V.K Gupta, J.:— This appeal is directed against the judgment and decree dated 28th November, 1984 in Matrimonial Suit No. 14 of 1984 whereby the learned Additional District Judge, 2nd court, Alipore, 24-Parganas dismissed the suit filed by the appellant-husband against the respondent-wife. The brief facts leading to the filing of the suit are that the appellant and the respondent were married on 4th July, 1973 accordingly to Hindu Rites. Right from the date of their marriage, the relation between the spouses became strained and estranged resulting in the appellant filing a suit for divorce under section 13 of the Hindu Marriage Act in 1976. This suit however was dismissed in 1978. On 26th November, 1982, the appellant obtained a decree for restitution of conjugal rights under section 9 of the Hindu Marriage Act against the respondent. Even though this decree was passed ex-parte, the respondent undoubtedly had the knowledge of the passing of the decree because she filed an application under section 25 of the Hindu Marriage Act and obtained an order of permanent alimony and maintenance from the court which had passed the aforesaid decree.
2. After the expiry of more than one year from the date the aforesaid decree under section 9 was obtained by the appellant, the appellant filed a suit for divorce on the ground contained in section 13(1-A)(ii) of the Hindu Marriage Act alleging that there has been no restitution of conjugal rights as between the parties for a period of one year and upwards after the passing of the decree for restitution of conjugal rights on 26th November, 1982 and therefore the appellant was entitled to the decree for divorce. The learned court below however dismissed the suit primarily and mainly on the ground that the appellant did not make any attempt to get the respondent back or to resume cohabitation and that in order to obtain a decree for divorce by dissolution of the marriage interims of section 13(1-A)(ii), the appellant had to satisfy the court that he necessarily wanted to live together and resume cohabitation with the respondent and that his sincerity and desire could not be fulfilled because of the refusal on the part of, or noncompliance of the order for restitution of conjugal rights by the respondent. The learned court below also referred to a judgment or this court in the case of Sm. Kanak Lata Ghose… v. Amal Kumar Ghose…. reported in AIR 1970 Cal 328 and another judgment of this court in the case of Sm. Mita Gupta… v. Prabir Kumar Gupta…. reported in AIR 1989 Cal 248 (corresponding to 93 CWN page-50).
3. Section 13(1-A)(ii) in so far as it is relevant for this purpose is reproduced below:
“13(1A) 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) ………………..
(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. Sub-section (1-A) of section 13 of the Act was substituted by the amendment Act No. 44 of 1964. Prior to the aforesaid amendment, Clauses viii and ix of section 13(1), provided for making of an application for obtaining a decree of divorce on the ground of non-restitution of conjugal rights after a decree to that effect had been passed by the court. In these two Clauses the expression used was to the effect that either party against when the decree has been made had failed to comply with such a decree. The judgment of this court in the case of Sm. Kanak Lata Ghose… v. Amal Kumar Ghose…. (supra) is not applicable to the facts of our case because that judgment was based upon the law as it stood prior to the amendment of section 13 by the Amendment Act No. 44 of 1964. As far as our case is concerned, it is equarely covered by sub-section 1A of section 13 of the Act. A bare perusal of clause (ii) of section 13(1-A) suggests that a decree for divorce can be obtained only on the ground 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 a decree for restitution of conjugal rights has been passed by a court. Undoubtedly, in our case the decree for restitution of conjugal rights was passed on 26th November, 1982 and the suit for divorce was filed much after the expiry of one year. Clause (ii) (supra) does not suggest that the appellant-husband either was required to take any steps after he had obtained the decree for restitution of conjugal rights or that he could be deemed to be guilty of any not of omission. The learned court below therefore was not correct in taking the view that since the husband-appellant did not try to bring back the wife to the matrimonial fold or that he lacked any sincerity in re-arranging the resumption of cohabitation with the respondent and therefore was not entitled to obtain the Decree for divorce. Plain meaning which has to be given to Clause (ii) is that once the decree for restitution of conjugal rights has been passed and after the passing of such decree there has not been any restitution of conjugal rights as between the parties for a period of one year and upwards, either party to the marriage may present a petition for obtaining divorce on that ground. It is not the case of the respondent that she was not award of the passing of the decree for restitution of Conjugal rights on 26th November, 1982. On the other hand, it is the own case of the respondent that she was aware of the passing of such decree and in fact had made an application for grant of permanent alimony and maintenance in terms of section 25 of the Act in the same suit in which the aforesaid ex-parte decree was passed. The learned court below therefore unnecessarily imported into the concept of the passing of the decree under section 13(1A)(ii), the element of some act of omission or commission on the part of the respondent and therefore wrongly dismissed the suit on that ground.
5. For the reasons aforesaid therefore we have no hesitation in setting aside the decree under appeal. The appeal is accordingly allowed and the judgment of the court below is set aside. We hereby accordingly pass a decree for divorce in favour of the appellant and against the respondent in terms of section 13(1-A)(ii) of Hindu Marriage Act. No order as to costs.
The decree may be drawn up as early as possibly.
M.K Basu, J.:— I agree.
Appeal allowed
R.B