Om Parkash, J.
(1) This appeal, against an order of the learned Additional District Judge, Delhi, has arisen out of a petition, filed by the respondent against the appellant, u/s 13(1A)(ii). Hindu Marriage Act, 1955 (hereinafter referred to as the Act) fur the dissolution of marriage, by a decree of divorce.
(2) The appellant and respondent were wife and husband. They were married on the 27th November, 1956. The appellant had obtained a decree for restitution of conjugal rights on the 17th March, 1961. The respondent had filed the petition, u/s 13(1A)(ii) of the Act, out of which the present appeal has arisen, on the 23rd January, 1965. The ground, on which the dissolution of marriage by a decree of divorce, was sought was that there had been no restitution of conjugal rights, alter the passing of the decree of restitution of conjugal rights in favor of the appellant. It was alleged that, in fact, the parties had never cohabited, alter marriage.
(3) The petition was contested on behalf of the appellant. It was denied that there was no restitution of conjugal rights after the passing of the decree. It was pleaded that after the decree for the restitution of conjugal rights, the parties had lived together as husband and wife at Ahmedabad in November and December 19^2. The allegation of the respondent that there was no consul-nation oi marriage at all, was also controverter. It was averred that the parties had, first, resided and cohabited together for about four days after the marriage at Rewari and again at Kalol in December 1957 for about a week or so and last of all, at Ahmedabad in November and December, 1962. Some preliminary objections against the maintainability of the petition were also taken up on behalf the appellant But those are not relevant for the decision of the appeal, and need not be set out
(4) The learned additional District Judge did not believe the evidence, adduced, by the appellant, in support of her plea that she had lived and cohabited with the respondent at Ahmedabad in November, and December, 1962 He held that there was no restitution of conjugal rights, between the parties after the passing of the decree and that the respondent was entitled to get the marriage dissolved by a decree of divorce. Consequently he allowed the petition of the Respondent and passed a decree oi divorce,
(5) The appellant had also put in an application for the grant of permanent alimony u/s 25 of the act. the learned additional distrist Judge granted Rs,50/P.M. as maintenance to the appellant
(6) The appellant has come up in appeal against the decree passed in favour of the respondent .
(7) It was contended on behalf of the appellant that the learned Additional District Judge seriously erred in rejecting the evidence of the appellant that she and the respodent had lived together at Ahmedabad in November and December 1964. The contention is without any substance, the first piece of evidence relied upon was the photograph ,Ex C-13. this was a photograph of the appellant and the respondent. The case raph had been taken at Ahmedabad in November 1962, when the appellant and the resplendent were living there. The respondent denied that the appellant had lived with him in November, 1962 or that he had set for the photograph Ex. C-13. The Explanation of the respondent was that he had given hi'' photograph to the parents of-the appellant at the time of engagement and that that photograph might have been used to prepare the photograph .Ex Cl3. The admissibility of the photograph ,was also objected to on behalf of the respondent.
(8) The appellant had examined Krislan Kant of Ahmedabad, on commission, to prove the photograph .Ex. C-13, Krishan Kant had not taken the photograph The negative of the photograph was not produced. The primary evidence of a photograph is its negative. The photograph .Ex. C-13, was not properly proved. It was inadmissible in evidence.
(9) The evidence of Krishan Kant, was extremely unsatisfactory. Krishan Kant stated, in examination in-chief, that the negative of Ex. C-13 had been given to the respondent but in cross examination, he admitted that it might have been given to the appellant. In the next breath, Krishan Kant stated that he had identified the photograph from the negative. The inference was that the negative was in his possession and that his statement that the negative had been given to the respondent was incorrect, Krishna Kant admitted that the negatives of all the photographs ,prepared in his Studio from 1960 onwards, were in the Studio, This admission further showed that the negative of the photograph Ex. C-33, was in the Studio but that had been purposely with held. Krishan Kant stated that the bill, Ex. C l8 related to the photograph Ex C 13. There is nothing in the bill t3 connect it with the photo graph, Ex Cl3 Krishan Kant failed to explain how he connected the bill, Ex. C-15, with the photograph Ex. C-13. The date of delivery, given in the bill. Ex C15,is 8th December ,1962, while on the office copy, the dale of delivery is 1st December, 1902. The facts set forth above lead to the inference that Krishan Kant was not a truthful witness and photograph .Ex. C-13, was not genuine.
(10) Besides the photograph .Ex. C-13, the appellant had appeared as her own witness and produced her father Shanu Ram, R. W 6, Ganga Ram, R. W. 1, Madan Lal, R W. 3, Bishan Das, R. W. 4 and Ganpat Ram, R. W 5 to prove that she had resided with the responded at Ahmedabad in November and December, 1962. The statement of the appellant was very unsatisfactory. The appellant had stated that her maternal uncle had written a letter and then sent a telegram to her father that the appellant should be brought to Ahmedabad Thereup3n, the father of the appellant had taken her to Ahmadabad. The appellant had further stated that she had stayed with her maternal uncle for one week and the respondent used to visit her at the house of her maternal uncle Thereafter, the appellant was taken to Sabarmati where the respondent bad taken a quarter on rent. The appellant stated that she had lived there with the respondent in Sabarmati in November and December, 1962. In cross-examination, the appellant stated that she could not state whether the respondent who was a Railway Guard, was on night or day duty. It is very strange that the appellant, who was alleged to have lived with the respondent for two months, could not state whether the respondent was on night or day duty. The appellant could not give the name of any male or female member, who was residing in the house in which the appellant and the respondent were alleged to have resided. The appellant failed to mention the name of the Mohalla in which the quarter was situated. The appellant was also questioned about the photograph .Ex. C-13. The appellant could not state whether the photographer was a Hindu or a Sikh or was a young man or an old man It was suggested to the appellant that the photograph ,Ex C-13, was not the photograph of the appellant and the respondent but that two separate photographs had been given to the photographer and from those two photographs , photograph .Ex. C-13, was prepared. The appellant neither denied nor admitted this suggestion,
(11) The statement of Shanu Ram, R. W. 6, the father of the appellant, was equally unsatisfactory. He admitted he was at Ahmedabad only for 3.4 day?. But still he made the assertion that the appellant and the respondent had lived at the house of the maternal uncle of the appellant for 8 days. Shanu Ram, R.W. 6, could not give the month in which he had taken the appellant to Ahmedabad. Madan Lal, R.W. 3, Bishan Das, R.W. 4, and Ganpat Ram, R. W. 5, were related to the father of the appellant and were obviously interested witnesses. Ganga Ram, R. W. 1, was a friend of Bishan Das, R. W. 4. The Learned Additional District Judge has pointed out several material discrepancies and improbabilities in the evidence of these witnesses. It is unnecessary to cover the same ground in this appeal
(12) There is another significance which goes against the contention of the appellant that she had lived with the respondent in November, 1962. It is not denied that litigation is going on between the parties since the year 1959. In that year, the appellant had filed a suit for the recovery of maintenance and dowry against the respondent and others. The suit was filed in forma pauperis. The trial Court had rejected that application of the appellant. On revision to the High Court, the order of trial Court was set aside and the appellant was allowed to sue in forma pauperis. The plaint was, again, rejected by that trial Court in 1964. A revision against the order of the trial Court is pending in High Court. The appellant had then filed another suit for the recovery of maintenance on the 6th October, 1964- Ex. A.N.2/A is the copy of the plaint field. in that suit. In para 3 of the plaint, it was stated that the respondent had taken the appellant from Delhi to Kalol in December, 1957, that after sometime, the appellant had been sent back to Delhi in three clothes and that the appellant had been living with her parents since then. Again in para. 8 of the plaint, it was stated that the respondent had deserted the appellant since December, 1957. Had the appellant lived with the respondent in November and December,. 1962, this fact would have found mention in the plaint-. Ex. AW-2/A, which was filed in 1964 not only that, the appellant was examined in the suit on the 19th March, 1965- Ex AW/3 is the copy of her statement. The appellant had unequivocally stated that she was residing with her parents for the last 8 years. In face of the above facts, it is difficult to believe that the appellant had stayed with the respondent in November and December, 1962.
(13) The evidence, adduced by the appellant, in support of her assertion, that she had lived with the respondent in the months of November, and December, 1962, was extremely unsatisfactory and was unreliable The trial Court was right in holding that the appellant had failed to prove that there was restitution of conjugal rights after the passing of the decree in her favor.
(14) The learned counsel for the appellant vehemently contended that even if it be held that there was no restitution of conjugal rights, between the parties, for more than two years after the passing of the decree in favor of the appellant, the relief of dissolution of marriage by a decree of divorce should be refused to the respondent u/s 23(1)(a) of the Act, as he was taking advantage of his own wrong is seeking that relief. The argument was that the blames lay on the respondent for not only complying with the decree for restitution of conjugal rights but also refusing to keep and maintain the appellant when approached in that behalf. The learned counsel cited Kishni Bxi v. Dr. Bhtoa Naih in support of his contention.
(15) The decision of the question, whether a spouse, who has failed to comply with the decree of restitution of conjugal rights, and then applies for the dissolution of marriage by a decree of divorce, on the ground that there has been no restitution of conjugal rights for two years or upwards, is disentitled to the relief asked for, u/s 23(1)(a) of the Act will depend on the facts and circumstances of each case. But the failure to perform the decree of restitution of conjugal rights, per se, without more, will not disentitle the spouse to the relief. To hold otherwise will, in most cases, defeat the purpose of the amendment, made in section 13, by the Hindu Marriage (Amendment) Act 1964, (44 of 1964) whereby section H (IA) was introduced. Before the amendment, the relief to obtain divorce, on the ground that there had been no cohabitation for a period of two years or upwards, after the passing of the decree for restitution of conjugal rights, was available only to the spouse who had obtained the decree and not to the defaulting spouse. After the amendment, the relief is available to either party to the marriage and the spouse, against whom the decree for restitution of conjugal rights, had been passed but who had failed to comply with the decree, can also apply for the dissolution of marriage by a decree of divorce, u/s 13(1A)(ii) of the Act, on the ground that there has been no restitution of conjugal rights, between the parties, for a period of two years or upwards after the passing of the decree for restitution of conjugal rights.
(16) The question, which falls for decision, is whether, keening in view the tacts and circumstances of the present case, it can be said that the respondent in seeking the relief of divorce, was taking advantage of bids own wrong as he had failed to comply with the decree of restitution of conjugal lights and had refused to keep and maintain the appellant when approached in that behalf in July, 166,3. it. has already been pointed out that htoly contested litigation is going on between the parties since the year 1989. The appellant had instituted a suit for maintenance and recovery of dowry against the respondent and his relatives in 1959. The petition for restitution of conjugal rights was also instituted in 1959. Another suit for maintenance has also been instituted by the appellant. It is clear that th3 relations between the pai ties, were extremely strained In the circumstances ,the respondent could not be expected to invite the appellant to live with him. The respondent had explained to the relatives of the appellant ,who had approached him in July, 19b3, to keep the appellant, that, at first, she should withdraw all the cases. and then they should approach his father for compromise .This was not an unreasonable attitude. Incidentally, it may be mentioned that the case of the appellant, as set forth, in the written statement, was thus there had been restitution of conjugal rights after the passing of the decree in 1961 and that the parties .had lived together in Ahmedabad in November and December, 1962. It was not her case that the respondent had failed to comply with the decree of restitution of conjugal lights.
(17) The facts and circumstances of the case do not warrant the conclusion that the respondent was taking advantage of his own wrong in seeking divorce on the ground there had been no restitution of conjugal rights for two years or upwards after the pausing of the decree of restitution of conjugal rights. The respondent was not dissented to the relief of divorce because of the provisions of section 23(IUa) of the Act.
(18) The authority, 1967 PL.R 59, relied upon by the learned counsel for the- appellant, is distinguishable. The husband in that case, had refused to keep his wife on the ground that he apprehended that the wife was likely to involve him in a false case. That ground was not borne out by any evidence on record. In the present case, the reason, given by the respondent for his refusal to keep and maintain the appellant, was that she had instituted cases against him and that she should, at first. withdraw those cases. Another distinguishing feature of the case, cited, was that in that case, the wife had not taken any steps to claim maintenance from the husband. In the present case, the appellant had instituted two suits for maintenance and had also claimed maintenance by an application, u/s 25 of the Act.
(19) The learned counsel for the appellant did not advance any arguments against the quantum of maintenance, fixed by the trial Court. That finding is affirmed.
(20) Before closing, it may be pointed out that at the fag end of arguments, an application u/s 151, Civil Procedure Code, was put in, on behalf of the respondent that as the appellate had been recovering permanent alimony from the respondent on the basis of order of the trial Court she was estopped from challenging the validity of the older, dissolving the marriage by a decree of divorce. The learned .counsel for the appellant objected to the question of estoppel baing raised at the fag end of arguments. It is unnecessary to say anything more about the application as the appeal is liable to be dismissed on merits it. The appeal fails and is dismissed. with costs.
