Debi Prosad Dutta v. Suravi Dutta — 1985 DIGILAW 303 (CAL)

JUDGMENT 1. THIS is an appeal by the petitioner Debi Prosad dutta against the decision of the learned Additional District Judge, 14th Court, alipore, dismissing the petitioner's application under section 13 of the Hindu marriage Apt for dissolution of marriage by a decree of divorce on the ground that the opposite party Sm. Suravi Dutta failed and neglected to comply with the decree obtained by the petitioner for restitution of conjugal rights, in Matrimonial Suit no. 62 of 1979. 2. IT is alleged by the petitioner that the petitioner and the opposite party were married according to Hindu rites on May 28, 1977. Tie petitioner works at Durgapur and his parents live at 20 C, Sarat Ghosh Garden Road, P.S. Kasba. After marriage the respondent lived for sometime at the petitioner's kasba house. The petitioner had Ho suitable accommodation at that time at Durgapur and he used to come to Kasba house occasionally. The petitioner was to come to Calcutta on 28.5.78 to celebrate his marriage anniversary but suddenly he was attacked with Chicken Pox on 24.5.78 and he could not come to Calcutta. The respondent on 28.5.78 suddenly left the Kasba house at about 7 a. m. without the knowledge and consent of the petitioner's father and went alone to Durgapur. The petitioner's father in his anxiety rushed to Durgapur in order to ascertain whether she was there. The petitioner came to know from his father that on 28.5.78 the respondent's uncle, aunt and others came to Kasba house and heckled the petitioner's father. On 16.7.78 the respondent's uncle, aunt and others came to the quarter of the petitioner at Durgapur and the respondent went away with them taking with her all her belongings. Since then the respondent has been living in the house of her father and she did not come back in spite of several letters. At the time the respondent left the petitioner's place she was pregnant and she delivered a female child on 11.1.79. All attempts thereafter having failed to persuade her to come back to the matrimonial home, the petitioner filed a suit for restitution of conjugal rights in the Court of the district Judge at Alipore and the said suit being Matrimonial Suit no. 90 of 1979 was subsequently renumbered as matrimonial Suit no. 62 of 1979. All attempts thereafter having failed to persuade her to come back to the matrimonial home, the petitioner filed a suit for restitution of conjugal rights in the Court of the district Judge at Alipore and the said suit being Matrimonial Suit no. 90 of 1979 was subsequently renumbered as matrimonial Suit no. 62 of 1979. During the continuance of the said suit, all attempts for reconciliation failed; The respondent continued with the criminal case filed by her against the petitioner his father and brother under section 406 i.e. P.C. and she also continued with the proceeding under section 125 Cr, P. C. instituted by her. Matrimonial Suit no. 62 of 1979 was decreed on contest on 22.8.79. After the said decree, the petitioner, his father and sister tried to bring the respondent back to, the matrimonial home but all attempts failed. The petitioner has thus been obliged to institute the present suit being Matrimonial suit no. 590 of 1980 which was subsequently renumbered as Matrimonial Suit no. 3 of 1981. The respondent contested the suit and in her written statement she alleged that the petitioner did not, take her to Durgapur on the plea that he was hot allotted a suitable accommodation. From the beginning of the marriage, the parents of the petitioner did not receive her sympathetically and affectionately. They always insulted her and treated her cruelly. Because of ill treatment at Kasba house the respondent went to Durgapur and found the petitioner Suffering from chicken Pox. On 28.5.78 the respondent's brother went to Kasba house and it was reported to him that the respondent had fled away. The parents of the respondent also went to Durgapur on 28.5.78 but they were insulted by the petitioner's father. On 11.7.78 the petitioner wrote a letter from Durgapur to the father of the respondent threatening him with dire consequences. It is alleged that the respondent was not allowed to take a single cloth and she lodged a complaint in the local thana. On 31.7.78 the respondent wrote to the petitioner to take her back but the petitioner did not make any attempt to take her back. On 16.1.79 the petitioner went to the hospital to take her after the child's birth but the respondent was not physically fit. Compliance was not possible because of the attitude of the petitioner. On 31.7.78 the respondent wrote to the petitioner to take her back but the petitioner did not make any attempt to take her back. On 16.1.79 the petitioner went to the hospital to take her after the child's birth but the respondent was not physically fit. Compliance was not possible because of the attitude of the petitioner. In the additional written statement the respondent further alleged that at the intervention of the Judicial Magistrate, 8th Court, Alipore there was a settlement and, the respondent went to her matrimonial house at Kasba on 8.1.81 with her child and she lived there upto 10.1.81. During this period there was resumption of cohabitation between the parties. On 10.1.81 the petitioner and his parents wanted to obtain her signature on some blank papers. On 10.1.81 the petitioner asked the respondent to leave the house and she was physically assaulted. Thereafter the respondent was compelled to leave the house. 3. THE learned Judge came to the conclusion that the respondent was ever ready and willing to live with the petitioner but she had to stay away because of the conduct of the petitioner. After the decree for restitution of conjugal rights the respondent was eager to go back to her matrimonial home but there was no change in the conduct of the petitioner. The respondent actually went but she could not stay there. The learned Judge has further held that the petitioner obtained the decree for restitution of conjugal rights net for taking back the respondent and living with her as husband and wife his sole purpose was to make a clear passage for divorce. The learned Judge further held that as there was no evidence of non-compliance on the part of the respondent the petitioner was not entitled to a decree for divorce. 4. MR. S. P. Roy Chowdhury, learned advocate for the appellant, has argued that the appellant obtained a decree for restitution of conjugal rights on 22.8.79. The present suit was instituted on 5.9.80. 4. MR. S. P. Roy Chowdhury, learned advocate for the appellant, has argued that the appellant obtained a decree for restitution of conjugal rights on 22.8.79. The present suit was instituted on 5.9.80. In view of clause (ii) of sub-section (la) of section 13 of the Hindu Marriage Act, 1955 the appellant was entitled to dissolution of marriage by a decree of divorce as admittedly there had been no restitution of conjugal rights, as between the parties to the marriage for a period of more than one year after the passing of the decree for restitution of conjugal rights in the proceeding to which both I the appellant and the respondent were parties. The contention of Mr. Roy Chowdhury is that even if for the argument's sake it is accepted that the appellant was the defau1ting party, that is, the appellant did not take steps for bringing his wife back to the matrimonial home after the decree for restitution of conjugal rights the right conferred by the law upon the appellant to have a decree for divorce under clause. (ii) of sub-section (1a) of section 13 of hindu Marriage Act cannot be denied to him. In this connection, Mr: Roy chowdhury has referred to the Supreme court decision in Dharmendra Kumar v. Usha Kumar AIR 1977 S. C. 2218. Mr. Roy Chowdhury argues that the said case is similar to the present one, the only difference being that in that case a decree for restitution of conjugal rights was obtained by the wife It has been held in this decision that in order to be a 'wrong' within the meaning of section 23 (1) (a) of the Hindu Marriage Act 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 has been further held that it would not be very treasonable 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. Mr. It has been further held that it would not be very treasonable 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. Mr. Roy chowdhury has further contended that the learned Judge failed to consider the application of the provisions of the Hindu Marriage Act by refusing a decree of divorce on the ground that the parties had lived together from 8.1.81 to 10.1.81 and there was complete restitution of conjugal rights. Mr, Roy Chowdhury argues that the evidence on record would show that the respondent went to the petitioner's house on 6.1.81 because of the intervention of the learned Judicial Magistrate before whom the application by the respondent under section 125 of the Code of Criminal Procedure was pending. The said stay of the respondent at the appellant's Kasba house was not due to any voluntary agreement between the parties. Moreover, the learned Judge erred in law in holing that the petitioner obtained a decree for restitution of conjugal rights not for taking back the respondent and living with her as husband and wife but to make a ground for divorce. The contention of Mr. Roy Chowdhury is that the previous suit for restitution of conjugal rights was decreed in favour of the petitioner. The observation of the learned judge about the intention of the petitioner in obtaining the said decree is uncalled for and unwarranted. When the present suit was instituted the appellant had every right to get a decree of divorce as admittedly on that date there had been no restitution of conjugal rights for a period of more than, one year after the passing of the decree for restitution of conjugal rights. It has been argued by Mr. Roy Chowdhury that the whole conduct of the respondent would show that she had no inclination to come back to her matrimonial home. Even before the birth of the child, the respondent on 2.1.79 filed an application under section 125 Cr. P. C. for maintenance. Thereafter, she filed a criminal case under section 406 Cr. P. C. against the appellant, his father and brother. The evidence would show that the respondent proceeded with both the cases even after the decree for restitution of conjugal rights. P. C. for maintenance. Thereafter, she filed a criminal case under section 406 Cr. P. C. against the appellant, his father and brother. The evidence would show that the respondent proceeded with both the cases even after the decree for restitution of conjugal rights. The appellant made several efforts to bring her back to the matrimonial home but the respondent refused. In the circumstances, the learned Judge was in error in dismissing the suit. Mr. D. S. Mullick, learned Advocate to the respondent, has contended that the appellant ill-treated the respondent and he filed a suit for restitution of conjugal rights with the intention of getting a divorce. The appellants also tried to stay the proceeding under section 125 cr. P. C. on the ground that he had instituted a suit. It has been further argued that the evidence would unmistakably show that the appellant was never acting bonafide and he rejected all the efforts of the respondent to come back to the matrimonial home before and after the suit for restitution of conjugal nights. The appellant thus cannot take advantage of his own wrong and be is guilty of grave misconduct disentitling him to a decree for divorce. Moreover, the appellant accepted the respondent in his house on 8.1.81 and the respondent lived there till 10.1.81 when she was assaulted and driven out of the house. There was thus restitution of conjugal rights for howsoever short a period and the learned Judge was justified in rejecting the claim of the appellant. Mr. Mullick has also referred to several decisions in support of his contention which will be considered at the proper place. 5. PARTIES were married on May 28, 1977. The petitioner-husband filed an application, under section 9 of the Hindu marriage Act for restitution of conjugal rights and the said suit was decreed by the learned Additional District Judge, 14th. Court, Alipore on August 22, 1979. The petitioner-husband filed the present suit for divorce on September 5, 1980 under section 13 of the Hindu Marriage act on the ground that there had been no restitution of conjugal rights for a period of more than one year from the date of the decree, that is, from August 22, 1979. Mr. Roy Chowdhury has argued that the learned Judge was wrong in dismissing the suit as evidence showed that when the present suit was. Mr. Roy Chowdhury has argued that the learned Judge was wrong in dismissing the suit as evidence showed that when the present suit was. instituted there had been no restitution of conjugal rights for a period of more than one year after the decree for restitution of conjugal rights. Mr. Roy Chowdhury has further contended that in view of the decision of the Supreme Court in dharmendra Kumar's case AIR 1977 sc 2218 the appellant is entitled to a decree. The main grievance of Mr. Roy chowdhury is that the learned Judge has totally failed to comprehend the scope of the present suit when he observed that the petitioner obtained the decree for restitution of conjugal rights not for taking back the respondent, and living with her as husband and wife; the sole purpose was to make a clear passage for divorce. Mr. Roy Chowdhury argues that the learned judge had no jurisdiction to make such comments as the petitioner's prayer for restitution of conjugal rights was granted in the previous suit by a competent court. The only point for consideration in the present suit is whether there was no restitution of conjugal rights for a period of one year or upward from the previous decree. Mr. Mullick contends that the petitioner acted malafide. The respondent Was ever ready and willing to go back to the matrimonial home and she wrote several letters in that regard. The petitioner did not take any step to take back the respondent and be thus cannot be allowed to take advantage of his own wrong. Mr. Mullick has further argued that the learned Judge was correct in holding that during the pendency of the present suit there was restitution of conjugal rights when the respondent went to live with the petitioner at his kasba house from 8.1.81 to 10.1.81. The respondent had to leave the matrimonial house on 10.1.81 when she was abused, ill treated and driven out of the house. In answer to this contention Mr. Roy chowdhury submits that a daughter was barn on 11.1.79. Even before the birth of the daughter the respondent on 2.7.79 filed an application under section 125 cr. The respondent had to leave the matrimonial house on 10.1.81 when she was abused, ill treated and driven out of the house. In answer to this contention Mr. Roy chowdhury submits that a daughter was barn on 11.1.79. Even before the birth of the daughter the respondent on 2.7.79 filed an application under section 125 cr. P. C. The respondent also filed a criminal case against the petitioner under section 406 I. P. C. Even after the decree for restitution of conjugal rights the respondent was proceeding with the application under section 125 Cr., F. C. an the criminal case. The said application under section 125 Cr. P. C. was pending before the 8th Judicial Magistrate a alipore. Mr-Roy Chowdhury argues that exhibit 4, the order of the learned Magistrate, shows that the respondent Went to the house of the petitioner under orders of the court and, as such the said stay of the respondent in the petitioner's Kasba house would not amount to restitution of conjugal rights, Mr. Ho chowdhury, has further argued that the judgment of the learned Magisterial (Ext. F) would clearly show that the petitioner-husband was not willing to take the respondent but ultimately because of the orders of the learned Magistrate the respondent Was, taken by the petitioner to his house at Kasba. The respondent's stay from 8.1.81 to 10.1.81 at the petitioner's house was under the orders of the Magistrate and it cannot thus be held to be restitution of conjugal rights by the mutual consent of the parties. It has been further argued by Mr. Roy Chowdhury that on the date of the presentation of the application for divorce the petitioner' had a right to obtain a decree under clause (ii) of section 13 (1a) and the petitioner was not disentitled to obtain a decree because of the intervention of the learned Magistrate on a proceeding under section 125 Cr. P. C. It appears that the contention of Mr. Roy Chowdhury is well founded. The proceeding under section 125 cr. P. C. was an independent proceeding and the learned Magistrate intervened in the matter. The said intervention is not a reconciliation by the Civil court under the Hindu Marriage Act. 6. THE question is whether the learned judge was justified in dismissing the suit on the ground that there had been a restitution of conjugal rights. P. C. was an independent proceeding and the learned Magistrate intervened in the matter. The said intervention is not a reconciliation by the Civil court under the Hindu Marriage Act. 6. THE question is whether the learned judge was justified in dismissing the suit on the ground that there had been a restitution of conjugal rights. The learned judge has held that there is no evidence of non-compliance with the decree for restitution of conjugal rights on the part of the respondent and the petitioner cannot get a decree for divorce. The learned Judge has failed to appreciate the provisions of clause (ii) of section 13 (1a) of the Hindu Marriage Act. He has failed to take note of the amendment made by the Marriage Laws (Amendment) Act, 1976. The Court has to consider whether there has been no restitution of conjugal rights as between the parties to a marriage for a period of one year or upwards after the passing of the decree for conjugal rights in a proceeding to which they were parties. It is not the question of non-compliance with the decree for restitution of conjugal rights on the part of the respondent. The material point to be determined is whether there has been no restitution of conjugal rights for a period of one year or upward, as alleged by the petitioner. Under the present law, not only the party who obtain-ed a decree for restitution of conjugal rights but the party against whom a decree for restitution of conjugal rights was made can apply for divorce if there has been no restitution of conjugal rights for a period of one year or upwards after the passing of the decree for restitution of conjugal rights. After a decree for restitution of conjugal rights, either part to the decree may pray for dissolution of the marriage by a decree of divorce under section 13 (1a) (ii) of the Hindu Marriage act on the ground that there has been no restitution of conjugal rights. In such a suit the Court will have to consider the following :- (a) that there has been a decree for restitution of conjugal rights, (b) that there has been no restitution of conjugal rights for a period of one year et upwards after the passing of the decree. In such a suit the Court will have to consider the following :- (a) that there has been a decree for restitution of conjugal rights, (b) that there has been no restitution of conjugal rights for a period of one year et upwards after the passing of the decree. (c) that the party applying for divorce is not in any way taking advantage of his or her own wrong, (d) that in order to be a wrong 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. (See Dharmendra kumar v. Usha Kumar AIR 1977 sc 2218 ). 7. MR. Mullick has argued that the husband is disentitled to a decree of divorce because his misconduct is serious enough. His Second contention is that there was restitution of conjugal rights for howsoever a short period as the wife resided with her husband at his Kasba residence from -8. 1. 81 to 10. 1. 81. It has been further contended by Mr. Mullick that the evidence on record will clearly indicate that the wife was abused and ill treated by the husband and his parents and her attempt to live with her husband both prior, and, subsequent to the decree for restitution of conjugal rights was thwarted by the husband with the ulterior motive of obtaining divorce. Mr. Mullick has referred to several decisions in support of his contention. The decisions are: Smt. K. S. Lalithamma vs. N. S. Hiriyannaiah AIR 1983 Karnataka 63, p. M. Rao vs. P. V. Manohari AIR 1984 a. P. 54; Soundarmal vs. S. M. Nadar air 1980 Madras 294; M. Someswara vs. Leelavathi AIR 1968 Mysore 274; Mrs. V. Handa vs. N. K. Honda AIR 1084 punjab and Haryana 99; Sm. Kanak Lata ghosh vs. Amal K. Ghosh AIR 1970 Calcutta 328 Mr. Mullick has argued that in view of the principles of law and in view of the decisions cited by him it must held that the husband is guilty of a wrong which disentitles him to a decree of divorce. 8. THE facts of Kanak Lata's case air 1970 Cal. 328 are completely different. Mullick has argued that in view of the principles of law and in view of the decisions cited by him it must held that the husband is guilty of a wrong which disentitles him to a decree of divorce. 8. THE facts of Kanak Lata's case air 1970 Cal. 328 are completely different. In that case the suit was decreed by the High Court solely for the purpose of giving a fair trial to the offer made by the husband to take back the wife. It was held that it was incumbent upon the husband upon disposal of the said suit to keen open the said offer by reiterating it after the passing of the decree. Moreover, after the said decision the law has undergone vast changes not only by amendments but also by the decision of the Supreme Court in Dharmendra Kumar's case. In Lalitamma's case AIR 1983 Karnataka 63 if has been held that section 23 (1) of the Act does not come in the way if the party wants to take advantage of his statutory right to obtain dissolution of marriage which has been Conferred on him or her under section 13 (1a) and as such a party cannot be said to be taking advantage of his own wrong when relying on a statutory right. In order to be a wrong within the meaning of section 23 (1) (a) the conduct alleged must be serious enough to justify denial of the relieve which the husband or wife is otherwise entitled. Having regard to the fact of the said case, their Lordships dismissed to application of the husband praying for divorce holding that the husband failed to maintain his wife and he was trying to remarry and he was coercing the wife to withdraw the proceedings brought legitimately by her and for a decree for divorce. In M. Someswara's case (supra)AIR 1968 Mysore 274 the prayer of the husband for divorce was dismissed on the ground that he had refused to resume cohabitation with his wife even when she offered to perform marital obligation and that he ill-treated her. 9. IN AIR 1980 Madras 294 it has been held that the wrong referred to in section 23 (1) has to be comprehended from the circumstance, of each case. 9. IN AIR 1980 Madras 294 it has been held that the wrong referred to in section 23 (1) has to be comprehended from the circumstance, of each case. In that case, it has: been found that the wife obtained judicial separation proving that the husband was giving with another woman. The husband ought for a decree for divorce under section 13 (1a) of the Act and that the husband continued to live in adultery and was therefore barred to get the relief by reason of section 23 (1) (a ). 10. IN P.M. Rao vs. P.V. Manohari air 1984 A.P. 54 the husband's prayer under section 13 (1a) was rejected on the ground that the alleged attempt for restitution of conjugal rights was only a make believe affair and evolved as a stepping stone to get a decree for divorce and the move was prompted by consideration of getting money from the parents of the wife and there (was no trace of genuineness in his conduct and he was trying to create and make out grounds for divorce with an ulterior motive. In dealing with the present case, the principles of law laid down by the supreme Court in Dharmendra Kumar's case (supra) would have to be followed. It would be, necessary to consider the contention of the husband that there has been so restitution of conjugal rights for a period of more than one year after the decree for restitution of conjugal rights. The contention of the respondent that the petitioner-husband cannot be allowed to take advantage of his own wrong has also to be gone into. Whether a party is taking advantage of his or her wrong has to be determined from the facts of each case. No general rule can be laid down in that matter. 11. THERE is no dispute that the petitioner-husband obtained a decree for restitution of conjugal rights on August 22, 1979. The petitioner instituted the present suit on September 5, 1980. Having regard to the facts of the case, it is clear that there was no restitution of conjugal rights between the parties when the suit was instituted. The wife alleges that she was ever ready and willing to live with her husband but the husband did not take her back in spite of her request. Having regard to the facts of the case, it is clear that there was no restitution of conjugal rights between the parties when the suit was instituted. The wife alleges that she was ever ready and willing to live with her husband but the husband did not take her back in spite of her request. The husband on the other hand contends that the wife merely sent some letters but she had no intention to come back to her husband as would be evident from her conduct of prosecuting the application under section 125 Crl P. and the criminal case for breach of trust. The husband has also contended that the wife was writing letters to different persons complaining against the husband. In such circumstances, it is argued, the oiler of the wife to live with her husband was not genuine enough. The husband further contends that he is not guilty of any misconduct serious enough to deny him the relief prayed for in the instant case. 12. THE petitioner examined himself as P. W. 1. He has also examined his mother - P. W. 2 Nanibala Dutta. The only witness examined on behalf of the respondent is D. W. 1 Suravi Dutta the respondent herself. Admittedly., the parties were married according to Hindu rites on May 28, 1977. The petitioner was working at Durgapur. The petitioner says that after the decree for restitution of conjugal rights on 22. 8. 79 he sent three letters to the respondent, asking her to come. Another letter was also written by the petitioner's lawyer. D. W. 1 the respondent says that after the decree for restitution of conjugal rights she tried to go to her husband's house and she sent letters, but she did not get any response. D. W. 1 further states that on May 25, 1980 she went to Kasba house. The petitioner in his evidence has stated that he sent his sister Arati Chowdhury to the respondent. The respondent however denies that Arati or any one went to bring her. Arati Chowdhury has not been examined. The fact remains that the petitioner and the respondent were writing letters but there was no restitution of conjugal rights between them. The letters written by the petitioned to the respondent are Exhibits l (a), 1 (b) and 1 (c) dated 4. 12. 79, 19. 10. 79 and 11. 11. 79 respectively. Arati Chowdhury has not been examined. The fact remains that the petitioner and the respondent were writing letters but there was no restitution of conjugal rights between them. The letters written by the petitioned to the respondent are Exhibits l (a), 1 (b) and 1 (c) dated 4. 12. 79, 19. 10. 79 and 11. 11. 79 respectively. Exhibit 1 is a letter dated 28. 7. 80 sent by the petitioner's Advocate to the respondent. The letters written by the respondent are Exhibit B dated 9. 6. 80, Exhibit B-l dated 24. 10. 79, B-2 and b-3 dated 17. 12. 79. Having regard to the evidence on record, it cannot be said that the petitioner was taking advantage of his own wrong while filing the present suit for divorce. It may at best be said that the petitioner sent some letters but he was not inclined to take back the respondent. The mere disinclination of the petitioner to take back the respondent to the matrimonial home will not disentitle him to a decree. The question for consideration is whether there was restitution of conjugal rights between the parties during the pendency of the Matrimonial Suit no. 3 of 1981 at the intervention of the learned Judicial Magistrate in course of the proceeding under section 125 Cr. P. C. filed by the respondent. The learned Judge has held that on 8. 1. 81 the respondent came to the house of the petitioner and lived there upto 10. 1. 81 and as the parties lived together in the same room there must have been resumption of cohabitation. The learned Judge has further held that as the parties lived together from 3. 1. 81 to 10. 1. 81 so there was complete restitution of conjugal rights. The learned Judge has observed that there was no evidence of non-compliance with the decree for restitution of conjugal rights on the part of the respondent and the petitioner was thus not entitled to decree for divorce. It appears that in the present suit the question is not whether there was noncompliance with the decree on the part of the respondent. The point is whether there has been restitution of conjugal rights between the parties for a year or more from the date of the decree. It appears that in the present suit the question is not whether there was noncompliance with the decree on the part of the respondent. The point is whether there has been restitution of conjugal rights between the parties for a year or more from the date of the decree. In his evidence P. W. 1 has stated that he did not sleep with his wife when she went to their Kasba house. He slept in the room along with his parents. P. W. 2 namibala Dutta, mother of the petitioner has stated that the petitioner and the respondent did not s1eep together and the petitioner slept in his mother's room. The respondent slept in another room with the daughter having regard to the relations between the parties and the fact that the respondent went to the petitioners Kasba house under orders of the Magistrate and the petitioner though at first was unwilling but ultimately agreed to abide by the order of the Magistrate it would appear that it is very unlikely that the petitioner and the respondent would be staying in the same room together. Moreover, having regard to the facts and circumstances of the case, it would be apparent that whatever be the reason, the marriage has broken down and the parties can no longer live together as husband and wife. In such circumstances, following the principles of law laid down by the supreme Court in Sm. Saroj Rani vs. Sudarshan Kumar Chadha (1984) 4 Supreme Court Cases 90, it cannot be held that the petitioner is disentitled to the relief prayed for. The appeal thus succeeds and the petitioner is entitled to a decree for divorce. The appeal is accordingly allowed. The judgment and decree of the learned judge be set aside. The petitioner's application under section 13 of the Hindu marriage Act be allowed and the suit be decreed. The marriage be dissolved by a decree of divorce. Appeal allowed.