Judgment ( 1. ) THE appellant/non-applicant has preferred this appeal under Section 28 of the Hindu Marriage Act against the judgment and decree dated 18-5-2001 passed in Civil Suit No. 346-A/99 by IV th Additional District Judge, Jabalpur wherein the marriage between the parties is dissolved by decree of divorce under Section 13 (1-A) (ii) of the Hindu Marriage Act (hereinafter referred to as the Act ). ( 2. ) ADMITTED facts of the case are that the marriage between the appellant and the respondent was solemnised according to Hindu rites and ceremony on 19th November, 1993 and there is no issue from their wedlock. It is also admitted that the appellant is working as Stenographer in LIC divisional Office, Jabalpur and the respondent/applicant is LDC in the High court of Madhya Pradesh, Jabalpur. It is common ground that respondent/applicant filed the Civil Suit No. 18-A/95 before the IV th Additional District judge, Jabalpur for divorce under Section 13 of the Hindu Marriage Act, 1955. That in this suit appellant/non-applicant filed the cross suit for restitution of conjugal rights. That in the said Civil Suit No. 18-A/95 the petition filed by respondent/applicant for divorce was dismissed on 13-11-1997 and the prayer of the appellant/non-applicant for restitution of the conjugal rights was allowed. Thereafter the respondent/wife had filed the First Appeal No. 300/98 for seeking the divorce before the High Court which has been dismissed on 31-8-1999. It is also common ground that the execution was filed by the appellant/husband in pursuance of the decree of restitution of conjugal rights passed on 13-11-97. ( 3. ) RESPONDENT/wife filed the petition on 21-12-99 in the Court of iv th Additional Judge to the Court of District Judge, Jabalpur alleging that there has been no restitution of the conjugal rights between the parties after passing of the decree of the restitution of the conjugal rights on 13-11-97. That on account of the failure of restitution of conjugal rights between the parties in pursuance of the decree, the marriage between the parties be dissolved by decree of divorce under Section 13 (1-A) (ii) of the Act. ( 4. ) THE case of the appellant/husband is that after passing of the decree of restitution of the conjugal rights, the appellant has tried his best to keep his wife with him. ( 4. ) THE case of the appellant/husband is that after passing of the decree of restitution of the conjugal rights, the appellant has tried his best to keep his wife with him. That the appellant/husband with his family members and friends had several times visited to the house of the respondent/wife for bringing her back to the matrimonial home but the respondent did not agree. It is further pleaded that on 18-11-97 and 15-11-99 the appellant went with his family members and friends to the house of his wife but she started hurling abuses and refused to resume the matrimonial relationship with the appellant/husband. It is alleged that respondent/wife lodged the false report against the appellant/husband and his mother for the offence punishable under Section 498-A of IPC and Section 3/4 of the Dowry Prohibition Act and consequent to the report Criminal Case No. 568/96 was filed by the Police. It is further pleaded that the respondent/wife has not turned up to live with the appellant/husband even after filing of the execution in the Court for restitution of the conjugal rights. The appellant/husband has alleged that his wife is trying to take the advantage of her own wrong and as such no decree in her favour should be passed. ( 5. ) IT is also pleaded that the application for divorce is filed on 21-12-99 within one year of passing of the judgment dated 31-8-99 passed by the High Court in Appeal No. 300/98 and as such this appeal is premature and not tenable under Section 13 (1-A) (ii) of the Act. ( 6. ) LEARNED Trial Court has framed issues and recorded statements of the applicant Navneeta Domle (A. W. 1), her witness Smt. Suma Ganguli (A. W. 2), Pradeep Ganguli (A. W. 3) and the statement of other party Vijay domle (N. A. W. 1), Smt. Vimla Domle (N. A. W. 2), Dharmendra Domle (N. A. W. 3), Gajendra Kumar Pali (N. A. W. 4) and Shailendra Kumar Pali (N. A. W. 5 ). Learned Trial Court has concluded that in pursuance of the decree dated 13-11- 97, the appellant/husband and the respondent/wife have failed to resume the conjugal rights and as such marriage between them deserves to be dissolved under Section 13 (1-A) (ii) of the Act. ( 7. Learned Trial Court has concluded that in pursuance of the decree dated 13-11- 97, the appellant/husband and the respondent/wife have failed to resume the conjugal rights and as such marriage between them deserves to be dissolved under Section 13 (1-A) (ii) of the Act. ( 7. ) THE appellant has assailed the impugned judgment and decree on the ground that the appellant/husband has made several attempts for restitution of the conjugal rights and the wife is guilty of not resuming the conjugal rights as per decree dated 13-11-97 and as such she should not be allowed to take the advantage of her own wrong and, therefore, she was not entitled for the decree of the divorce under Section 13 (1-A) (ii) of the Act. The appellant has challenged the decree on the ground that the judgment by the High Court was passed on 31-8-99 and the divorce petition filed within four months on 29-12-99 when the statutory provision is that the petition for divorce should be filed after passing on one year of the decree for restitution of conjugal rights. It is further alleged that the learned Trial Court has failed to appreciate the statement of five witnesses of the appellant which were to prove that the respondent/wife is responsible of non-resumption of the conjugal rights. It is prayed by the appellant that the judgment of the learned Trial court is against the evidence and the law applicable and the appeal should be allowed. ( 8. ) APPLICANT Navneeta Domle as A. W. 1, her mother Smt. Suma ganguli (A. W. 2) and her brother Pradeep Ganguli (A. W. 3) have stated that after dismissal of the petition on 13-11-97, the appellant/husband is living separately from her. Vijay Domle (N. A. W. 1) has admitted in Paragraph 11 of his cross-examination that after order dated 13-11-97 he and the respondent have not lived together as husband and wife. Now the evidence will be scrutinised to ascertain whether the averments of appellant/husband that he remained ready and made attempts to bring back his wife for resuming the matrimonial relationship are true ? ( 9. ) VIJAY Domle (N. A. W. 1) has stated that in Civil Suit No. 18-A/95, his counter claim Section 9 of the Act for restitution of conjugal rights was allowed and the prayer of his wife for dissolution of marriage was rejected. ( 9. ) VIJAY Domle (N. A. W. 1) has stated that in Civil Suit No. 18-A/95, his counter claim Section 9 of the Act for restitution of conjugal rights was allowed and the prayer of his wife for dissolution of marriage was rejected. Vijay Domle (N. A. W. 1) has further stated that the appeal was filed by his wife challenging the decree of restitution of conjugal relationship before the High court and vide judgment (Ex. D- l), dated 31-8-99 in F. A. No. 300/98 her appeal was dismissed. Vijay Domle (N. A. W. 1) has stated that he wants to have matrimonial relationship with his wife and on 18-11-97 at 6. 00 p. m. he went with his brother Dharmendra and mother Vimla Domle to the house of respondent/wife but the respondent/wife started using filthy language and he was driven away by her from her house. Vijay Domle (N. A. W. 1) has further stated that on 15-11-99 he went with his friends Gajendra Pali, S. K. Pali, Kishan yadav and other to the house of respondent/wife and all the common friends persuaded her to resume the matrimonial relationship but driven out from the house. ( 10. ) THE petition of Vijay Domle (N. A. W. 1) for the restitution of the conjugal rights was allowed and the execution for resumption of the conjugal rights was filed by him in the Court. From the petition filed before the Additional District Judge and in the High Court, it is clear that Vijay Domle (N. A. W. 1) was from the beginning of litigation was seeking the restitution of the conjugal rights with his wife. In these circumstances, statement of Vijay domle (N. A. W. 1) that he persuaded his wife for living with him appears to be worthy of reliance. In this connection, it is noteworthy that Navneeta Domle (A. W. 1), her mother Suma Ganguli (A. W. 2) and Pradeep Ganguli (A. W. 3) have not controverted the averments of the appellant/husband that the appellant made several attempts to resume the matrimonial relation. ( 11. ) VIMLA Domle (N. A. W. 2) has stated that Navneeta (A. W. 1) is her daughter-in-law and she went with her son to the house of her daughter-in-law Navneeta to persuade her to live in matrimonial house. ( 11. ) VIMLA Domle (N. A. W. 2) has stated that Navneeta (A. W. 1) is her daughter-in-law and she went with her son to the house of her daughter-in-law Navneeta to persuade her to live in matrimonial house. Smt. Vimla domle (N. A. W. 2) has further stated that her daughter-in-law abused them and she said that she will not live with her husband. Dharmendra Domle (N. A. W. 3) has stated that the appellant is his younger brother and he along with his younger brother went to the house of Navneeta and Navneeta refused to live with the appellant. Gajendra Kumar Pali (N. A. W. 4) has stated that on 26-12-97 he went with Vijay and Gopal and others to the house of respondent for compromise in between the parties but she said that appellant is of lower caste and she will not live with her husband. Shailendra Kumar Pali (N. A. W. 5) has also corroborated the statement of Gajendra Kumar Pali (N. A. W. 4 ). There is nothing in the cross-examination of Gajendra Kumar Pali (N. A. W. 4) and Shailendra Kumar Pali (N. A. W. 5) to create doubt in the veracity of their statements. Gajendra Kumar Pali (N. A. W. 4) is Stenographer and Shailendra kumar Pali (N. A. W. 5) is Assistant Grade 3 and their presence at the time to get the matter compromise between the parties appear to be natural. Consequently, there is overwhelming reliable evidence to establish the fact that the attempts were made by appellant/husband to bring back his wife for resuming the matrimonial relation but the respondent/wife had refused to restore the conjugal rights. ( 12. ) IT is laid down under Section 13 of the Act that the relief of the divorce will not be extended to the party who tries to take the advantage of his own wrong. The refusal without rhyme or reason of respondent/wife to resume the matrimonial relations even after the decree of restitution of conjugal rights proves that on account of the conduct and act of the respondent/wife, there was no resumption of the conjugal rights in pursuance of the decree of the court to the effect. Respondent/wife has violated the decree of restitution of conjugal rights and she has flouted the intention and spirit of the decree of restitution of conjugal rights. Respondent/wife has violated the decree of restitution of conjugal rights and she has flouted the intention and spirit of the decree of restitution of conjugal rights. Thus, I fully agree with the contention of the learned Counsel that Trial Court has not properly appreciated the glaring wrong committed by respondent/wife in destroying and flouting the dictates of the decree of restitution of conjugal rights. ( 13. ) IN case of Dharmendra Kumar Vs. Usha Kumar ( AIR 1977 SC 2218 ) the wife applied for divorce under Section 13 (1-A) (ii) of the Act after passing of the decree of restitution of conjugal rights in her favour, on the averments that the decree had remained unfulfilled, and the defence of the husband was that wife refused to live with him and as such the decree can not be passed. It was observed that in order to a wrong within the meaning of section 23 (1) (a), the conduct alleged has to be something more than mere disinclination to agree to an offer of re-union. It must be misconduct serious enough to justify denial of the relief. Thus, it is clear from the aforesaid observations of the Supreme Court that a spouse who had obtained a decree of restitution of the conjugal rights, fails to impress the other spouse to join him or refuses to comply with it, he or she will be in the wrong and the petition for divorce under Section 13 (1-A) (ii) will fail. From the inception the respondent/wife was not ready to comply with the decree of restitution of conjugal rights. On the other hand the respondent/wife refused to live with her husband in pursuance of decree of restitution of conjugal rights. On account of such balatent refusal of the respondent/wife to resume the cohabitation after decree of restitution of conjugal rights, her misconduct becomes of serious in nature and disentitles her to seek the divorce due to the bar of section 23 (1) (a) of the Act. The provisions of Section 23 (1) (a) of the Act in the circumstances of present case should be brought in full swing against the respondent/wife. Consequently, the respondent/wife should not be allowed to dissolve the marriage by decree of divorce under Section 13 (1-A) (ii) of the act due to Section 23 (1) (a) of the Act. ( 14. The provisions of Section 23 (1) (a) of the Act in the circumstances of present case should be brought in full swing against the respondent/wife. Consequently, the respondent/wife should not be allowed to dissolve the marriage by decree of divorce under Section 13 (1-A) (ii) of the act due to Section 23 (1) (a) of the Act. ( 14. ) IT is submitted that the respondent/wife has filed her petition within four months from the rejection of her appeal filed by her before the high Court. It is held in case of Smriti Banerjee Vs. Tapan Kumar Banerjee (AIR 1986 Calcutta 284) that the period of one year will commence from the date of decree of the Trial Court and not from the date of decree of the appellate Court. On account of the aforesaid observation in Smitri Banerjee case (supra), it is held that the petition of respondent/wife was not premature. ( 15. ) THE learned Senior Counsel for the respondent has argued that the appellant and the respondent are living separately from 1995 and the relations between them are virtually dead and the divorce be granted on the ground that the marriage has irretrievable broke down. In the present case doctrine of want of sincerity and the bar of equities maxim "he who comes to equity must come with clean hand" will be applicable against the respondent/wife. The party is entitled to matrimonial relief if it is shown that he or she is not guilty of wrong or disability. This is the extreme case of the glaring fault of the respondent/wife in defeating the decree of restitution of conjugal rights and as such the provisions of Section 23 (1) (a) will be attracted to disentitle the respondent/wife to the grant of decree of divorce. In the aforesaid back drop she can not claim the dissolution of marriage on the ground of irretrievability of the matrimonial relationship. ( 16. ) IN the circumstances of the present case, the learned Trial Court has not properly appreciated the glaring wrong of the respondent/wife against the decree of restitution of conjugal rights. The learned Trial Court has also rightly brushed aside the bar of Section 23 (1) (a) of the Act which is applicable in this case with full force. ( 17. ) IN the circumstances of the present case, the learned Trial Court has not properly appreciated the glaring wrong of the respondent/wife against the decree of restitution of conjugal rights. The learned Trial Court has also rightly brushed aside the bar of Section 23 (1) (a) of the Act which is applicable in this case with full force. ( 17. ) THE impugned judgment and decree of the learned Trial Court of dissolution of marriage between the parties is hereby set aside. The appeal is allowed and the petition filed by the respondent/wife is hereby dismissed. Parties bear their own costs on the appeal. First Appeal allowed.