Deoki Nandan, J. - (1.) THIS is a wife's first appeal from the decree dated 26th April, 1980 of the court of the District Judge dismissing her petition for divorce. The cause of action pleaded by the petitioner -appellant was that a decree for restitution of conjugal rights was passed against her on 19th September, 1977 in Matrimonial Suit No. 44 of 1976 of the Court of the District Judge, Tehri Garhwal. The respondent did not thereafter come to call the petitioner appellant and there had been no resumption of co -habitation between the parties in spite of the said decree. The petition for divorce also mentions the fact that the petitioner had filed a petition for divorce against the respondent, which was Matrimonial suit No. 21 of 1979 of the Court of the District Judge, Tehri -Garhwal, but was dismissed on 21st April, 1979 and it was because of that suit that the petitioner could not immediately institute the suit giving rise to the present first appeal. The petition mentions the further fact that the petitioner has a son who was not begotten upon her by the respondent but was conceived when she was raped in a jungle by an unknown person and because of the same she has not disclosed that fact even to her parents. The defence was that the petitioner had illicit relations with one Kundan Singh son of Chharia who was living in the same house with the petitioner, and the son born to the petitioner was begotten by Kundan Singh; that after the decree for restitution of conjugal rights, the respondent went to the petitioner's place, on two occasions, to call her but she did not come and was presented by four persons who were made co -defendants with the petitioner, in the suit for restitution of conjugal rights. It was further pleaded that after the dismissal of the petitioner's suit for divorce, she had shifted to Eundan Singh's house and was living with him as his wife. Lastly it was pleaded that the petitioner could not take advantage of her own wrong and was not entitled to the relief of divorce claimed by her.
(2.) THE following were the issues on which the parties went to trial: 1. Whether there has been no resumption of cohabitation as between the parties to the marriage for a period of one year after the passing of decree in civil suit No. 44 of 1976 dated 19.9.1977. 2. Whether the petition Is liable to be dismissed in view of the provisions of Section 23 of the Hindu Marriage Act as alleged by the respondent ? Whether the petitioner is leading an adulterous life? If so, its effect? 3.TO what relief, if any, is the petitioner entitled? The trial Court took up the first three issues together for consideration. After noticing the pleas of the parties, the trial Court observed that the respondent had instituted an application for execution of the decree for restitution of conjugal rights which was dismissed on 18th July, 1978. That application for execution of the decree was directed against the petitioner, her parents and Kundan Singh with whom she was alleged to be living in adultery. According to the trial Court: The above execution application clearly shows that the respondent wanted to keep the petitioner with him but it was the petitioner who has been avoiding to go and live with the respondent her husband. The trial Court then quoted clause (a) of sub -section (1) of Section 23 of the Hindu Marriage Act and observed that it clearly showed: that if the petitioner wants to take advantage of his or her own laches or wrong etc. no relief should be granted to her. In the instant case............the petitioner has herself defaulted in refusing to go and resume cohabitation with the respondent for which he has been trying and therefore she is not entitled to the relief of divorce because she has herself defaulted as noted above.
(3.) On the third is sue, the trial Court found that the petitioner was most probably living in adultery with Kundan Singh and her child, who was about 2 -1/2 years old, could not have been the result of the alleged rape for she stated in the witness -box that she was raped about one year ago. According to the trial Court the suggestion was that the petitioner's child was begotten on her by Kundan Singh. It found "that most probably the petitioner is leading an adulterous life............but this point is not directly material so far the petition of divorce is concerned. No doubt this shows that because the petitioner is living in adultery with someone else hence she has got no intention to comply with the decree of restitution of conjugal rights obtained by the respondent against her. This also shows the wrong and laches of the petitioner herself and she could not be permitted under law to take advantage of her own laches........... The evidence on record clearly shows that the petitioner is herself in the wrong and the Court will, therefore, not permit her to take advantage of her own laches". The trial Court finally held: - - I am of opinion that the petitioner has failed to make out a case of diverse because she herself has been in the wrong while refusing to comply with the decree of restitution of conjugal rights and then leading adulterous life giving further support to the contention of the respondent that she is not prepared to comply with the decree.;