JUDGMENT
P.N. Nag, J.
(1) This appeal has been directed against the order dated 19th April, 1991 passed by Ms. Kanwal Inder, Additional District Judge, Delhi whereby she has dissolved the marriage between the parties by passing a decree of divorce under Section 13 A of the Hindu Marriage Act (for short the “Act”).
(2) Relevant facts as set out in the divorce petition are that the respondent-wife filed the petition under Section 13A of the Act against the appellant-husband. They were married according to Hindu rites on 9.5.1979 at New Delhi but the respondent-wife was turned out of her matrimonial home on 24.6.1981 with a view to harassing her and with an intention not to taking her back. The appellant-husband had filed a petition No. Hma 118/83 under Section 9 of the Act for restitution of conjugal rights, which was decreed on 21.3.1987 by the court of Shri R.C.Jain, Additional District Judge. Delhi. In spite of passing such a decree for restitution of conjugal rights, there has been no cohabitation between the parties for a period of more than one year after passing of the said decree. Hence the petition under Section 13A of the Act seeking divorce, has been filed.
(3) It may be noticed here that an execution application was filed by the appellant- husband seeking execution of the restitution of conjugal rights and the same was pending before court when petition under Section 13A of the Act was filed. The petition under Section 13A has been contested by the appellant-husband on the ground that the respondent-wife cannot take the benefit of her own wrong because in spite of the decree for restitution of conjugal rights having been passed she has failed to join the society of the appellant-husband in spite of repeated requests and approaches made by the appellant-husband from time to time and his pending execution application. According to him, during the course of proceedings filed under Section 125 of the Code of Criminal Procedure on behalf of the respondent-wife, he has come to know that his wife was living with a third person, which fact was verified on an application moved by him before the learned Metropolitan Magistrate, Shahdara. In the replication, the same averments are reiterated. On the pleading of the parties the following issues were framed: 1. Whether there has been no resumption of cohabitation between the parties for a period of one year after passing of decree of conjugal rights, as alleged? 1-A. Whether The petitioner is taking advantage of her own wrong? If so, to what effect?
(4) The learned Additional District Judge found that although there has not been restitution of conjugal rights in. spite of the decree obtained by the appellant-husband, but the respondent-wife has every right to file the petition under Section 13A of the Act for dissolution of the marriage. Issue No. 1-A was decided by the learned Additional District Judge in favor of respondent-wife, with the result that the marriage was dissolved and a decree of divorce under Section 13A passed.
(5) Learned counsel for the appellant-husband has vehemently argued the matter and reiterated the submission which has been made before the learned Additional District Judge. According to him, since his execution application for restitution of conjugal rights was pending before the court when the present petition for divorce under Section 13A was filed, the respondent-wife has refused to abide by the decree of the learned court for restitution of conjugal rights, therefore, she was not entitled to the decree of divorce. She cannot take advantage of her own wrong.
(6) I have carefully considered the submission of the learned counsel for the appellant-husband. I regret my inability to accept , same. There is no dispute that there has been a decree passed against the respondent-wife and in favor of the appellant-husband for restitution of conjugal rights but in spite of this decree having been passed and the execution application pending there against, the respondent-wife has not gone back to the house of the appellant-husband. But the question that arises for consideration is whether this act of the respondent-wife is a wrong on the part of the wife and whether she is taking advantage there of.
(7) This question has been considered by is Full Bench of this court in Ram Kali vs. Gopal Dass (1971-1 Tlr 6) and it has been held that the law as amended by Act 44 of 1964 is that for the purpose, of applying for a decree under sub-section (1A) of Section 13) a spouse against whom an earlier decree for judicial separation for restitution of conjugal rights has been awarded shall stand on the same footing as the spouse in which favor such a decree had been granted.
(8) In Smt. Bimla Devi d/O Bakhatwar Singh vs,Singh Raj s/o Dasondhi Ram similar question arose for consideration and it has been held by the Pull Bench of that Court that the provisions of Section 23A on the ground of noncompliance of a decree of restitution of conjugal rights where there has not been restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of decree for restitution of conjugal rights in proceedings in which they were parties. There is no provision in the Code of Civil Procedure by which the physical custody of the spouse, who has suffered the decree, can be made over to the spouse who obtained the decree for restitution of conjugal rights. Thus merely because the spouse, who suffered the decree, refused to resume cohabitation, would a ground to invoke the provisions of Section 23 so as to plead that the said spouse is taking advantage of his or her own wrong.
(9) The decision of Ram Kali(supra) has been approved by the Supreme Court in Dharmendra Kumar vs. Usha Kumar . The Supreme Court has held that in order to be a wrong within the meaning of Section 23 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.
(10) In the face of the authoritative pronouncements and settled law, there is no doubt left now that in these facts and circumstances it cannot be said that the respondent wife was taking advantage of her own wrong and, therefore, the finding of the learned Additional District Judge on this issue is perfectly justified and correct and cannot be interfered with.
(11) Next submission made by the learned counsel for the appellant-husband is that the learned Metropolitan Magistrate in an order dated 27.9.1989 passed in the proceedings filed by the respondent-wife under Section 125 of the Code of Criminal Procedure has observed that the respondent-wife was living in adultery with a third person.
(12) There is no dispute that the present proceeding under Section 13A of the Act, no allegation has been made in the written statement by the appellant-husband that the respondent-wife was living in adultery with a particular person, as is required under the law. Therefore, vague allegations cannot be taken in to consideration. Even otherwise, it is the admitted case of the petition under Section 125 of the Code of Criminal Procedure was dismissed as withdrawn. There is no plea of the petitioner in his petition regarding the misconduct on the part of. the respondent-wife which is grave enough to dis-entitle her to ask for a relief.
(13) I have seen the order dated 27th September, 1988 passed by the learned Magistrate wherein he has mentioned “It appears that the Petitioner is not interested in any maintenance because she has re-married with the person with whom she was found, on 18.4.88, as per the record.” This order does not advance the case of he appellant-husband as the learned Metropolitan Magistrate has simply made this observation starting with the words “It appears”. At any rate in the present proceedings, no congent evidence has come forth from the appellant-husband that there has been misconduct on the part of the respondent-wife and that the respondent-wife is living in adultery.Therefore the finding of the learned Additional District Judge is correct and has to be maintained.
(14) Insofar as issue No. 1-A is concerned there is no dispute that there has been no resumption of cohabitation between the parties within one year from the date of passing of the decree for restitution of conjugal rights. But that will not dis-entitled her in getting the decree for divorce.
(15) In the light of the discussion above, the impugned order is upheld and the marriage is dissolved by a decree of divorce under Section 13A of the Act. The appeal is dismissed with costs.