B.S.DHILLON,J. - (1.) THIS F. A. O. was admitted to a Full Bench by the Motion Bench as the correctness of the judgment of a Division Bench in Chaman Lal v. Mohinder Devi 1971-73 Pun LR 104 was being questioned. This is how this appeal has been laid before us.
(2.) THE necessary facts giving rise to this appeal may thus be stated: Singh Raj respondent was married to Smt. Bimla Devi at village Bhareri Khurd, Tehsil Naraingarh, District Ambala, on 8th November, 1968. After the marriage, the wife stayed with her husband only for one day in village Surakhpur, Tehsil Thanesar, District Karnal, and then returned to her parents' house. According to the wife-appellant, the marriage was solemnised between her and the respondent on account of the fraud practised by the respondent and his father on her parents. The appellant filed a petition under S. 12 of the Hindu Marriage Act. 1955, (hereinafter called the Act) on 3rd June, 1969, which was dismissed by the learned District Judge, Ambala, on 2nd May, 1970. Singh Raj respondent filed a petition for restitution of conjugal rights on the ground that the wife withdrew from his society without reasonable cause. In reply, the wife took the stand that the marriage was got solemnised by practising fraud and as such the husband was not entitled to a decree for restitution of conjugal rights. This application was allowed by the learned Additional District Judge, Karnal, vide order dated 12th of November. 1970. Aggrieved against both the orders, the appellant-wife then filed two appeals challenging the orders of the Courts below. Both the appeals were dismissed by this Court on 25th of October, 1972. On 21st December, 1972, the appellant-wife filed a petition under Section 13 (1a) of the Act claiming a decree for divorce. The said petition was dismissed by the learned Additional District Judge, Ambala, vide order dated 30th August, 1973. This order has been assailed in this appeal. The learned Judge came to the conclusion that the wife wanted to take advantage of her own wrong in not living in the company of the husband and thus in view of the provisions of Section 23 of the Act, she was not entitled to the relief of decree of divorce claimed by her. In order to decide this case, reference may be made to the relevant provisions of the Act. Section 5 of the Act provides that a marriage may be solemnized between any two Hindus, if the conditions mentioned therein are fulfilled Section 9 is in the following terms:-" 9 (1) When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district Court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. (2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce. " Under Section 10 of the Act. either party to a marriage, whether solemnized before or after the commencement of the Act can present a petition to the District Court praying for a decree of judicial separation on the grounds mentioned therein, Section 11 provides for declaring a marriage null and void by a decree of nullity, if it contravenes any of the conditions specified in Clauses (i), (iv) and (v) of Section 5. Section 12 deals with voidable marriages Section 13, before it was amended by Amending Act No. 44 of 19. 64, was as follows:- "13 (1) Any marriage solemnized whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party (i) is living in adultery; or (ii) has ceased to be a Hindu by conversion to another religion; or (iii) has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition; or (iv) has for a period of not less than three years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or (v) has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; or (viii) has not resumed cohabitation for a space of two years or upwards after the passing of a decree for judicial separation against that party; or (ix) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree. (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground- (i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner; Provided that in either case the other wife is alive at the time of the presentation of the petition; or (ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality. "
(3.) IN 1964 by Act No. 44 of 1964. this section was amended and Clauses (viii) and (ix) of Sub-section (1) were omitted and instead Section 13 (1a), which is in the following terms, was inserted:-" 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) that there has been no resumption of cohabitation 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 parties; 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 decree for restitution of conjugal rights in a proceeding to which they were parties. " This section was further amended by Act No. 68 of 1976. The amended Section 13 up-to-date, therefore, is at present in the following terms:- "13 (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has ,after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or (ii) has ceased to be Hindu by conversion to another religion; or (iii) has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation:-- In this clause,- (a) the expression 'mental disorder' means mental illness, arrested or incomplete development of mind psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression 'psychopathic disorder' means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or (iv) has been suffering from a virulent and incurable form of leprosy; or (v) has been suffering from venereal disease in a communicable form; or (vi) has renounced the world by altering any religious order; or (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it had that party been alive: Explanation:-- In this sub-section, the expression 'desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. (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 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. (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground- (i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or (ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy, or bestiality, or (iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974), (or under the corresponding Section 486 of the Code of Criminal Procedure, (1898), (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or (iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. Explanation:-- This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976. (13a) In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in Clauses (ii), (vi), (vii) of Sub-section (1) of Section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation. (13b) (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have actually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in Sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. " 4-A. The only other relevant section is Section 23, which, as amended, is in the following terms:- "23 (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that- (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, and (b) where the ground of the petition is the ground specified in Clause (i) of Sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty, and (bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence; and (c) the petition (not being a petition presented under Section 11) is not presented or prosecuted in collusion with the respondent, and (d) there has not been any unnecessary or improper delay in instituting the proceeding, and (e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise the Court shall decree such relief accordingly. (2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties: Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in Clause (ii), Clause (iii), Clause (iv) Clause (v), Clause (vi) or Clause (vii) of Sub-section (1) of Section 13. 3. For the purpose of aiding the court in bringing about such reconciliation the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been effected and the court shall in disposing of the proceeding have due regard to the report. 4. In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of costs to each of the parties. (23-A) In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counterclaim for any relief under this Act on that ground and if the petitioner's adultery, cruelty or desertion is proved the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground. " ;