JUDGMENT
V. Neeladri Rao, J.
1. The appellant herein is the wife of the respondent. They were married on 8-5-1985. Both of them belong to Bhimavaram. The appellant went to her parents house in 1986 for confinement. She delivered a male child on 14-8-1986 and he was named Raju. The respondent herein filed O.P.No. 25 of 1987 on the file of the Subordinate Judge, Bhimavaram for restitution of conjugal rights under Section 9 of the Hindu Marriage Act by alleging that the appellant behaved in indifferent manner and she never treated him as her husband and she developed antipathy towards him and on the evil advice of her mother, she refused to join him. When the said O.P. had come up for hearing, the appellant herein reiterated that she was willing to go and join the respondent herein as she averred in the counter and she denied the various allegations in O.P.No. 25 of 1987. The said O.P. was allowed on 24-8-1987 as the appellant herself admitted to go and join the respondent herein. The appellant herein went to the house of the respondent herein on 21-8-87 and they lived together till 14-9-1987. The respondent herein alleges that the appellant herein picked up quarrel with him saying that she joined him only to get O.P.No. 25 of 1987 dismissed and she again deserted him. He further alleged that the matter was reported to the elders of the caste and he issued lawyer’s notice dt.19-9-1987 as per Ex.A-1 and though the appellant received it, she had not even sent a reply. On the other hand, the appellant herein filed M.C.No. 31/87 on the file of the II Addl. Judl. First Class Magistrate, Bhimavaram under Section 125 Cr.P.C. claiming maintenance for herself and their son. The II Addl. Judl. First Class Magistrate, Bhimavaram granted maintenance only to the son and her claim for maintenance was negatived and the same was affirmed by the Sessions Court in revision. The respondent herein filed O.P.No. 3 of 1989 on the file of the Subordinate Judge, Bhimavaram under Section 13(1) (ia), (ib) and Section 13 (1-A) (ii) of the Hindu Marriage Act for divorce.
2. The appellant herein resisted the claim of the respondent herein for divorce by alleging that the respondent ill-treated her and expelled her from the house and he is addicted to vices i.e., gambling, drinking and debauchery and he was ill-treating her as she had not applied for the job on the death of her father and allowed her younger brother to have that job.
3. The lower court granted divorce under Section 13 (1-A) (ii) of the Hindu Marriage Act. Section 13 (1-A) (ii) of the Hindu Marriage Act reads as under:
” 13 (1-A) Either party to a marriage whether so lemnised 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) ………..
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.”
4. One can invoke Section 13 (1-A) (ii) of the Hindu Marriage Act if the spouse against whom the order of restitution of conjugal rights was passed had not chosen to comply with the same for a period of one year or upwards after the passing of a decree for restitution of conjugal rights. In this case, the decree for restitution of conjugal rights as against the appellant herein was passed on 21-8-1987 in O.P.No. 25 of 1987. On the same day, the appellant herein went to the house of the respondent herein and lived with him till 14-9-1987. As there was restitution of conjugal rights in compliance with the order in O.P.No. 25 of 1987, the respondent herein has no right to claim divorce by relying upon Section 13 (1-A) (ii) of the Hindu Marriage Act, urged the learned counsel for the appellant.
5. The contentions for the respondent to repel the above arguments for the appellant are two-fold, (i) The appellant herein had chosen to live with the respondent for a period of about three weeks to get over Section 13 (1-A) and it was not with an intention to lead marital life with the respondent. It cannot be held that the appellant complied with the order of restitution of conjugal rights passed in O.P.No. 25 of 1987 and (ii) mere living together does not amount to restitution of conjugal rights. As the appellant had not cohabitated with the respondent during the period she stayed with him from 21-8-1987, there was no restitution of conjugal rights as envisaged under Section 13 (1-A) (ii) of the Hindu Marriage Act and hence the order of divorce granted by the lower court cannot be set aside.
6. We will first deal with the later contention for the respondent. He pleaded in para 9 of the petition that there was no restitution of conjugal rights of resumption of cohabitation as between him and his wife for a period of more than one year after expressing her willingness to join him in O.P.No. 25 of 1987. The same was denied in para 7 of the counter by alleging that it was false to contend mat there was no resumption of cohabitation in between her and her husband for a period of more than one year. Hence, she has duly joined her husband and the so-called time limit mentioned by her husband is not correct.
7. The petitioner as P.W.1 had not stated in the chief-examination that there was no cohabitation after she joined him in pursuance of the order in O.P.No. 25 of 1987. He merely deposed in the chief- examination that his wife picked up quarrel and stating that only because the petition was filed in the Court, she came to get it dismissed and on quarrelling she went away. But in the cross-examination he deposed that during those 20 days, his wife did not have sexual intercourse with him and he denied the suggestion that he cohabitated with his wife during those 20 days.
8. In the chief examination, the appellant herein denied the allegation that with a view to deceive her husband, she went to the house of her husband an stayed with him after O.P.No. 25 of 1987 was
dismissed. She had not spoken to in the chief-examination about cohabitation during the period of those 20 days, and it was not even suggested to her that there was no cohabitation during that period.
9. But by relying upon Ex. A-1 lawyer notice dated 19-9-1987 issued by the respondent herein to the appellant, the lower court held in para 12 of the order that there was an admission on the part of the respondent herein in Ex. A-1 that he had sexual intercourse with his wife during that period of those 20 days. Ex.A-1 is in Telugu. The relevant recitals in Ex.A-1 are as under:
The emphasis is on the expression& ” (Sick) i.e., marital life. In view of the categorical admission in the lawyer’s notice Ex.A-1 the plea of the respondent herein that during the period of 20 days there was no cohabitation cannot be believed. We fully agree with the said finding of the learned Subordinate Judge.
10. In view of the said finding, the question as to whether there cannot be any restitution of conjugal rights in the absence of cohabitation does not arise for consideration in this appeal. Thus, we do not feel it necessary to express any view in regard to the contention for respondent that mere living is not sufficient to constitute restitution of conjugal rights in pursuance of the order under Section 9 of the Hindu Marriage Act, and in the absence of cohabitation, it had to be held that there is no such restitution.
11. We will now consider the first contention for the respondent. In this case there was restitution of conjugal rights within less than one year from the date of the order in O.P.No. 25 of 1987 filed under Section 9 of the Hindu Marriage Act. In view of the said compliance, Section 13 (1-A) of the Hindu Marriage Act cannot be invoked, urged the learned counsel for the appellant. But the fact that the appellant left the house of her husband by merely living for 20 days amounts to fraud and it is a case of abuse of Section 13 (1-A), submitted the learned counsel for the respondent. But Section 13(1-A) is specific to the effect that divorce can be granted only in a case where there was no restitution of conjugal rights for a period of one year or more after the order was passed. But it does not indicate that if the other spouse joined only with a view to deny the benefit of Section 13 (1-A) of the Hindu Marriage Act, the period of such stay has to be excluded. Section 23 (a) of the Hindu Marriage Act postulates that the petitioner alone cannot take advantage of his or her own wrong or disability for the purpose of relief sought. But it does not refer to the fraud or deceipt if any on the part of the respondent.
12. It may be further noted that the spouse who got the relief under Section 9 of the Hindu Marriage Act is not without remedy even assuming that the other spouse had chosen to live with him or her for a few days just to get over the liability under Section 13 (1-A) of the Hindu Marriage Act. In such a case, the spouse who got relief under Section 9 of the Hindu Marriage Act can again wait for two years and claim divorce on the ground of desertion as envisaged under Section 13 (1) (ib) of the Hindu Marriage Act.
13. Hence, the learned Subordinate Judge erred in holding that the stay of the appellant with the respondent for 20 days after the order in O.P.No. 25 of 1987 was passed does not amount to compliance of the order for restitution of conjugal rights.
14. Even the lower Court had not granted the relief of divorce under Section 13 (1) (ib) of the Hindu Marriage Act, as two years had not elapsed from 14-9-1987 the date on which the appellant is said to have left the house, by 23-1-1989 the date on which this petition was filed. The period from 14-9-1987 only can be reckoned for admittedly the appellant was with the respondent and they lived together till 14-9-1987 from 21-8-1987.
15. There is not even a single averment in the petition to indicate the the appellant treated the respondent with cruelty. There is also no evidence about it. But, the learned counsel for the respondent urged that as the appellant refused to cohabit with the respondent, during her stay for 20 days, the latter was subjected to mental agony and thereby it had to be held that the appellant treated him with cruelty. But we confirmed the finding of the lower court that they had happy married life during those 20 days. Thus, there is no basis for the above contention for the respondent. Hence, this ground also fails.
16. Before concluding, we have to refer to Section 23(2) of the Hindu Marriage Act which imposes a duty upon the Court to make every endeavour to bring about a reconciliation between the parties, in every case where it is possible so to do consistently with the nature and circumstances of the case. That provision is applicable in all cases where the divorce is prayed for except when it is claimed on any of the grounds specified in Clauses (ii) to (vii) to Sub-section (1) of Section 13 of the Hindu Marriage Act. There is no material on record as to whether the learned Subordinate Judge made any attempt in that regard. It may be noted that the respondent merely pleaded that the appellant had eversion and antipathy for him and she never treated him as her husband. But it is a case where within few months after the marriage, the appellant conceived. Neither the respondent herein as P.W.1 nor P.W.2 who is said to be the elder of their caste stated about any specific reason given by the appellant or her mother for not sending the appellant to the respondent. There must be some strong reason for the wife if she is not interested in joining her husband and one would naturally state about it at least when the elders are taken by the ‘husband to persuade the wife to join her husband. If the lower Court discharged its duty as envisaged Under Section 23(2) of the Hindu Marriage Act, it could have been known as to whether there are such irreconcilable differences between the couple so that they cannot live together for any long. If the differences had arisen due to sudden emotions or passions, they can be resolved by the intervention of the impartial elders and for that reason, Section 23(2) of the Hindu Marriage Act was incorporated. As the Presiding Officer of the Court, who is unbiased can find out the differences, if any, and then can explore the possibilities of their reconciliation. Anyhow, there is no need for this Court to consider Under Section 23(2) of the Hindu Marriage Act as we held that the lower Court erred in granting divorce Under Section 13(1-A) and the respondent cannot invoke Section 13 (1) (ib) of the Hindu Marriage Act and there is no material to grant divorce Under Section 13 (2) (ia) of the Hindu Marriage Act.
17. In the result, the appeal is allowed and the order of the Court below is set aside and the O.P. is dismissed. In the circumstances of the case, the parties have to bear their respective costs in this appeal.