Section 13(1A) of The Hindu Marriage Act, 1955

[(1A) Either party to a marriage, whether solemnised 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 cohabitation as 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.]

Smt. Bimla Devi D/O Bakhtawar ... vs Singh Raj S/O Dasondhi Ram

It appears that the provisions of Section 23(1)(a) of the Act cannot be invoked to refuse the
relief under Section 13(1A)(ii) of the Act on the ground of non-compliance 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. The contention of the
learned counsel for the respondent that if the provisions of Section 23(1)(a) are interpreted in
the manner as suggested above, the provisions of Section 23(1)(a) will become null and void
and will not be applicable to any proceedings, is without any merit. As would be seen, in
proceedings under Section 9 for restitution of conjugal rights, under Section 10 for judicial
separation, under Section 12of the Act and so also under Section 13(1), the provisions
of Section 23, wherever they are applicable on the facts proved on the record of the case, will
be attracted. It is only to the limited extent in proceedings of divorce under Section 13(1A),
where the divorce is claimed by either of the parties on the ground that there has been no
resumption of cohabitation after the passing of a decree for judicial separation or that there has
been no restitution of conjugal rights after a period of one year or upwards after the passing of
the decree for restitution of conjugal rights, that the said provisions cannot be invoked on the
ground of non-compliance with the decree passed so as to hold that the said act of non-
compliance is in any way taking advantage of his or her own wrong.
This decision was made by the Bench in L.P.A. filed by Chaman Lal against the decision of a
learned single Judge (P. C. Pandit, J.) reported as Chamal Lal v. Mohinder Devi, AIR 1968
Punj & Har 287. It was found by the learned single Judge that the husband having not made
any effort to comply with the decree of restitution of conjugal rights passed against him at the
instance of the wife could not be allowed to take advantage of his own wrong and thus was not
entitled to claim divorce under Section13(1A) of the Act The learned Judge held that it was the
duty of the husband who suffered a decree for restitution of conjugal rights to take steps to
comply with the said decree and that he could not choose to avoid restitution of conjugal rights
for two years after the passing of the decree to create a ground for petition of divorce. In our
opinion, the reasoning given by the learned Judge is not tenable.

Jethabhai Ratanshi Lodaya vs Manabai Jethabhai Lodaya on 6 April, 1973

"Either party to a mortgage, whether solemnized before or after the commencement of this Act,
may also present a petition for the dissolution of the marriage of divorce on the ground-

(i) That there was has been no resumption of co-habitation as between the parties to the
marriage for a period of two years or upwards after the passing of a decree for judicial
separation in a proceeding to which they were parities: or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage
for a period of two years or upwards after the passing of a proceeding to which they were
parities". By the amendment a very conspicuous change is made and the right to get divorce is
conferred on either of the spouses, whereas under the old clauses (viii) and (ix) only the
petitioner. On whose application the decree for judicial separation was passed could
get divorcee and to this extent. no doubt the law is liberalised. Mr. Rele, however. Contends
that there is a further change made and it is this; while both the grounds under the said old
clauses involved an element of default on other party. namely in not resuming cohabitation in
one case and in failure to comply with the decree for restitution of conjugal rights in the other
under the new grounds in the sub-section (1A) no such consideration arises as only objective
conditions on non-resumption of conjugal rights are laid down. He urges that this change in the
conditions of grounds necessarily implies at least. after the said amendments
that section 23(1) of the Act does not govern the proceedings
for divorce under Section 13(1A). Now, there is no doubt that the grounds in clauses (i) and
(ii) of the new sub-section (1A) lay down purely objective tests and involves no dereliction of
duty or wrong. further, it does not appear that there was any element of default in the ground
under old clause (viii) though the words "failed to suggested it. Further. as discussed later a
decree of judicial separation makes it cohabit with the other and therefore spelling out any
element of default from the old clause (viii) would have run counter to the said consequence
of judicial separation. Further. Mr. Rele cited an authority of Jammu and Kashmir High court
in Tej Kour v. Hakim Singh (AIR 1965 J and K 111) in connection with his other point and
which is refereed more fully later wherein it was held that under the old ground (viii) there was
no condition or limitation to grant divorce once two or more years had passed after the passing
more years had passed after the passing of the decree for judicial separation. But even apart
from this alleged change in the old and new grounds for divorce, appellant's arguments ignores
the express provisions of Section 23. Even if any one or more of the grounds for divorce exist
a decree for divorce will not automatically follow as the Court has to satisfy itself
under Section 23 about certain conditions before granting the relief asked for, Section 23 reads
as follows:-

It is also not disputed that after the decree for judicial separation was passed in the aforesaid
circumstances the appellant and the respondents did not resume cohabitation for a period of
two years and upwards so that a ground for divorce accrued to either party
under Section 13(1A)(i) of the Act.

It is in these circumstances that after about a further lapse of five years, and there being no
reconciliation between the parties during that period, the appellant sought to bring the marriage
to an end and filed the petition for divorce under Section 13(1A)(i) of the Act. This petition
filed in the City Civil Court was numbered as M. J. Petition No. 1737 of 1968 from which the
present Letters Patent Appeal arises.

Smt. Mita Gupta vs Prabir Kumar Gupta on 20 June, 1988

That was a case where a decree for judicial separation was passed in favour of the wife and
against the husband and the husband thereafter petitioned
for divorce under Section 13(1A)(i)without taking any step towards resumption of
cohabitation during the prescribed period and on a consideration of the relevant statutory
provisions and the decision of the Supreme Court in Dharmendra v. Usha, (supra), approving
the decisions of the Delhi High Court in Ram Kali v. Gopal Dass, 1LR (1971) 1 Dehli 6 (FB)
and in Ganja Devi v. Purshotom Giri, , 1 have held that a husband, against whom a wife has
obtained a decree for judicial separation, is no longer under any obligation to cohabit with the
wife and, therefore, his failure to do so would, by itself, constitute no "wrong" within the
meaning of Section 23(1)(a) to disentitle him from a decree for divorce under Section 13(1A).

But the decision of the Supreme Court in Dharmendra v. Usha, appears to have ruled otherwise
and to have held that "mere non-compliance with the decree for restitution does not constitute
a 'wrong' within the meaning of Section 23(1)(a)" and that "in order to be 'wrong' within the
meaning of Section 23(1)(a), 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." It is true that
in Dharmendra v. Usha the wife obtained a decree for restitution against the husband and then
proceeded for divorce under Section 13(1A)(ii) on the ground of non-restitution and, therefore,
it was not a case where the petitioner-wife was under any decretal obligation to render her
society. But the wife still had the marital obligation under the law to offer her society to the
husband and if according to the Supreme Court decision in Dharmendra the wife, by failing to
discharge such obligation and declining all offers on the part of the husband to re-union was
committing no 'wrong' and was not taking advantage of any 'wrong' in asking for divorce by
making out a case under Section 13(1A)(ii) of non-restitution after a decree for restitution, then
it may not be possible to hold that a husband, by similar failure and demonstration of
disinclination to resume cohabitation, even if a decree for restitution is passed against him,
would be committing any 'wrong' and would be taking advantage of any such wrong in
proceeding against his , wife under Section 13(1A)(ii), simply because the obligation on his
part to cohabit was also sanctioned under a decree.

In fact, the Full Bench decision of the Delhi High Court in Ram Kali, ILR (1971) 1 Delhi 6
(supra), which has been expressly approved by the Supreme Court in Dharmendra to have laid
down the law correctly, was a case where a decree for restitution was passed against the
husband who, without taking any steps to comply with the decree, proceeded against the wife
for dissolution of marriage under Section 13(1A)(ii) on the ground of non-restitution of
conjugal right for the requisite period after the decree.
And the Full Bench ruled that whichever spouse may have obtained the decree for restitution,
if in fact there has been no restitution of conjugal rights for the requisite period after such
decree, the court should assume that the marriage between the parties has utterly broken down
beyond any prospect of repair and should dissolve the marriage under Section 13(1A)(ii) and
that mere non-compliance with the decree for restitution of conjugal rights is not a 'wrong'
within the meaning of Section 23(1)(a). To the same effect is the single Judge decision of the
Gujarat High Court in Anil v. Sudhaben, (supra) on which the trial Judge has heavily relied.

M.Ajith Kumar vs K.Jeeja @ Sanila on 4 February, 2009

The evidence in this case consists of the oral testimonies of PW.1 and RW.1. Exts.A1 to A4
were marked on the side of the petitioner. The Family Court considered the entitlement of the
appellant herein to get a decree of divorce under Section 13(1A)(ii) of the Act in the light
of Section 23(1)(a) of the Act. In order to appreciate the contentions, it is necessary and
profitable to refer to the aforesaid provisions of the Act and they read as follows:

"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--

(a) any of the grounds for granting 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 is not in any way taking advantage of his or her own wrong or
disability for the purpose of such relief."

Evidently, the Original Petition was filed after the stipulated period under Section 13(1A)(ii) of
the Act. To sustain the ground for dissolution of marriage by a decree of divorce and to
establish that he is entitled to get divorce under Section 13(1A)(ii) of the Act
notwithstanding Section 23(1)(a) of the Act, he relied on various decisions. His attempt was to
canvass the position that in order to be a 'wrong' within the meaning of Section 23(1)(a) of the
Act so as to disentitle for a decree of divorce, the conduct alleged has to be something more
than a mere disinclination to agree to an offer of reunion. According to him, it must be a
misconduct serious enough to justify the denial of the relief. To buttress the said point, the
appellant - petitioner relied on the decisions of the Honourable Apex Court reported
in Dharmendra Kumar v. Usha Kumar (1977) 4 SCC 12 and Saroj Rani v. Sudarshan Kumar
Chadha(1984) 4 SCC 90. The appellant has also relied on the decision of this Court
in Radhakumari v. Dr. K.M.K. Nair reported in AIR 1988 Kerala 235. In that decision, it was
held that the failure on the part of the husband in not enforcing the decree for restitution of
conjugal rights will not disentitle him from getting a decree
for divorce under Section 13 (1A)(ii) of the Act if there was no resumption of cohabitation
between the parties for a period of one year or more after the passing of the decree for restitution
of conjugal rights. It was further held therein that there was no material for evidencing any
conduct on the part of the appellant- husband therein which would amount to a wrong within
the meaning of Section 23(1)(a) of the Act disentitling him to the relief of divorce.

A careful consideration of the decisions mentioned above would make it abundantly clear that
the efflux of time stipulated under Section 13 (1A)(ii) of the Act constitutes only satisfaction
of the ground for relief and the court can still deny the relief if it is satisfied that the appellant
- petitioner is taking advantage of his or her own wrong by virtue of Section 23(1)(a) of the
Act. The word 'satisfied' used in the section has to be construed as 'satisfied on the basis of the
legal evidence' adduced before the court that the petitioner is not in any way taking advantage
of his or her own wrong or disability for the purpose of the Act and not merely on probabilities.
It must be on the matter on record and based on evidence. Certain aspects of law are also to be
borne in mind while considering the question as to whether a party who fails to comply with
the decree for restitution of conjugal rights could be stated to be taking advantage of his or her
own wrong and should he or she be denied the decree for divorce on that ground. In that regard,
it is to be noted that mere non-compliance of the decree for restitution of conjugal rights per se
would not amount to taking advantage of one's own wrong. In other words, mere reluctance on
the part of one of the spouses in resuming cohabitation cannot be construed as a 'wrong' so as
to disentitle him or her to get a decree of divorce under Section 13(1A)(ii) of the Act
notwithstanding Section 23(1)

(a) of the Act. It leads to the conclusion that even on satisfaction of the ground for dissolution
of marriage by a decree of divorce under Section 13 (1A)(ii) of the Act, the entitlement to the
relief depends on satisfaction of the court that the petitioner is not in any way taking advantage
of his or her own wrong or disability for the purpose of such relief. There can be no doubt that
in all cases other than those excluded from the operation of the provisions
under Section 23(1)(a) of the Act, the court is under an obligation to satisfy itself based on the
evidence adduced before it that the petitioner is not taking advantage of his or her own wrong
or disability for the purpose of such relief.