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2012 DIGILAW 58 (CHH)

SEEMA PANDEY v. VIJAY KUMAR PANDEY

2012-02-14

G.MINHAJUDDIN, I.M.QUDDUSI

body2012
JUDGMENT As per Hon'ble Shri G. Minhajuddin, J. :- 1. This appeal has been filed under Section 19(1) of the Family Courts Act, 1984 against the judgment and decree dated 30th November, 2007 passed by the Family Court, Korba (CO) in Civil Suit No. 52-A/07 whereby the application of the respondent/husband under Sections 13(I)(ia) and 13(I)(Hi) of the Hindu Marriage Act, 1955 for disso lution of marriage by a decree of divorce has been allowed. 2. Facts not /in dispute are that marriage between the parties was solemnized on 3.7.2002 at Bilaspur as per Hindu customs and ceremonies. That prior to filing of this application, the respondent/husband had earlier filed an application under Sections 13(1 )(ia) and 13(1)(iii) of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce on 24.2.2005, which was registered as Civil Suit No.29A/05 and in which, a decree for judicial separation under Section 10 of the Hindu Marriage Act, 1955 was passed on 7.4.2006.' 3. Case of the respondent/husband, in brief, is that right from the day one after the marriage, the appellant/wife was treating the respondent/husband with cruelty saying that she was not willing to marry the respondent, she was forced to marry him by her parents and she wants divorce from him. The respondent intimated about the same to his in-laws, whereupon they took the appellant to Balco. The appellant returned from Balco after 15 days alongwith her brother to her matrimonial home. However, again she started harassing and quarreling with the respondent and said that she will not reside with the respondent and she wants divorce. Thereafter, the respondent/husband called his in-laws and took the appellant/wife to his acquaintance Prakash Sharma, Engineer at Raipur, who advised them to get the appellant treated by psychiatrist Dr. Prakash Narayan Shukla and accordingly, the appellant/wife was being treated by the psychiatrist. 4. Further, the respondent/husband has averred that the appellant used to remain normal till she used to take medicines of Dr. Shukla, however, as soon as she stopped taking medicines, her conduct towards the respondent used to become unusual and cruel. When the appellant was pregnant, she was taken to Balco by her parents for delivery and on 27.8.2003, she delivered a male child. Shukla, however, as soon as she stopped taking medicines, her conduct towards the respondent used to become unusual and cruel. When the appellant was pregnant, she was taken to Balco by her parents for delivery and on 27.8.2003, she delivered a male child. After one month of the delivery, when the respondent took the appellant back to her matrimonial home, she refused to live in the joint family with her in-laws, whereupon the respondent made arrangement for her living separately. On 19.10.2003 at about 7.30 pm when the respondent returned from his shop, he found that the appellant was not at home, the door was open and she had gone somewhere alongwith her child. On enquiry, he came to know that she had proceeded towards Bhatapara. Thereafter, he after informing about the same to the relatives of the appellant went to Bhatapara in search of the appellant. However, when she could not be traced, he lodged a missing report at Police Outpost-Maro (Nandghat) on 20.10.2003. But after lodging report, he continued to search her and on the same date (20.10.2003) at late night, he found his wife (appellant) in a slum area of Bhatapara in the house of one rickshawala. When the respondent asked the appellant to come back, she refused to accompany him. Thereupon, the respondent informed about the same to the grand-parents of the appellant, on which they came there at about 2.30 am and took the appellant and her child back to Bilaspur, from where the appellant went to her parents' house at Balco. The respondent tried to keep the appellant and his child with him, but she refused to live with him. The grandfather of the appellant had told the respondent that the appellant is being treated by Dr. Das, Psychiatrist, at Apollo Hospital, Bilaspur. 5. Contention of the respondent/husband is that he tried his level best to keep the appellant with him, but all the time the appellant refused to live with him. On 10.11.2003 he submitted an application before the Parivar Paramarsh Kendra, Bilaspur and another application on 28.12.2004 before the Police Station - Mandla. He had earlier also filed an application for restitution of conjugal rights before the Family Court but his wife (appellant) refused to live with him. On 10.11.2003 he submitted an application before the Parivar Paramarsh Kendra, Bilaspur and another application on 28.12.2004 before the Police Station - Mandla. He had earlier also filed an application for restitution of conjugal rights before the Family Court but his wife (appellant) refused to live with him. However, on the persuasion of the Family Court, she came to live with the respondent at her matrimonial home alongwith her mother and Bua (sister of appellant's father). At that time, the appellant also treated her mother and Bua with cruelty, therefore, her mother took the appellant back to Balco. Thus, having been fed up with the conduct of the appellant, the respondent was compelled to file an application for grant of decree of divorce before Family Court. However, the learned Family Court on 7.4.2006, instead of granting a decree of divorce, granted a decree of judicial separation under Section 10 of the Hindu Marriage Act and since then the appellant is residing separately from the respondent and he has been deprived of his conjugal rights. In these circumstances, after one year from the said order of judicial separation, the respondent filed an application for grant of a decree of divorce. 6. The appellant/wife, denied the adverse averments made by the respondent/husband in his above application against the appellant/wife, and has stated, that the respondent was not satisfied with their marriage and used to beat her in connection with demand of dowry. The respondent had unnecessarily and forcibly taken her to psychiatrist Dr. Prakash Narayan Shukla and in connivance with the doctor, was giving her such medicines which could cause her mental disorder. The respondent had told her (appellant) parents that she is mentally sick and all this is being done so that he (respondent) could give divorce to the appellant and contract second marriage for the sake of money. 7. The appellant/wife has further averred that her husband (respondent) is a doctor by profession and in order to spoil her mental balance, he used to give her medicines forcibly and on her refusal, he used to beat her. When she was pregnant, he had thrown her out of her matrimonial home after beating her. Even after delivery of child, he used to torture her and threaten that he would hand over the child to his elder brother and after giving her' divorce, contract second marriage. When she was pregnant, he had thrown her out of her matrimonial home after beating her. Even after delivery of child, he used to torture her and threaten that he would hand over the child to his elder brother and after giving her' divorce, contract second marriage. On 19.11.2003, the respondent had forcibly asked her to sign the divorce papers and when she refused, he beat her and threatened that if she did not sign those papers till evening, he would kill her. Therefore, looking to the imminent danger to her life, she alongwith her child Mukesh left her matrimonial home at night. 8. The appellant/wife has further averred in her reply that after obtaining a decree for judicial separation, the respondent/husband used to abuse and threaten her and her parents on telephone that if the appellant/wife dares to come back to her matrimonial home, he (respondent) would kill her. Her parents requested the respondent/husband and his relatives several times for keeping the appellant, but they refused. The respondent/husband did not pay the amount of maintenance to the appellant/wife, however, even then she did not lodge any report or initiate any proceeding against him in this regard because she (appellant) wants to live with the respondent. Hence, with the aforesaid averments, the appellant/wife prayed for rejecting the application of the respondent/husband for grant of decree of divorce. 9. However, learned Family Court, after hearing counsel for the respective parties, considering the material available on record, by the impugned judgment and decree allowed the application of the respondent/husband under Section 13 of the Hindu Marriage Act and dissolved the marriage between the parties. 10. Heard learned counsel for the parties, perused the record of the Family Court as also the impugned judgment. 11. It is not in dispute that prior to filing of the present application under Section 13 of the Hindu Marriage Act, 1955 (in short "the Act, 1955"), the respondent/husband had on 24.2.2005 filed an application for divorce under Section 13 of the Act, 1955 on the ground of cruelty and mental sickness of the appellant/wife, in which by judgment dated 7.4.2006, a decree for divorce was refused and a decree for judicial separation was passed in favour of the respondent/husband and against the appellant/wife. No appeal was filed by the appellant/wife 'against the said judgment and decree dated 7.4.2006 within the period of limitation and the same was filed belatedly as FA (M) No. 12/08, which was dismissed as barred by limitation vide order dated 6.5.2009. After the lapse of statutory period of one year, the present suit was filed on 3.9.2007 for dissolution of marriage by a decree of divorce on the ground of non-resumption of cohabitation after passing of decree for judicial separation as well as on the ground of mental sickness of the appellant/wife, in which after trial the impugned judgment and decree dated 30.11.2007 has been passed. 12. It is now well settled that only by obtaining a decree for judicial separation and after the lapse of statutory period of one year the either party to the marriage does not get an absolute right to have a decree for divorce in his or her favour on presentation of the application for divorce under Section 13 of the Act, 1955. Even after obtaining a decree for judicial separation, either of the parties to the marriage seeking divorce will have to further prove that after passing of such decree, despite all efforts having been made by him or her, there has been no resumption of cohabitation between them due to refusal on the part of the other party. In this connection, judgment of the Hon'ble Supreme Court in the matter of Hirachand Srinivas Managaonkar Vs. Sunandal needs to be mentioned, in which, in paras 13, 16 and 18, the Hon'ble Supreme Court has observed as under: "13. The contention that the right conferred by sub- section (1-A) of Section 13 is absolute and unqualified and that this newly conferred right is not subject to provisions of Section 23 is fallacious. This argument appears to be based on the erroneous notion that to introduce consideration arising under Section 23(1) into the determination of a petition filed under sub-section (1-A) of Section 13 is to render the amendments made by the Amending Act No.44 of 1964 wholly meaningless. As noted earlier, prior to the amendment under clauses (viii) and (ix) of Section 13(1), the right to apply for divorce was restricted to the party which had obtained a decree for judicial separation or for restitution of conjugal rights. Such a right was not available to the party against whom the decree was passed. As noted earlier, prior to the amendment under clauses (viii) and (ix) of Section 13(1), the right to apply for divorce was restricted to the party which had obtained a decree for judicial separation or for restitution of conjugal rights. Such a right was not available to the party against whom the decree was passed. Sub-section (1-A) of Section 13 which was introduced by the amendment confers such a right on either party to the marriage so that a petition for divorce can after the amendment be filed not only by the party which had obtained a decree for judicial separation or for restitution of conjugal rights but also for the party against whom such a decree was passed. This is the limited object and effect of the amendment introduced by Act No.44 of 1964. The amendment was not introduced in order that the provisions contained in Section 23 should be abrogated and that is also not the effect of the amendment. The object of sub-section (1-A) vas merely to enlarge the right to apply for divorce and not to make it compulsive that a petition for divorce presented under sub-section (1-A) must be allowed on a mere proof that there was, no cohabitation or restitution for the requisite period. The very language of Section 23 shows that it governs every proceeding under the Act and a duty is cast on the Court to decree the relief sought only if the conditions mentioned in the sub-section are satisfied, and not otherwise. Therefore, the contention raised by the learned counsel for the appellant that the provisions of Section 23(1) are not relevant in deciding a petition filed' under subsection (1-A) of Section 13 of the Act, cannot be accepted. 16. In this connection it is also necessary to clear an impression regarding the position that once a cause of action for getting a decree of divorce under section 13(1-A) of the Act arises the right to get a divorce crystallizes and the Court has to grant the relief of divorce sought by the applicant. This impression is based on a misinterpretation of the provision in section 13(1-A). This impression is based on a misinterpretation of the provision in section 13(1-A). All that is provided in the said section is that either party to a marriage may present a petition for dissolution of the marriage by a decree of divorce on the ground that there has been no resumption of cohabitation between the parties to the marriage for a period of one year or more after the passing of a decree for judicial separation in a proceeding to which they were parties or that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or more after the passing of a decree for restitution of conjugal rights in a proceeding to which both the spouses were parties. The section fairly read, only enables either party to a marriage to file an application for dissolution of the marriage by a decree of divorce on any of the grounds stated therein. The section does not provide that once the applicant makes an application alleging fulfilment of one of the conditions specified therein the Court has no alternative but to grant a decree of divorce. Such an interpretation of the Section will run counter to the provisions in section 23(1)(a) or (b) of the Act. In section 23(1) it is laid down that if the Court is satisfied that any of the grounds for granting relief exists and further that the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief and in clause (b) a mandate is given to the Court to satisfy itself that in the case of a petition based on 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 in (bb) when a divorce is sought on the ground of mutual consent such consent has not been obtained by force, fraud or undue influence. If the provisions in section 13(1-A) and section 23(1)(a) are read together the position that emerges is that the petitioner does not have a vested right for getting the relief of a decree of divorce against the other party merely on showing that the ground in support of the relief sought as stated in the petition exists. It has to be kept in mind that relationship between the spouses is a matter concerning human life. Human life does not run on dotted lines or charted course laid down by statute. It has also to be kept in mind that before granting the prayer of the petitioner to permanently snap the relationship between the parties to the marriage every attempt should be made to maintain the sanctity of the relationship which is of importance not only for the individuals or their children but also for the society. Whether the relief of dissolution of the marriage by a decree of divorce is to be granted or not depends on the facts and circumstances of the case. In such a matter it will be too hazardous to lay down a general principle of universal application. 18. In this connection another question that arises for consideration is the meaning and import of section 10(2) of the Act in which it is laid down that where a decree for judicial separation has been passed it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so. The question is whether applying this statutory provision to the case in hand, can it be said that the appellant was relieved of the duty to cohabit with the respondent since the decree for judicial separation has been passed on the application filed by the latter. On a fair reading of the sub-section (2) it is clear that the provision applies to the petitioner on whose application the decree for judicial separation has been passed. On a fair reading of the sub-section (2) it is clear that the provision applies to the petitioner on whose application the decree for judicial separation has been passed. Even assuming that the provision expends to both petitioner as well as the respondent it does not vest any absolute right in the petitioner or the respondent not to make any attempt for cohabitation with the other party after the decree for judicial separation has been passed. As the provision clearly provides the decree for judicial separation is not final in the sense that it is irreversible; power is vested in the Court to rescind the decree if it considers it just and reasonable to do so on an application by either party. The effect of the decree is that certain mutual rights and obligations arising from the marriage are as it were suspended and the rights and duties prescribed in the decree are substituted therefor. The decree for judicial separation does not sever or dissolve the marriage tie which continues to subsist. It affords an opportunity to the spouse for reconciliation and re-adjustment. The decree may fall by a conciliation of the parties in which case the rights of respective parties which float from the marriage and were suspended are restored: Therefore the impression that section 10(2) vests a right in the petitioner to get the decree of divorce notwithstanding the fact that he has not made any attempt for cohabitation with the respondent and has even acted in a manner to thwart any move for cohabitation does not flow from a reasonable interpretation of the statutory provisions. At the cost of repetition it may be stated here that the object and purpose of the Act is to maintain the marital relationship between the spouses, and not to encourage snapping of such relationship." 13. In respect of his application under Section 13 of the Act, 1955 for dissolution of marriage by a decree of divorce, the respondent/husband has examined himself and Dushyant Sharma as PW-1 & PW-2 respectively. In addition to oral evidence, the respondent/husband has filed three documents i.e. Exs.P/1, P/2 and P/3, which are copies of the judgment and decree dated 7.4.2006 passed in Civil Suit No.29-A/05 by Family Court, Korba, and the certificate said to have been issued by Apollo Hospital, Bilaspur regarding treatment of the appellant/wife by Dr. D.K. Das, Psychiatrist, from 9.12.2003 to 8.8.2006. D.K. Das, Psychiatrist, from 9.12.2003 to 8.8.2006. The respondent/husband has alleged that his marriage with the appellant/wife was solemnized on 3.7.2002 and since inception, behaviour of the appellant/wife towards the respondent/husband was not normal and was cruel. He has further alleged that his wife (appellant) was suffering from mental disorder and this fact was suppressed by the parents of the appellant from the respondent. When after marriage, the appellant was not behaving in a normal way and was treating the respondent with cruelty, that the respondent got her examined by Dr. Prakash Narayan Shukla at Raipur, who diagnosed that the appellant was suffering from mental disorder and consequently, treatment was started. The respondent/husband (PW-1) has stated that the appellant/wife used to remain normal till she would take medicines regularly, but the moment the medicines were stopped, that she again used to behave in an abnormal manner. 14. According to the appellant/wife, the respondent/husband used to threaten her that he will give her divorce and marry another lady. The appellant (DW-1) has also stated that the respondent used to pressurize her to sign the papers for obtaining divorce by mutual consent and when she used to refuse, the respondent used to beat her mercilessly. In order to show that the appellant is suffering from mental problem, her husband (respondent) had taken her to a psychiatrist at Raipur and was administering medicines to her against the advice of Dr. Prakash Narayan Shukla, Psychiatrist. 15. Although the respondent/husband has alleged that from the very inception, Jhe appellant/wife was suffering from mental disorder and he had got her treated by Dr. Prakash Narayan Shukla at Raipur, but neither Dr; Prakash Narayan Shukla has been examined, nor any certificate issued by the said doctor has been submitted by the respondent to prove the fact that the appellant/wife is suffering from mental disorder. 16. The respondent/husband (PW-1) has stated that the appellant/wife has been treated from 9.12.2003 to. 8.8.2006 for mental problem by Dr. D.K. Das of Apollo Hospital, Bilaspur. In this regard, the respondent/husband has filed a certificate (Ex.P/3) said to have been issued by the Management of Apollo Hospital, which has been obtained by the respondent under Right to Information Act. 16. The respondent/husband (PW-1) has stated that the appellant/wife has been treated from 9.12.2003 to. 8.8.2006 for mental problem by Dr. D.K. Das of Apollo Hospital, Bilaspur. In this regard, the respondent/husband has filed a certificate (Ex.P/3) said to have been issued by the Management of Apollo Hospital, which has been obtained by the respondent under Right to Information Act. However, for proving the fact that the appellant/wife' was treated for mental problem by Dr.D.K. Das, Psychiatrist, Apollo Hospital, neither the concerned doctor has been examined, nor records of the hospital regarding treatment of the appellant/wife has been summoned. In such a state of affairs, it cannot be said to have been proved that the appellant/wife was treated for any mental disorder and if so, what was the extent of degree of mental disorder. In addition to this, in the proceedings for divorce filed by the respondent/husband, the appellant/wife has herself cross-examined the respondent/husband (PW-1) as well as his witness Dushyant Sharma (PW-2). The manner in which these witnesses have been cross-examined by the appellant/wife, it cannot be said that the appellant/wife is suffering from any mental disorder. The fact of appellant/wife suffering from mental disorder has been specifically denied by the appellant/wife as well as her witness. The appellant/wife and her mother Smt. Pushpa Tiwari (DW-2), both have stated that the respondent/husband was continuously torturing the appellant mentally and physically on account of which she (appellant) could not sleep and consequently, she was treated at Apollo Hospital, Bilaspur. As such, the respondent/husband has failed to prove that his wife (appellant) is suffering from any mental disorder, which is of such a degree rendering cohabitation between them impossible. 17. This is not in dispute that a son named Mukesh @ Vishal was born out of the wedlock on 27.8.2003, who is presently residing with his mother (appellant) at his maternal grand parents' house. The respondent/husband, in order to show that the appellant/wife is suffering from mental disorder, has stated that on 19.10.2003 in his absence, the appellant/wife had left her matrimonial home without informing him and when he returned in the night, he found the house open. The respondent/husband, in order to show that the appellant/wife is suffering from mental disorder, has stated that on 19.10.2003 in his absence, the appellant/wife had left her matrimonial home without informing him and when he returned in the night, he found the house open. and on search, she was found alongwith her infant child at the residence of a rickshawwala in the slum area of Bhatapara, Thereafter, on being asked, the appellant/wife refused to come back with the respondent, on which the respondent informed her grand parents, who came from Bilaspur by car and took away the appellant and the infant child alongwith them from Bhatapar to Bilaspur. 18. In this regard, appellant Seema Pandey (DW-1) has stated that on 19.10.2003 before leaving her matrimonial home in the afternoon, the respondent/ husband had asked her to sign the papers with regard to obtaining divorce by mutual consent and on her refusal, she was brutally beaten and threatened that if she does not sign those papers till his (respondent) return in the evening, then he will kill her as well as her infant child. The appellant/wife has further stated that in these circumstances, with intent to save the life of her infant child and herself, that she had left her matrimonial home on 19.10.2003 before the respondent's return and had gone to Bhatapara after informing her maternal grand parents to come to Bhatapara and take her to Bilaspur. 19. The respondent/husband has filed certified true copy of the judgment and decree dated 7.4.2006 passed in the previously instituted Civil Suit No.29N05 in the Court of Judge, Family Court, Korba, which has been marked as Ex.P/1 & P/2. It is virtually not in dispute that on 19.10.2003 in the absence of the respondent/husband, the appellant/wife alongwith her infant child had left her matrimonial home at Narayanpur and on the next day i.e. 20.10.2003, she was found by the respondent in the house of one rickshawala in the slum area of Bhatapara, from where she was taken by her maternal grand parents to Bilaspur. In the previously instituted Civil Suit No.29-A/05, the present respondent Vijay Kumar Pandey (PW-1) has examined the said rickshawala named Kalia as his witness. 20. In the previously instituted Civil Suit No.29-A/05, the present respondent Vijay Kumar Pandey (PW-1) has examined the said rickshawala named Kalia as his witness. 20. The appellant/wife Smt. Seema Pandey (DW-1) has stated that on 19.10.2003 as her husband (respondent) had threatened her that in case she does not sign the divorce papers till his return, then he will kill her and her infant child, that she had left her matrimonial home alongwith her child before the return of her husband (respondent) to save their life and had gone to Bhatapara. 21. Although record of the previously instituted Civil Suit No.29-A/05 of the Court of Family Court, Korba is not available before us, but from perusal of para-21 of the judgment dated 7.4.2006 passed in the said civil suit, it is clear that an observation has been made by the Family Court while discussing the evidence of that rickshawala Kalia, who has stated of his own that on arrival of the respondent/husband Vijay Kumar Pandey at his residence at Bhatapara in search of his wife (appellant) Smt. Seema Pandey, the appellant/ wife had requested him not to send her with her husband (respondent) because he (respondent) will kill her. Thus, from this alongwith totality of the facts and circumstances as well as the preponderance of probabilities, if stands established that on 19.10.2003, the appellant had not left her matrimonial home of her own accord, but on account of threatening given by her husband (respondent). 22. So far as making of efforts on the part of the respondent/husband for resumption of cohabitation after passing of decree of judicial separation on 7.4.2006 and refusal to cohabit on the part of the appellant/wife, is concerned, the respondent/husband Vijay Kumar Pandey (PW-1) has stated that after passing of the decree of judicial separation on 7.4.2006, he had continuously made efforts for a period of one year to bring her wife (appellant) and the child back to his home, but the appellant/wife had refused to cohabit with the respondent/husband. The respondent has further stated that whenever he tried to talk to his wife (appellant), either her parents did not permit him to talk to her or the appellant herself refused to talk to him when he had occasion to talk to her on telephone. The respondent has further stated that whenever he tried to talk to his wife (appellant), either her parents did not permit him to talk to her or the appellant herself refused to talk to him when he had occasion to talk to her on telephone. She used to say that she does not want either to talk to him or to cohabit with him and she had threatened that if he' (respondent) continues to contact her on telephone, she will lodge a report against him and will implicate him. Except his statement, the respondent/husband had not adduced any evidence, either oral or documentary, to substantiate his statement that after passing of the decree of judicial separation, he had continuously tried for resumption of cohabitation. On the contrary, the appellant/ wife and her parents as well as her maternal uncle Basant Kumar Shukla (DW3) have stated that after passing of the decree of judicial separation on 7.4.2006, they had continuously tried to send the appellant back to live with her husband (respondent), but the respondent as well as his family members refused to keep her and had stated that the respondent will divorce her, he will perform second marriage and will also take away the child and give him to his elder brother. 23. The respondent/husband had previously sought divorce on the ground of cruelty and unsoundness of mind of the appellant/wife, but was granted a decree of judicial separation. Subsequently, he had filed a suit for divorce on the ground of non-resumption of cohabitation within the stipulated period as well as on the ground that the appellant/wife is suffering from mental disorder. However, in our view, the respondent/husband, as per the evidence adduced before the Family Court, has been unsuccessful in proving the fact that the appellant is suffering from any mental disorder. On the basis of evidence adduced by the parties, it stands proved that on account of threatening given by the respondent/husband that if the appellant/wife does not sign the papers with regard to divorce by mutual consent, that the appellant/wife alongwith her infant child had left her matrimonial home in the absence of the respondent/husband and had gone to Bhatapara and had called her grand parents to come there and take her to Bilaspur. It is not in dispute that a maintenance order has been passed in favour of the appellant/wife and her child @ Rs.1100/- per month and as per admission of the respondent/husband in the cross-examination, he had paid only a part of the maintenance amount, which had become due. 24. In the present case, the respondent/husband has not only failed to comply with the order of maintenance passed in favour of the appellant/wife and her child, but has been deliberately marking time for expiry of the statutory period of one year after passing of the decree of judicial separation in his favour, so that he may easily get a decree of divorce. In these circumstances, it can reasonably be said that the respondent/husband has not only committed the matrimonial wrong in refusing to provide maintenance to his wife (appellant) and her child, but has further foiled all the efforts made by the appellant/wife and her family members for resumption of cohabitation and thereby he is trying to take advantage of his wrong for getting the relief of divorce. As such, the respondent/husband commits a wrong within the meaning of Section 23 of the Hindu Marriage Act, 1955 and consequently, even after non-resumption of cohabitation within the statutory period, he is not entitled for a decree of divorce under Section 13(1-A) of the Act, because for the same the respondent/husband is himself responsible. Thus, in view of the above discussions of the evidence on record, we are of the opinion that the respondent/husband is not entitled for a decree of divorce and consequently, the impugned judgment and decree of the learned Family Court granting divorce to the respondent/husband deserves to be set aside. 25. In the result, the appeal is allowed. The impugned judgment and decree dated 30th November, 2007 passed by the Family Court, Korba (CO) in Civil Suit No.52-A/07 is set aside and consequently, the said Civil Suit No.52A/07 stands dismissed. No order as to costs. 26. The Additional Registrar (Judicial) is directed to draw up a decree accordingly. Appeal Allowed.