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Case Number

Appeal against Order No. 78 of 1980

Attorney(S)

For the Appellant: M. Chandrasekhar Rao, Marie Desai, Advocates.

Judges

Ramanujulu Naidu
Rama Rao, JJ.

Acts

sub - clause (a) , sub - clause (b) or sub - clause (c) of clause (ii) of section 5

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Smart Summary

Judicial Opinion Summary — Rama Rao, J.

Factual and Procedural Background

The petitioner (appellant) filed O.P. No. 76 of 1977 under Section 13(1‑a)(ii) of the Hindu Marriage Act, 1955 seeking dissolution of marriage on the ground that the respondent (wife) did not comply with an earlier decree for restitution of conjugal rights in O.P. No. 36 of 1976.

The marriage was celebrated on 27‑4‑1975. The respondent lived with the petitioner for a few days after marriage, then left and returned to her parents' house at Gudavalli village. The petitioner attempted to persuade her to return; when she did not, he filed O.P. No. 36 of 1976 (restitution of conjugal rights). That petition resulted in a decree on 9‑7‑1976. After the respondent allegedly failed to comply with that decree, the petitioner filed an execution petition (E.P. No. 35 of 1977) and later O.P. No. 76 of 1977 for divorce. An amendment alleged that the respondent deserted the petitioner for a continuous period of not less than two years.

In her counter‑affidavit the respondent stated that the petitioner and his father demanded money (an initial amount of Rs. 14,000 paid earlier and a further Rs. 6,000) as a condition to allow her to live with the petitioner; she alleged she was willing to live with him and had consented in court, but the petitioner refused to accept her unless the balance was paid. She also alleged the petitioner procured a false endorsement of refusal on the execution notice and obtained an ex parte order in E.P. No. 35/1977; she moved to set aside that order and the execution petition was later dismissed for default.

The court below (trial court) found that the petitioner alone was at fault before and after the restitution decree, that the respondent was willing to live with him, and that the petitioner had obstructed the respondent and engaged in deceptive conduct to obtain grounds for divorce.

Legal Issues Presented

Whether the expiry of one year from the date of a decree for restitution of conjugal rights (Section 13(1‑a)(ii)) is by itself sufficient to entitle the petitioner to dissolution of the marriage.
Whether Section 13(1‑a) operates independently or is subject to the proviso in Section 23(1)(a) of the Hindu Marriage Act, 1955 (i.e., whether a petitioner is disentitled to relief under Section 13(1‑a) by reason of having taken advantage of his or her own wrong).

Arguments of the Parties

Appellant's Arguments

The appellant's counsel argued that the lapse of one year from the date of the decree for restitution of conjugal rights is sufficient in itself to entitle the petitioner to seek dissolution under Section 13(1‑a)(ii), and that since more than one year had passed the petitioner was automatically entitled to divorce.
The appellant relied on prior decisions (including Varalakshmi v. N. V. Hanumantha Rao and the Punjab & Haryana High Court full bench in Bimala Devi v. Singh Raj) supporting the proposition that Section 13(1‑a)(ii) operates as a time‑based entitlement.

Respondent's Arguments

The respondent's counsel contended that Section 13(1‑a)(ii) is subject to Section 23(1)(a), and that reprehensible conduct by the petitioner before and after the decree disentitles him from relief.
The respondent argued that after the expiry of one year the decree for dissolution does not follow automatically where the petitioner has engaged in misconduct that would amount to "taking advantage of his or her own wrong" under Section 23(1)(a).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Varalakshmi v. N. V. Hanumantha Rao	Interpreted s.13(1‑a) to allow divorce by efflux of time (no resumption of cohabitation) when viewed in isolation; impact of s.23(1)(a) was not considered in that decision.	The court noted this case as an example of decisions treating s.13(1‑a) in isolation; it was discussed but distinguished because s.23(1)(a) was not considered there.
Suryakantham v. M. Rangarao	Held that the husband was entitled to divorce even though he had not taken steps to execute the decree for restitution of conjugal rights (i.e., s.13 considered without s.23 impact).	Noted as a decision that did not consider s.23(1)(a); the present court recorded it but did not follow the view that s.13 operates entirely without constraint from s.23.
Bimala Devi v. Singh Raj (Punjab & Haryana High Court, Full Bench)	Held that under s.13(1‑a)(ii) either party can apply for dissolution after one year of a restitution decree; non‑compliance with the decree or steps taken to comply do not per se mean a party is taking advantage of his/her own wrong.	The opinion cites this full bench decision as a key authority that treated s.13(1‑a)(ii) liberally; the court analysed its reasoning alongside other authorities.
Delhi High Court (AIR 1977 Del. 178) — as discussed in the opinion	Held that the expression in s.23(1)(a) does not apply to taking advantage of a statutory right under s.13(1‑a), but subsequent facts/circumstances after the prior decree could disentitle a spouse under s.23(1)(a).	The present court endorsed the Delhi High Court's harmonising approach (that s.23(1)(a) can disqualify a spouse only where subsequent misconduct is sufficiently serious).
Dharmendra Kumar v. Usha Kumar / Gajna Devi v. Purushotam Giri (as cited)	Attempts to harmonise ss.13(1‑a) and 23(1)(a): statutory right to dissolution by efflux of time is not itself 'taking advantage of one's own wrong', but subsequent facts may disentitle a spouse under s.23(1)(a).	The court relied on this line of reasoning to hold that s.23(1)(a) can limit relief under s.13(1‑a) where misconduct after the earlier decree is of sufficient gravity.
AIR 1977 S.C. 2218 (supra) — (Supreme Court decision referred to in the opinion)	Held that mere disinclination to reunite is not enough to constitute 'wrong' under s.23(1)(a); to deny relief there must be misconduct serious enough to justify denial of divorce—even where there is failure to comply with a prior decree.	The present court treated the Supreme Court's statement as authoritative, endorsing the requirement that the misconduct be sufficiently serious to disentitle a spouse; it found the petitioner in the present case to have engaged in such misconduct.

Court's Reasoning and Analysis

The court first examined the text and purpose of Section 13(1‑a) and Section 23(1)(a) of the Hindu Marriage Act, 1955 as they bear on dissolution of marriage following a decree for restitution of conjugal rights. Section 13(1‑a) is a time‑bound provision that confers a statutory right to seek divorce after one year from a decree for restitution (or judicial separation) if cohabitation is not resumed. Section 23(1)(a) requires the court to deny relief where the petitioner is "in any way taking advantage of his or her own wrong."

The central legal question — whether s.13(1‑a) is subject to s.23(1)(a) — was resolved by surveying conflicting authorities. The court reviewed decisions that treated s.13(1‑a) in isolation (Varalakshmi; Suryakantham) and decisions that attempted harmonisation (Punjab & Haryana full bench in Bimala Devi; the Delhi High Court in AIR 1977 Del. 178; and Supreme Court authority AIR 1977 S.C. 2218).

The court interpreted the precedents as follows (as set out in the opinion):

The Punjab & Haryana decision emphasised liberalisation of divorce under s.13(1‑a) and treated non‑compliance with the prior decree as not automatically constituting "taking advantage of one's own wrong."
One line of reasoning (Chinnappa Reddy, J., in an earlier case) suggested s.13(1‑a) is not subject to s.23(1)(a), treating s.13(1‑a) as creating a right based on a "broken‑down marriage" rather than "wrong or disability."
The Supreme Court and the Delhi High Court took a more nuanced, harmonising approach: s.23(1)(a) applies to proceedings under the Act and therefore can operate to deny relief obtained under s.13(1‑a) where the petitioner has engaged in misconduct serious enough to constitute "wrong" within s.23(1)(a); mere disinclination to reunite is insufficient.

On that basis the court concluded that Section 23(1)(a) "holds the reins" over Section 13(1‑a) — that is, the statutory time entitlement under s.13(1‑a) is subject to the limitation that a petitioner cannot take advantage of his or her own wrong. The court therefore rejected the extreme view that s.13(1‑a) operates entirely independently of s.23(1)(a).

Applying these principles to the facts before it, the court accepted the trial court's factual findings that the petitioner had engaged in obstructive and deceptive conduct after the restitution decree. The opinion records specific findings relied upon by the court below: the petitioner allegedly secured a false endorsement of refusal on the execution notice, obtained an ex parte order, delayed and slowed the respondent's effort to set aside the ex parte order so that the execution petition was dismissed for default, and repeatedly pressed monetary demands (the balance Rs. 6,000) as a condition for reunion. Documentary evidence (letters from the respondent and the college principal) showed the respondent actively sought reunion and mediated settlement, while the petitioner's conduct appeared motivated by monetary considerations and not by genuine attempts at reconciliation.

Given the requirement from higher authority that misconduct must be "serious enough" to disentitle a spouse, the court found that the petitioner's conduct met that threshold. Consequently, despite the efflux of one year after the restitution decree, the petitioner had forfeited the statutory entitlement to a decree of divorce under Section 13(1‑a)(ii) by virtue of his conduct invoking Section 23(1)(a).

Holding and Implications

Holding (dispositive): The appeal is dismissed with costs.

Implications (direct effect on the parties and legal consequence as explained in the opinion):

The petitioner (appellant) is denied the relief of dissolution of marriage under Section 13(1‑a)(ii) because the court found he had engaged in reprehensible conduct that disentitles him under Section 23(1)(a).
The decision applies a harmonising approach between Sections 13(1‑a) and 23(1)(a): while s.13(1‑a) provides a time‑based entitlement to seek divorce after one year of a restitution decree, that entitlement is subject to denial if the petitioner is taking advantage of his/her own wrong — and the misconduct must be serious enough to warrant denial.
The court expressly declined to follow the view (expressed by Chinnappa Reddy, J., in a prior decision) that s.13(1‑a) is entirely independent of s.23(1)(a); instead, it endorsed the harmonising approach reflected in the Delhi High Court and the Supreme Court authority cited in the opinion.

Note: This summary is limited to the facts, arguments, authorities and reasoning contained in the provided opinion and does not add or infer information not present in that text.

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Pavuluri Murahari Rao v. Povuluri Vasantha Manohari .

Rama Rao, J.:-

(1) The appellant is the petitioner in o. P. 76 of 1977. The petition was filed under sec. 13 (1 - a) (ii) of the hindu marriage act, 1955 seeking dissolution of the marriage on the ground that the respondent - wife did not comply with the earlier decree passed for restitution of conjugal rights in o. P. No. 36 of 1976,

(2) The essential averments in support of the petition are that the marriage was celebrated on 27 - 4 - 1975 and subsequent to the marriage the respondent - wife came and lived with the petitioner for a few days, and left the house and thereafter the petitioner made several attempts to persuade the retpondent to come and live with him, but she refused to do so and continued to stay at her parents house at gudavalli village and the petitioner was obliged to file o. P. No. 36 of 1976 on the file of the court of the subordinate judge, tenali, for restitution of conjugal rights against the respondent. The petition was ordered on 9 - 7 - 1976. As the respondent wife failed to comply with the decree, e. P. No. 35 of 1977 was filed by the petitioner and a notice was issued to the respondent. Inspite of the same she refused to join and live with him. Therefore, the petition for dissolution of marriage was filed. Subsequently, an amendment petition was also filed to the effect that the respondent deserted the petitioner for a continuous period of not less than two years.

(3) In the counter - affidavit filed by the respondent - wife it is stated that the petitioner refused to allow her to come and live with him as her father did not pay the amount demanded by the petitioner. The respon dent's father paid an amount of rs. 14,000/ - for her benefit to the father of petitioner and the said amount was utilised for their own family benefit and when the petitioner and his father again demanded to pay the balance amount of rs. 6,000/ - her father insisted that account should be rendered for the amount already paid to them. It is also stated that her father agreed to deposit the sai'd balance amount of. Rs. 6000/ - in her name in any bank. But the petitioner and his father refused to agree for such a course and insisted that hey would not allow her to come and live with the petitioner unless and until the balance amount of rs. 6000/ - was paid to them. It is further stated that she was always willing to go and live with the petitioner, and that when the petitioner filed o. P. No. 36/76 she appeared before the court and gave her consent to live with the petitioner and oh that basis the court allowed o. P. 36/76. Subsequent to the passing of the said decree, she made efforts to go and live with the petitioner, but the petitioner alone was refusing to take her back unless the balance amount of rs. 6,000/ - was paid to him. Therefore, she was not at fault in complying with the directions given by the court in o. P. No. 36/76. It is also stated that in the execution - petition filed against her in o. P. 36/1976 the petitioner managed to obtain a false endorsement of refusal on the notice and set her ex - parte in those proceedings and after coming to know about the same a petition was filed for setting aside the ex - parte order and in the meanwhile the execution - petition was dismissed for default. It is further stated that the petitioner was never willing to take her back and live with her and o. P. 36/1976 and execution petition no. 35/77 were filed only with a view to create a ground for divorce and as such the present petition is not maintainable. It is also stated that she never deserted the petitioner. The sole issue for consideration before the court below was whether the petit oner is entitled for dissolution of the marriage under sec. 13 (1 - a) (ii) of the hindu marriage act, 1955. On a survey of decisions, the court below came to the conclusion that sec. 13 (1 - a) (ii) is subject to the provisions of sec. 23 (1) (a) of the hindu marriage act, 1955. The court below held that the petitioner alone was at fault both prior to the passing of the decrte in o. P. 36/1976 as well as subsequent to the same and that he alone was causing obstructions to the respondent to come and live with him and that the respondent was always ready and willing to go and live with him and lead marital life. The finding was arrived at by the court below that the petitioner managed to obtain a false endorsement of refusal on the notice in e. P. 35/1977 and that the bona fides of the respondent are evident from the prompt action taken by her in filing a petition for setting aside the ox parte order passed against her in f:p. 35/1977.

(4) The learned counsel appearing for the appellant contended that the expiry of one year from the date of the decree for restitution of conjugal rights is by itself sufficient to enable the petitioner - appellant to ask for dissolution of marriage under sec. 13 (1 - a) (ii) of the hindu marriage act, 1955, and that this petition was filed more than one year after the decree was passed and as such the decree for dissolution of marriage is automatic. The learned counsel for the respondent contended that sec. 13 (1 - a) (ii) is subject to the provisions of sec. 23 (1) (a) of the act, and that the reprehensible conduct displayed by the petitioner both anterior to and also subseqent to the decree disentitles the petitioner to seek for relief of dissolution of the marriage and that after the expiry of one year the decree for dissolution does not follow automatically in view of misconduct.

(5) To appreciate the rival contentions it is necessary to have a close - up of sec. 13 (1 - a) and see. 23 (1) (a) of the hindu marriage act, 1955 to, the extent relevant:

"13. Divorce - (1) any marriage solemnized, whether before or after the commencement of this act, may, oa a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party. (1 - a) 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) that there has been no resumption of co - habitation aa between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (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."

"23. Decree in proceedings:in any proceedings under this act, whether defended or not, if the court is satisfied that; - (a) any of the grounds for relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub - clause (a) , sub - clause (b) or sub - clause (c) of clause (ii) of section 5 in any way taking advantage of his or her own wrong of disubility for the purpose of such relef; and"

Section 13 (1 - a) apparently and substantially is aimed at enabling the husband or the wife to seek divorce on the expiry of period of one year from the date of decree of judicial separation or restitution of conjugal right. When considered in isolation this is time bound operative provision and if the decree for judicial separation or restitution of conjugal rights continues to be intact for one year without scmblane of conciliation or reapprochment the right to either party to get divorce ripens. The contronersy in this case centres round the interaction of sec. L3 (1 - a) and sec. 23 (1) (a) and whether sec. 13 (1 - a) is bogged down or controlled by sec 23 (1) (a) and the stretch of 'wrong' adumbrated in sec23 (i) (a) or whether sec (13 (1 - a) works out independently without alignment with sec. 23 (1) (a).

(6) The learned counsel for tho petitioner invited to the decision of this court reported in n. Varalakshmi v. N. V. Hanumantha rao. In this case the husband filed a petition against the wife for judicial separation on she ground that the wife without reasonable cause deserted him. The decree for judicial separation was passed on 2 - 12 - 1966. Cn 9 - 12 - 1968 the petition was filed by the husband for divorce. Admittedly there was no resumption of co - habitation. It was contended on behalf of the wife that she made attempts for resumption of co - habitaiion and the husband thwarted the attempts and as such the party who obtained decree for judicial separation is not entitled for decree for divorce. The division bench consisting of c. H. Sheth and jeevan reddy, jj held on interpretation of sec. 13 (1 - a) of the hindu marriage act, 1955 that the husband was entitled to decree for divorce in the absence of resumption of co - habitation by volume of both the parties within two years after the decree for judicial separation was passed. In this decision the impact of sec. 23 (1) (a) was not considered and on the terms of sec. 13 (1 - a) it was held that the party is entitled to divoce by efflux of time in the absence of reconciliation. Again suryakantham v. M. Rangarao this court did not consider the impact of sec. 23 (1) (a) and it was held that the husband is entitled for divorce even though ho did not take steps to execute the decree for restitution of conjugal rights. The learned counsel for appellant heavily relied upon the full bench decision of the punjab and harayana high court reported in bimala davi v. Singh raj. In this case after marriage on 8 - 11 - 1968 the wife stayed with her husband for a day and returned to her parents house. The wife filed a petition under sec. 12 of the hindumarriage act 1955 which was dismissed later the husband filed a petition for restitution of conjugal rights on the ground that the wife has withdrawn from his society without reasonable cause. This application was allowed by an order dt, 12 - 11 - 70. The appeals filed as against the laid order were dismissed on 25 - 10 - 1972. On 21 - 12 - 1972 the wife filed a petition under sec. 13 (1 - a) (ii) of the act claiming, a decree for divorce. In the context of considering the issue whether the provisions of sec. 13 (1 - a) arc subject to sec. 23 (1) (a) of the act, dhillon, j held as follows at page ; 74:

"we are therefore, inclined to hold that in a case covered under s. 13 (1 - a) (ii) of the act, either of the parties can apply for dissolution of marriage by a decree for divorce if it it able to show 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 proceedings in which they were parties. The plea that the party against whom such decree was passed failed to comply with the decree or that the party in whose favour thedecree was. Passed took definite steps to comply with the decree and the defaulting party did not comply with the decreeand therefore such an act be taken to he taking advantage of his or her own wrong would out he available to the party, who is opposing the grant of divoree under cl. (ii) of sub. S. (1) ot s. 13 of the act"

At page 175 it is observed as follows; -

"as has been pointed out, the policy of the legislature by making amendments to the provisions of s, 13 appears to be to liberalise divorce so that the broken marriages are dissolved and the parties to the marriage are freed from the bonds as they are unable to live together inspite of opportunities having been given to resolve the differences and to live together."

The above passages indicate that sec. 13 (1 - a) was considered in isolation and regarding the impact of sec. 23 (1) (a) it is held as follows at pege 176: -

"it may, however, be observed that it may not be understood a have been held that the provisions of s, 13 (1 - a) are not subject to the provisions of s,23 (1) (a). But, in fact what we have held is that a defaulting spouse, who has suffered a decree for restitution of conjugsl rights, cannot be held to be taking advantge of his or her own 'wrong' merely be cause heor she has failed to comply with the decree of restitution of conjugal rights. Human ingenuity being what, it is, it cannot be disputed that many cases may arise where notwithstanding that a ground for divorce exists, there may be something in the conduct of the petitioner which would be so reprehensible that the court would deny ts such a petitioner relief by way of divorce on the consideration that the petitioner was taking advantage of his or her own wrong"

The essence of the principle propounded is that the non - compliance with the decree simpliciter does not inhibit the party to ask for a relief of divorce but the party forfeits the right for such relief in the event of display of reprehensible conduct. Chinnappa reddy, 3. Concurring with the ultimate conclusion reached by dhtllon, j delivered a separate judgment wherein a divergent opinion is expressed regarding the impact of sec, 23 (1) (a) and it is observed as follows at pege 177:

"before 1964, the whole scheme of the act in relation to decrees for restitution of conjugal rights, judicial separation and divorce was based on the concepts of wrong and disability. The court was not to concern itself with the fact of breakdown of the marriage but with who had committed wrong or who was suffering from disability. It was in the context of the concept of wrong - disability that s. 23 (1) (a) provided that the court shall decree relief under the act only if any of the grounds for granting relief existed and the petitioner was not in any way taking advantage of his or her own wrong or disability for the purpose of such relief. The concept of wrong disability which was hitherto the sole basis of relief under the act has now, in part, given way to the concept of a broken - down marriage irrespective of wrong or disability. To my mind it is not permissible to apply the provisions of sec. 23 (1) (a) based as they are on the concept of wrong - disability to proceedings in which relief is claimed under s. 13 (1 - a) or sec, 13 - b based as they are on the concept of broken down marriage."

Again at page 17s it is held as follows:

"it is true that if s. 23 (1) (a) is applicable to proceedings based on s. 13 (1 - a) it is difficult to visualize what wrong other than not resumption of cohabitation or non - restitution of conjugal rights can preclude relief. But failure, at present, to contemplate such a situation is neither here nor there, since one cannot preempt all future situations. The only reasonable way of construing the provisions and giving effect to legislative intent is to say that s. 23 (1) (a) applies to cases based on the concept of wrong disability and not to s. 13 (1 - a) which is not based on that concept. At any rate, the wrong or disability contemplated by s, 23 (1) (a) it not the non - resumption of cohabitation or the non - restitution of conjugal rights which is the basis of s. 13 (1 - a)."

Chinnappa reddy, j held the efflux of time stipulated in sec. 13 (1 - a) is the starter for the crystalisation of right to seek divorce and the object of sec. 13 (1 - a) is to give clearance and neat exit to broken down marriage and it not subject to sec. 23 (1) (a). Inspired by the ratiocination of chinnappa reddy, j. , the learned counsel for the appellant contended that in view of the lapse of one year from the date of decree for restitution of conjugal rights the divorce is an automatic and necessary follow up. The learned counsel for the respondent contended that the delhi high court took a different view and that the view taken by chinnappa reddy, j is no longer good law in view of the decision of the supreme court in dharmendra kumar v. Usha kumar in gajna devi v. Purushotam giri the essential facts are that the ex pane decree for judicial separation was passed on 30 - 3 - 1966 at the instance of the husband. The petition was filed under sec. 13 (1a) of the act for divorce on 19 - 7 - 1972. The plea taken by wife was that there was resumption of cohabitation and the husband is not entitled to relief as he is taking advantage of his own wrong. The plea of resumption of co - habitation was negatived. The attempt at harmonising sec. 13 (1 - a) and 23 (1) (a) was made by misra, j, by holding that. Tht matrimonial offence which was foundation of the previous decree for separation or restitution of conjugal rights cannot be prassed into service as a defence against the relief sought but the existence of certain facts or circumstances relevant to the decree should be the criterion and it is observed as follows at page 183:

"in my view, 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 statutory right to obtain dissolution of marriage which has been conferred on him by s. 13 (1 - a) of the act subsequent to the passing of the decree for judicial separation or restitution of conjugal rights. In such a case, a party is not taking advantage of his own wrong but of the legal right following upon the passing of the decree and the failure of the parties to comply with the decree or resumption of cohabitation after its passing. Nevertheless, if after the passing of the previous decree, any other facts or circumstances occur, which in view of sub. S. (1) of s. 23 of the act disentitle the spouse from obtaining the relief of dissolution of marriage by a decree of divoree under s. 13 (1 - a) of the act, the same can be legitimately taken into consideration and must be given due effect. "

In air 1977 s. C. 2218 (supra) the wife was granted a decree for restitution of conjugal rights on 27 - 8 - 73. Two years after the said decree on 28 - 10 - 75 she presented a petition under sec. 13 (1 - a) (ii) of the act for dissolution of the marriage by a decree of divorce. The husband admitted that there was no restitution of conjugal rights between the parties subsequent to the passing of the decree but stated that he made attempts to comply with the decree by writing several registered letters to the wife inviting her to live with him. According to him the wife herself prevented the restitution of conjugal rights and seeks to make a capital out of her own wrong. In this context the interaction of sec. 23 (1) (a) and 13 (1 - a) (ii) is considered. Endorsing the view taken by the delhi high court in air 1977 del. 178 (supra) it is held as follows at page 2220.

"therefore, it would not be very reasonable to think 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 sec. 23 (1) (a) , the 'conduct alleged has to be something more than a mere disinclination to agree to an offer of reanion, it must bo misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled.

(7) In view of the prefatory portion in sec. 23 (1) (a) namely "in any proceedings under this act" the effect of sec, 23 (1) (a) is injected into all proceedings under the act unless there is exclusion expressly or by implication. Sec. 13 (1 - a) without the strings of sec. 23 (1) (a) contemplates the culmination of decree for divorce one year subsequent to the decree for judicial separation or restitution of conjugal rights and either party can seek the relief with immunity from being attributed with lapses or disablities the ouster of the applicability of sec. 23 (1) (a) is not discerned in sec. 13 (1 - a) and the reconciliation between the two provisions was done by the delhi high court in the interests of harmonious interpretation. In consonance with the projection of the concept of reprehensible conduct making a dent on unfettered sway of sec. 13 (1 - a) enunciated by dhillon, j in air 1977 punjab and harayana misra (3supra) , 167j. In air 1977 delil78 (2supra) held that the matrimonial offence constituting the foundation for the decree for restitution of conjugal rights or judicial separation cannot be exploited for defence against the petition for divorce but the facts or the circumstances subsequent to the former decree to disentitle the spouse from obtaining relief can be availed of in terms of sec. 23 (1) (a). This view is endorsed by the supreme court in air 1977 s. C. 2218 (supra) by holding that mere disinclination to respond to the offer of reunion is not sufficient but the display of misconduct which is serious, enough to come within the brackets of "wrong" should be shown. Though there is no reference to the decision of the panjab and haryana high court ia air 1977 s. C. 2218 (supra) it is patent that the view taken by dhillon, j regarding rtprehensible conduct is blessed by the supremo court and the extereme view taken by chinnappa reddy, j is toned down and not approved. We are unable to subscribe to the view taken by chinnappa reddy, j. Sec. 23 (1) (a) holds the reins over sec. 13 (1 - a) and the person cannot make capital out of own wrong and the re!ief will be denied in the event of this conduct notwithstanding the efflux of time stipulated in sec. 13 (1 - a).

(8) Heaving regard to the principles hereinbefore adverted to it has to be considered whether the petitioner contributed to misconduct and thereby forfeited the right to obtain the relief of dissolution of marriage. The court below held that the petitioner was at fault solely both prior to and sub quent to the decree in o. P. 36/1976. The conduct anterior to the decree should not be permitted to cast a shadow and the subsequent conduct alone is germane. The veiled intrigue by the petitioner to trap the respondent into a decree for dissolution ultimately is reflected from his conduct. The court below found that he managed to get refuial of endorsement on the notice in e. P. 35/1977 and when the wife was alerted and when she took steps to set aside the oxparte order the petitioner slowed down the process and the execution petition was dismissed for default on 11 - 7 - 1977. Exs. B - 9, b - 11 to b - 13 are letters $ent by the respondent subsequent to decree in o. P. 36/1976 requesting the principal of amaravathi college to intervene and settle the matter amicably. The factum of writing these letters is admitted by the petitioner in his letters in ex. B - 5 and b - 6. The principal also ent a letter ex. B - 7 to the respondent expressing his helplessness in the matter and infusing courage in her. Ex. B - 18 a letter dated 22 - 6 - 1977 sent by principal also discloses that the respondent was making efforts through mediators to go and live with the petitioner. The monetary aspect alone loomed large in the mind of the petitioner and his attempts at restitution of conjugal rights is a make believe affair and evolved as a stepping stone to get a decree for divorce. In the circumstances, it is obvious that the move of the petitioner throughout is prompted by consideration of getting money from the parents of the respondent and there is absolutely no trace of genuineness and he is trying to create and make out grounds for divorce with ulterior motive.

(9) In the result, the appeal is dismissed with costs. Pnr appeal dismissed.

Pavuluri Murahari Rao v. Povuluri Vasantha Manohari .

Judicial Opinion Summary — Rama Rao, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Pavuluri Murahari Rao v. Povuluri Vasantha Manohari .

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