take her into his company for leading marital life. That being so, even if it is assumed that the appellant has refused to take the respondent into his company for leading marital life in terms of the decree of restitution of conjugal rights obtained by the respondent on 25.03.2004 from the Family Court, which attained finality, that by itself does not constitute “wrong” serious enough to deny the appellant the relief of dissolution of his marriage with the respondent and grant divorce. Be that as it may, during the pendency of the present appeals before the Court, the appellant even though, filed the appeal questioning the order passed by the Family Court, dismissing his O.P. for divorce, yet expressed his willingness to take the respondent into his company for leading marital life. The respondent, who was present before the Court, though initially expressed her intention to join the appellant, later she had put a condition that the appellant should come over to Hyderabad, and then she will join. When the appellant did not agree to this, the respondent submitted that she is working in Infosys and that she is handling a project work and as such, her presence in Hyderabad is necessary, and therefore, she will join the appellant during week-ends. From the conduct exhibited by the respondent, we are of the considered view that the respondent is not sincere in her attempts to join the appellant and in fact, her conduct strengthens the case of the appellant that the respondent is not interested to lead marital life with him. At any rate, the appellant having successfully proved before the Court that there has been no restitution of conjugal rights for a period of more than one year from the date of passing of decree of restitution of conjugal rights by the Family Court, in O.P. No. 278 of 2003 on 25.03.2004, having regard to the provisions of Section 13(1-A)(ii of the Hindu Marriage Act, 1955, is entitled for a decree of divorce by dissolution of his marriage with the respondent. Accordingly, we set