JUDGMENT
B.P. Dharmadhikari, J.
1. This Second Appeal is filed by the Original petitioner/Husband. An application for grant of divorce under Section 13(1A)(ii) of Hindu Marriage Act, 1955, hereinafter mentioned as “Act”; was moved by him against the present respondent, the said application was granted by the Civil Judge, Senior Division, Nagpur on 23-4-1982 and the present respondent – Wife carried appeal against it under Section 28 of the Hindu Marriage Act, vide Civil Appeal No. 358 of 1982. The said appeal has been allowed by the 5th Additional District Judge, Nagpur on 24-7-1987. The present Second Appeal under Section 100 of Code of Civil Procedure has been admitted by this Court on 27-7-1988, on questions of law as given in the appeal memo as substantial questions of law involved therein. The said questions read as under:
(1) Whether the Lower Appellate Court was right in holding that the decision dated 8-2-1977 in Second Appeal No. 385 of 1971 operates as res judicata in the present case?
(2) Whether there is change in law in view of the decision of the Supreme Court dated 19-8-1977 reported in AIR 1977 SC 2218, after the decision of Second Appeal No. 385 of 1971 on the interpretation of Section 13(1-A) and Section 23(1) of the Hindu Marriage Act, 1955?
(3) Whether the cause of action in the present divorce proceedings, which was stated to be expiry of two years period after decision in the earlier Hindu Marriage Petition which was decided on 5-3-1968, can be said to be the same as the cause of action in the earlier case?
(4) Whether the Lower Appellate Court was right in reversing the judgment of trial Court specially in view of the fact that the husband is craving for a decree of divorce since last 20 years and admittedly, the marriage parties are living apart for a period of more than 20 years?
2. The matter was heard for quite some time on 26-11-2007. No body appeared for respondent – Wife and therefore matter was adjourned to today. Today again the learned Counsel representing respondent – Wife is not available. On last date Advocate V.V. Bhangde had pointed out that the appellant-Husband is more than 75 years in age and his wife is also above 65 years and both have been staying separately since last about 40 years, he stated that after the matter was listed for final hearing he had contacted Advocate Shri M.N. Belekar who represents respondent – Wife and the said Advocate informed him that the respondent Wife had not contacted him for quite some time and he was taking steps to withdrew vakalatnama. However, till date the said Advocate has not filed any application or counsel note pointing out these developments to this Court.
3. Advocate Bhangde has pointed out the judgment dated 8-2-1977 delivered by this Court in Second Appeal No. 385/1977 and reported at 1977 Mh.L.J. 453, Shantabai Prabhakar Kothale v. Prabhakar Atmaram Kothale, which holds that as the present appellant/husband did not respond to letter written by decree holder-respondent Wife and therefore avoided to abide by the decree for restitution of conjugal rights obtained by her was debarred from seeking decree of divorce in view of provisions of Section 23(1)(a) of the Act. He contends that subsequent judgment of Hon’ble Apex Court in the matter , Dharmendra Kumar v. Usha Kumar was pointed out to the trial Court as also the Appellate Court and the trial Court has held that the judgment dated 8-2-1977 in Second Appeal No. 385/1977 was not relevant for adjudication as there was recurring cause of action in favour of the present appellant/husband. The Appellate Court in the impugned judgment in this appeal has not agreed with the said logic and has held that the judgment of Hon’ble Apex Court in the matter of Dharmendra Kumar (supra), do not alter the law and therefore the judgment in Second Appeal between the parties delivered on 8-2-1977 operates as res judicata.
4. The facts are being borrowed from the judgment reported in Shantabai Prabhakar Kothale v. Prabhakar Atmaram Kothale, for convenience. The present appellant and respondent have been married on 30-5-1955 and they resided together till 1958 and on 31-5-1958 there was separation. Both of them charged each other for such separation. On 4-8-1967 the respondent Wife applied for restitution of conjugal rights under Section 9 of the Act, vide Hindu Marriage Petition No. 89/1967, which came to be decreed in her favour on 5-3-1968. In the meanwhile the present appellant – Prabhakar had filed another application vide Application No. 96/1967 on 12-8-1967 seeking judicial separation. The said request of judicial separation was taken up for hearing after the adjudication in restitution of conjugal rights proceeding and on 29-8-1968 Prabhakar withdrew his application. On 30-4-1968 Shantabai filed another proceeding bearing No. 77/1968 under Section 25 of Hindu Marriage Act for permanent alimony, which was granted on 10-3-1969. Two years after the decree of restitution of conjugal rights i.e. 7-3-1970 Prabhakar applied for divorce under the amended provision of Section 13(1A) of the Act giving reasons that in spite of decree of restitution of conjugal rights parties have not started residing together. The Civil Judge, Senior Division, Nagpur who decided the said proceeding came to the conclusion that the present appellant/husband was taking advantage of his own wrong and there was no cohabitation between the parties for a period of two years because of his fault. It therefore, refused divorce to Prabhakar. Prabhakar then went in Appeal before the District Judge, who set aside that order and present respondent – Shantabai then approached this Court in Second Appeal No. 385/1977. The said Second Appeal has been allowed on 8-2-1977 and this Court has found in paragraph No. 28, that in view of the cardinal principle that a man should not be allowed to take advantage of his own wrong incorporated under Section 23(1)(a) granting decree to Prabhakar would constitute putting premium on his own wrong. It therefore, allowed the Second Appeal and dismissed the proceedings for divorce initiated by Prabhakar on 7-3-1970.
5. This judgment in Second Appeal is dated 8-2-1977 and the Hon’ble Apex Court in case between Dharmendra Kumar (supra), on 19-8-1977 considered the provision of Section 23(1)(a) and Section 13 (1A)(ii). In view of later judgment and also as there is no cohabitation between the parties for a period of more than 2 years after 8-2-1977, on 19-2-1979 the present appellant Prabhakar filed another application under Section 13(1A)(ii) for grant of divorce. As already stated above, the trial Court granted the decree and Appellate Court has reversed it.
6. Advocate Shri Bhangde, in the above facts has contended that the judgment of Hon’ble Apex Court in Dharmendra Kumar (supra), has not been rightly understood or appreciated by the Appellate Court. He contends that the facts in appeal before the Hon’ble Apex Court were identical and the learned Appellate Court has failed to note that the law on the point underwent change inasmuch as the Hon’ble Apex Court made distinction between a wrong on the part of any of the spouse contemplated by Section 23(1)(a) and statutory right made available to him under Section 13(1A)(ii) of the Act. In support of his contention he has also invited attention to the earlier judgment between the parties reported in Shantabai Prabhakar Kothale v. Prabhakar Atmaram Kothale (supra) and the judgment of Hon’ble Apex Court in the case of Dharmendra Kumar (supra). With the assistance of the judgment of Hon’ble Apex Court , Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy and , Shakuntala Devi v. Kamla and Ors. he contends that change in law is a relevant factor and res judicata cannot and does not apply for reasons mentioned therein, when such an issue again crops up for consideration. He states that Section 13(1A)(ii), confers a statutory right upon the present appellant and the said right is available to him as there was no resumption of cohabitation for a period of two years after 8-2-1977. He contends that the said right which becomes available to him could not have been therefore held as subject to provisions of Section 23(1)(a) in view of the clear mandate of the Hon’ble Apex Court.
7. In view of the discussion above, it is not necessary for me to refer to the judgment of this Court reported at Shantabai Prabhakar Kothale v. Prabhakar Atmaram Kothale (supra). This Court there held that mere silence on part of the present appellant to respond to the written request made by the wife for cohabitation was wrong as contemplated under Section 23(1)(a) and was sufficient to refuse him the relief of divorce. In (supra), the decree for restitution of conjugal rights was obtained by the respondent wife Usha Kumar before the Hon’ble Apex Court. The said decree was dated 27-8- 1973. As there was no cohabitation, she on 28-10-1975 presented a petition under Section 13(1A)(ii) for divorce. The period of two years mentioned in Sub-clause (ii) was reduced to one year in 1976 and in the facts before the Hon’ble Apex Court, this amendment was not relevant. The said request for grant of divorce made by the wife was opposed by the husband Dharmendra Kumar, who in his written statement took a plea that he made attempts to comply with the decree of restitution of conjugal rights by writing several letters to the petitioner wife and also by inviting her to live with him, but, wife Usha Kumar refused to receive some of the letters and never replied to those, which she received and thus she herself prevented restitution of conjugal rights and was thereafter making capital out of her own wrong. The Hon’ble Apex Court has considered the arguments in this respect and thereafter has made reference to the judgment of Delhi High Court in the case of Gajna Devi v. Purushottam Giri , and in fact the Hon’ble Apex Court has reproduced paragraph No. 12 in the said judgment of Delhi High Court. The said paragraph reproduced by Hon’ble Apex Court reads as under:
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 provision 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 13(1A) nugatory.
…the expression “petitioner is not in any way taking advantage of his or her own wrong” occurring in Clause I(1) of Section 23(1) of the Act does not apply to taking advantage of the statutory right to obtain dissolution of marriage which has been conferred on him by Section 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.” Thereafter, in paragraph No. 4 the Hon’ble Apex Court has again reproduced the defence taken by the husband Dharmendra Kumar, and has expressed its conclusion as under:
4. 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 other 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. The appeal is therefore dismissed but without any order as to costs.
8. The above consideration of issue by the Hon’ble Apex Court therefore, clearly shows that the Hon’ble Apex Court has interpreted the words in Section 23(1)(a) as not meant to defeat the statutory right to obtain dissolution of marriage which has been conferred on spouse by Section 13(1-A). It has been held that in such a case party is not taking advantage of his wrong but, of legal right following upon the passing of a decree and failure of the parties to comply with the decree. It has been further observed that it would be unreasonable to think that the relief which is available, to spouse against whom a decree for restitution has been passed, should be denied to the one who does not insist for compliance with the decree passed in his or her favour. “Wrong” within the meaning of Section 23(1)(a) has been held to imply something more than a mere disinclination to agree to an offer of reunion. These words and findings in judgment clearly show that mere disinclination or silence upon receipt of letters inviting spouse for cohabitation has not been accepted to constitute a wrong under Section 23(1)(a), so as to disentitle such spouse, keeping only silence, to the benefit of statutory right flowing from Section 13(1-A). I therefore, find that in matter before me the Appellate Court was not right in holding in impugned judgment that there was no change in law.
9. In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy (supra), the appellant before the Hon’ble Apex Court constructed a building on land in response to lease granted by the respondent. He applied for determination of standard rent under Section 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and Civil Judge dismissed it on the ground that Act did not apply to open land let out for constructing building and this order was affirmed in Revision. A contrary view was then taken by this Court, reported in ILR 1956 Bom. 827 and hence the appellant filed fresh petition in the Court of Small Causes, as the area in which the land was situated was by then included within the limits of Greater Bombay. The trial Court rejected his application on the ground that question whether Act applied to the case was res judicata and it was finally decided by the High Court between the same parties as regards the same land in earlier application for fixation of standard rent. This order was confirmed by the High Court and the matter went in Appeal before the Hon’ble Apex Court. The Hon’ble Apex Court has quoted 7 principles to find out whether res judicata will be attracted or not. Principle laid down in paragraph No. 7 is relevant for the present purpose, and it reads as under:
7. Where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same parties: Tarini Charan Bhattacharjee’s case (supra). It is obvious that the matter in issue in a subsequent proceeding is not the same as in the previous proceeding, because the law interpreted is different.
In paragraph No. 12, the Hon’ble Apex Court has observed that the decision of Civil Judge, Junior Division, Borivali that he had no jurisdiction to entertain the application for determination of standard rent, was clearly erroneous and if the decision in the previous proceeding be regarded as conclusive, it will assume the status of special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of Rules declared by the Legislature. In Shakuntala Devi v. Kamla and Ors. one Uttamdasi had made certain alienation and the appellant before the Hon’ble Apex Court filed suit challenging the said alienation seeking a decree for declaration that the said alienation made by Uttamdasi would not affect her reversionary right. The suit was decreed by the trial Court on 12-7-1961 and appeal filed by Uttamdasi was dismissed on 25-1-1963. It is to be noted that Uttamdasi had sold the property on 28-11-1958, after coming into force of Hindu Succession Act, claiming to be absolute owner of said property. On 24-5-1975 Uttamdasi gifted the property already sold by her in 1958, in favour of respondent No. 5 before the Hon’ble Apex Court. The appellant before the Hon’ble Apex Court again filed a suit challenging the said alienation and seeking declaration that the said alienation by Uttamdasi would not affect her reversionary right. The trial Court dismissed the suit, but the appeal preferred by the appellant was accepted by the First Appellate Court and gift in favour of respondent No. 5 was held to be void ab-initio and declaration as sought for by the appellant was granted. The decree was not put to further challenge. It is also relevant to note that said Uttamdasi had gifted part of the property in favour of respondent No. 5 by will on 27-12-1986 and she died on 1-1-1987. After death of Uttamdasi the appellant in exercise of her reversionary right claimed possession on the basis of two earlier declaratory decrees obtained by her. Trial Court dismissed the suit on 22-8-1989 by placing reliance upon the judgment of Hon’ble Court in the case of V. Tulasamma v. Shesha Reddy , holding that though the suit property was given to his wife by the original owner Hirday Ram (grand father of appellant before the Hon’ble Apex Court), as limited owner, but in view of Section 14(1) of the Hindu Succession Act, Uttamdasi became the absolute owner of the suit property and had a right to alienate the same by way of gift, Will or sale. The appellant before the Hon’ble Apex Court challenged the dismissal of her suit by First Appeal which came to be dismissed on 30-9-1991 and the Appellate Court held that the earlier declaratory decrees obtained by the appellant did not operate as res judicata. Second Appeal preferred by the appellant was also dismissed by the High Court which observed that the declaratory decree of 1978 in Second suit filed by the appellant was given after interpretation of an declaration of law ignoring the law laid down by the Hon’ble Apex Court in V. Tulsamma’s case (supra), and a contrary interpretation in case of Karmi v. Amru was accepted. The High Court held that the declaratory decrees were erroneous on the point of law and therefore cannot operate as res judicata. In paragraph No. 8 of the reported judgment the Hon’ble Apex Court has stated that the question for its consideration as to whether the finding of High Court in impugned judgment, that earlier decrees obtained by the appellant being declaratory in nature would not operate as res judicata in her favour, was correct in law or not. In paragraph No. 16, the Hon’ble Apex Court has held that as the two declaratory decrees obtained by the appellant were contrary to law laid down by it in V. Tulsamma ‘s case (supra), it was open to the defendants, as rightly held by the High Court to challenge those declarations and avoid declaratory decrees, if they succeed in such challenge. The Hon’ble Apex Court has concluded that the High Court was right in holding that the declaratory decrees obtained by the appellant being contrary to the judgment in V. Tulsamma’s case would not be of any assistance to the appellant.
10. Both the above judgments of Hon’ble Apex Court therefore clearly show that change in interpretation or understanding of law has been held to be a relevant circumstance to hold that any declaration which took a view contrary to such later interpretation or understanding would not operate as res judicata in subsequent cause and its adjudication. In the present case, it is apparent that on 19-8-1977 the Hon’ble Apex Court expressly construed the provisions of Section 23(1)(a), particularly the words “taking advantage of his or her own wrong or disability” used in Section 23(1)(a) of Hindu Marriage Act and its conclusion or interpretation of those words is already mentioned by me above. The said interpretation is contrary to the application of mind and meaning ascribed to said provision by this Court in Shantabai Prabhakar Kothale v. Prabhakar Atmaram Kothule (supra). The application for divorce under Section 13(1-A)(ii) in present matter has been filed on 19-2-1979 i.e. more than two years after the said judgment in Second Appeal by this Court. It is to be noted that the requirement of waiting for two years earlier existing in Section 13(1-A)(ii) has been brought down to one year in 1976 itself. It is admitted position that there was no cohabitation between the parties after 8-2-1977 and till 19-2-1979. The trial Court therefore has found that a fresh cause of action accrued in favour of the present appellant. I also find that as per the law existing after 19-8-1977, a fresh cause of action accrued in favour of the present appellant on 19-2-1979 as in spite of restitution of conjugal rights decree parties had not cohabited. It is to be noted that though this Court has delivered judgment on 8-2-1977 in Second Appeal No. 385/1977, the proceeding there started on an application filed on 7-3-1970 by the present appellant. It is therefore, clear that after 7-3-1970 till 19-2-1979 there was no cohabitation. It is further clear that appellant has not been held to be at fault for this later not staying together. At the most it can be held that he did not take any positive steps towards cohabitation and remained only a mute spectator. But that is not sufficient as per law prevailing during this period to deprive him of his right. Not only this, as already held above even if this accrual of fresh cause of action in favour of the present appellant is ignored, it is more than clear that the earlier judgment between the parties was passed upon wrong interpretation or incorrect interpretation and the interpretation of those provisions on 19-8-1977 by the Hon’ble Apex Court changed the position and earlier adjudication between parties therefore could not have been held as res judicata between them in subsequent petition. The lower Appellate Court was therefore not correct in taking a contrary view of the matter.
11. As I have already pointed out in the opening para of this judgment, the husband is about 75 years of age now and the respondent wife is more than 65 years of age. They were married in 1955 and admittedly have not stayed together since 1958. It is therefore, clear that there has been no cohabitation since last about 49 years. Advocate Bhangde has tried to contend that ignoring the entire legal issues involved in the matter such a long separation itself must be held to be sufficient to grant decree of divorce by holding that the marriage between the parties has been irretrievably broken.
12. However, I find that in view of the findings reached above, it is not necessaryio consider this aspect in the matter or to decide question No. 4 above. Accordingly, the questions at Sr. Nos. 1 to 3 raised in the appeal memo are answered in favour of the present appellant – husband and the application dt. 19-2-1979 moved by him for grant of divorce is hereby allowed. The marriage between the appellant and respondent solemnized on 30-5-1955 is hereby dissolved by decree of divorce. The trial Court is accordingly directed to issue appropriate decree in accordance with law.
13. As the respondent wife is very old and she had been given some maintenance in other proceedings, and also as she is not appearing in the present matter her right to seek permanent alimony or hike in it from the appellant/husband is kept alive. She is at liberty to move appropriate application for the said purpose. With this, the Second Appeal is allowed. Rule is made absolute in aforesaid terms with no order as to costs.