JUDGMENT-In this matter controversy centres round the combined effect of provisions of section 13 (1-A) and section 23(1)(a) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act' for short). 2. The facts are simple and few. Appellant (original petitioner) is the wife and respondent is the husband. They were wedded as per Hindu rites; husband filed a petition for the restitution of conjugal rights in terms of section 9 of the Act. It succeeded and ex parte decree against wife was passed on 30th July 1962. That marital life was not restored for more than two years in spite of decree is an admitted position, reasons apart. On 11-2-1966, wife filed a petition for divorce and dissolution of marriage under section 13(1-A)(ii)-a newly added provision in the Act introduced by Act No. 44 of 1964. Wife's contention is that as in fact, there has been no restitution of conjugal rights for more than two years of the passing of the decree, she is entitled to divorce; whereas husband's defence is that wife cannot take advantage of her own wrong. Former relies on section 13(1-A) whereas latter on section 23(1)(a). The trial Court dissolved the marriage whereas the Appellate Court dismissed the petition. Thus, the present second appeal at the behest of a wife. 3. As considerable reliance is placed on purpose and contents of section 13(1-A), it will be necessary to notice those provisions. This section reads thus: "13(1A). Former relies on section 13(1-A) whereas latter on section 23(1)(a). The trial Court dissolved the marriage whereas the Appellate Court dismissed the petition. Thus, the present second appeal at the behest of a wife. 3. As considerable reliance is placed on purpose and contents of section 13(1-A), it will be necessary to notice those provisions. This section reads thus: "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 one year or upwards after 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." These provisions replaced old clauses (viii) and (ix) of section 13 (1) which read as under: - "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- (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." 4. Plain reading of old provisions will disclose that a spouse against whom a decree either for restitution or for judicial separation is passed, had no locus to file a petition for a divorce under these heads. New provision has put no such limitation. Indeed, removal of this limitation, and allowing even a defeated party to take recourse to section 13 seems to be the principal reason behind this amendment, which is clear from the plain reading of the new provisions. New provision has put no such limitation. Indeed, removal of this limitation, and allowing even a defeated party to take recourse to section 13 seems to be the principal reason behind this amendment, which is clear from the plain reading of the new provisions. For limited purposes, aid even from the following statement of Objects and Reasons can be taken which is contained in Bills Section II of Gazette of India, Part II, dated 22nd February J 963, at page 86 : "Suppose, as in the present case, a decree for restitution of conjugal rights is passed in favour of the wife the husband is expected to comply with the decree but greater his defiance of that decree, the better his chances of success in his petition for divorce. It is impossible to hold that the way to success in a petition for divorce can be paved by an outright defiance of the mandate of the Court." 5. This takes us to the provisions of section 23 (1)(a) of the Act, which lays down that in any proceedings under the Act, whether defended or not, decree can be granted only if "the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of this relief." The reasoning of the learned District Judge is that not complying with the decree of restitution of conjugal rights is a wrong at the hands of the wife and therefore, she cannot take its advantage for getting a decree for divorce on that basis. Reliance was placed upon the following observations made in the case of Champalal v. Mohinder Devi1: "Where the decree for restitution of conjugal rights has been passed against the husband it is his duty to make efforts to comply with the said decree. He cannot avoid the restitution of conjugal rights for 2 years after the decree and then make a petition for divorce on that ground, thus taking advantage of his own wrong." It seems to me that this approach and view of the matter is contrary to letter and spirit of the amended provisions-and I say this with utmost respect. No doubt section 23(1)(a) has remained unaltered even after Act No. 44 of 1964, but it cannot be so, read as to render the, amendment futile and to defeat the very purpose behind it. No doubt section 23(1)(a) has remained unaltered even after Act No. 44 of 1964, but it cannot be so, read as to render the, amendment futile and to defeat the very purpose behind it. If legislation intended that benefit of section 13(1-A) is not to be given to the defeated party, it would have clearly mentioned this either by incorporating an exception or by any other Code. If this was done, there was no necessity of amendment at all. It is not possible to assume that Legislation intended to indulge in an exercise in futility. 6. It seems to me that the purpose behind, both these provisions is entirely different. Section 13(1-A) gives statutory recognition to, the principle that it is in the interest of society as well as the spouses that if there is irretrievable breakdown of the, marriage and all chances of reunion. disappear, there is hardly any utility in maintaining a marriage a facade in absence of emotional and other bonds which are the very essence of marriage relationship. This was intended to be achieved irrespective of the question as to who is responsible for the unfortunate situation. If two or more years have passed without resumption of marital life in spite of decree by a competent Court, it was considered unrealistic to expect that some day spouses will unite and marriage will work. The old concept of default of the spouse as furnishing a ground for refusing divorce when claimed by that party was, therefore, given up. Permitting only a decree holder to move the Court for divorce led to a stalemate. If he chose not to do so a curious situation could arise. Opposite party was left with no remedy and the marriage was, as it were, a limbo. The "fault" theory is therefore pushed back and "breakdown" theory has been pushed a step further. This is thus codification of the principle that if marriage cannot be worked, there is no point in thrusting one spouse on the other much against his or her desire-irrespective of the reasons behind. 7. It may be noticed that the Act came to be amended further, by Act No. 68 of 1976. It not only reduced the waiting period of two years to one year but also incorporated a fresh provision, in the form of section 13 (B) for grant of decree of divorce by mutual consent. 7. It may be noticed that the Act came to be amended further, by Act No. 68 of 1976. It not only reduced the waiting period of two years to one year but also incorporated a fresh provision, in the form of section 13 (B) for grant of decree of divorce by mutual consent. The new provisions are contrary to the conventional principles of Hindu Law under which a divorce by consent was unknown. New legislative intention is that all efforts to restore sick marriage to healthy have to be made, but once they fail, there is no point in withholding the award of a decree for divorce. It is considered better to dissolve it than meaninglessly to try to let it limp along. Not that these last amendments are relevant in the present case, but they do point out that more realistic approach is being made towards this human problem by the society. While more practical view of the marriage relationship is taken, old tradition is not given up completely. Divorce is not available merely for asking and consideration of conduct of the parties has still been retained, in the form of section 23 (1) (a). There is thus no unqualified right to divorce as soon as condition of section 13 (1-A) are fulfilled. Decree can be refused if any spouse is taking advantage of his or her own wrong for the purposes of relief claimed. Keeping principles of harmonious construction and so also these two provisions in view, it seems that wrong prior to passing of the decree is not the wrong contemplated under section 23 at all, and the past conduct cannot be used as a valid defence against a petitioner seeking divorce under these provisions. Concept of "wrong" as used in section 23 even otherwise seems to be different than what has been held in the Champalal's case (supra). It means, an act of causing some injury to the other side in the sense that action has some direct or indirect relation to the marital offence committed by the other spouse and on which the cause of action for the petition is based. The terminology "taking advantage" also has to be kept in view. We may select one of the many examples in this connection. If other spouse changes his or her religion, it offers a good ground for divorce under section 13 of the Act. The terminology "taking advantage" also has to be kept in view. We may select one of the many examples in this connection. If other spouse changes his or her religion, it offers a good ground for divorce under section 13 of the Act. But, if it is proved that this change in relation was done due to the force of the other spouse, may be that in such a case, defence under section 23 (1) (a) can succeed. There is not even a whisper in the whole record of the present case about the petitioner being guilty of any such wrong, much less after the decree. Mere refusal to comply with a decree for restitution of conjugal rights and for judicial separation, therefore, cannot defeat the claim for dissolution of marriage even if made at the instance of party against whom decree is passed. I can do no better than to quote in this context the following lines in Dharmendra Kumar v. Usha Kumar2, reported in: "In order to be a "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 of the wife is otherwise entitled". Judgment proceeds further: "In the case before us the only allegation made in the written statement is that the petitioner refused to receive or reply to the letters written by the appellant and did not respond to his other attempts to make her agree to live with him. This allegation, even if true, does not amount to misconduct grave enough to dis-entitle the petitioner to the relief she has asked for." In view of this authoritative pronouncement by the Supreme Court, it is not necessary to refer to various conflicting decisions given on the point, as contrary view on the point stands overruled. 7. This leaves us with inescapable conclusion that the petitioner is entitled to a decree for dissolution of her marriage with the respondent. The appeal is, therefore, allowed. Unfortunately, this vital matter of delicate human relationship has come up' on board in routine course and is being decided after 11 years. By this time middle age must have taken over the youth of the parties. The appeal is, therefore, allowed. Unfortunately, this vital matter of delicate human relationship has come up' on board in routine course and is being decided after 11 years. By this time middle age must have taken over the youth of the parties. I do not know whether this decision itself has remained worthwhile for them; but surely under the circumstances, it is not worthwhile passing any order as to costs. Appeal allowed.