1. The questions that have been referred to me under Clause 36 of the Letters Patent, on a difference of opinion between my Learned brothers Das Ghosh, J. and Ghosh, J., have been formulated by the learned Judges as hereunder :-

"1. Does S.10(2) of the Hindu Marriage Act, 1955 impose any liability on the husband to cohabit with the wife, after the wife obtains a decree for judicial separation against the husband and, if so, does the failure of the husband to discharge this obligation constitute a wrong within the meaning of S.23(1)(a) of the Hindu Marriage Act, 1955

2. Does failure on the part of the husband to pay alimony to the wife, after the wife obtains a decree for judicial separation against him, constitute any wrong, keeping in view the provisions of S.13(2)(iii) of the Act, and if so, does this wrong disentitle the respondent also to get a decree of divorce under S.13(1A) of the Hindu Marriage Act"

2. The facts in brief. The wife appellant obtained in 1980 an ex parte decree for judicial separation against the husband-respondent under S.10 of the Hindu Marriage Act. In 1983, the husband has initiated this present matrimonial proceeding, giving rise to this appeal, for dissolution of the marriage under S.13(1A) of the Act on the ground that there has been no resumption of cohabitation as between the parties since the decree for judicial separation in 1980 and the husband has obtained a decree for divorce which has now been assailed by the wife in this appeal.

3. Das Ghosh, J., is of the view that as the husband has admittedly taken no steps towards resumption of cohabitation after the wife obtained the decree for judicial separation, the granting of a decree for divorce at his instance and in his favour would be allowing the husband to take advantage of his own "wrong" within the meaning of S.23(1)(a) of the Act. According to Das Ghosh, J., even though the wife who obtained the decree for judicial separation was, in view of S.10(2) of the Act, no longer under any obligation to cohabit with the husband, the latter against whom such decree was passed, was very much under such obligation and he admittedly not having done anything towards the discharge of that obligation, is guilty of such misconduct or "wrong" as would disentitle him from obtaining a decree for divorce under S.13(1A) of the Act in view of S.23(1)(a) thereof Ghosh, J., has, however, held that once a decree for judicial separation was passed, though at the instance of the wife and against the husband, the husband was no longer under any such obligation and is not disentitled from obtaining a decree for divorce on the ground of non-resumption of cohabitation between the parties under S.13(1A) of the Act, even though he has taken no steps towards resumption of cohabitation. In view of this difference of opinion between my learned brothers, I have given the matter my anxious consideration and I would express my respectful concurrence with the view of Ghosh, J. and my equally respectful dissent from the view of Das Ghosh, J., I would extract hereinbelow the relevant provisions of the Hindu Marriage Act, 1955 which are material for my present purpose for the facility of discussions :-

"10.

(2) 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.

13.

(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground -

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

23.

(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that -

(a) any of the grounds for granting relief exists and the petitioner..... is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and ...........

(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly."

4. Das Ghosh, J., has held that even "if the wife, obtaining a decree for judicial separation is not under an obligation to cohabit with the husband under S.10(2) of the Act, the husband is to approach the wife for cohabitation before accrual of any cause of action for non-resumption of cohabitation for which the husband can file a suit under S.13(1A) of the Act". In spite of my best efforts, and this I say with great respect to the learned Judge, I have not been able to glean the existence of any such obligation on the part of the husband against whom his wife has obtained a decree for judicial separation. Under the Matrimonial Jurisprudence of any civilised nation, the obligation of the spouse to cohabit with each other must be mutual and bilateral and can never be unilateral and I cannot conceive of a marital state where the matrimonial law would obligate only one of the spouses to cohabit with the other while freeing that other from any such obligation. I take it to be the very purpose of a decree for judicial separation to release both the spouses, and not merely the spouse who has obtained the decree, from marital obligation to cohabit with each other.

5. It is true that S.10(2)in terms provide that "where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent" and it has been urged that the express mention of only the petitioner spouse as the party relieved of the obligation to cohabit should indicate that the respondent spouse is excluded from such relief and is not released of his or her matrimonial obligation to cohabit with the other spouse. But that would be too literal a reading of the relevant provisions entirely divorced from the consideration of the very objects of a decree for judicial separation. I have no doubt that a meaningful and a purposive approach to the provisions of S.10(2) would at once make it clear as to why the petitioner only has been mentioned as the party freed from the obligation to cohabit. As is well known, any subsequent cohabitation between the parties might go a long way to cut at the very root of a decree for judicial separation and, as the later part of S.10(2) itself indicates, might be a ground to pursuade the court to rescind the decree on an application by any party thereto. The earlier part of S.10(2) by providing that "it shall no longer be obligatory for the petitioner to cohabit with the respondent", only makes it expressly clear that the petitioner, who has obtained a decree for judicial separation, may be after a strenous and protracted litigation, can conserve the decree after turning down all approaches or overtures of the respondent towards reconciliation and cohabitation and proceed for a decree for divorce after the statutory period. The provisions have got nothing to do with the obligation of the respondent to cohabit with the petitioner and, as already stated, even de-hors the provisions of S.10(2), both the spouses are relieved from any obligation to cohabit with each other on the passing of a decree for judicial separation. To quote Lord Romer in the House of Lords decision in Cohen v. Cohen (1940) 2 All ER 331 at p. 337, a decree for judicial separation is such a one in the face of which it was out of the question that the husband (i.e. the party against whom the decree was made) should make any attempt to return to the matrimonial home".

6. The Division Bench decision of the Bombay High Court in Jethabhai v. Manabai AIR 1975 Bom 88 [LQ/BomHC/1973/57] appears to be a very clear authority for this view of mine. The question which arose for determination by the Division Bench in that case was "whether after a decree for judicial separation, the other party, the respondent to the petition for judicial separation, continues to remain under an obligation to cohabit with the other spouse " and both the learned Judges, in their separate but concurring Judgments, answered the question in emphatic negative and ruled that after the passing of the decree for judicial separation, both the parties, are released from their marital obligation to cohabit with each other. As the spouse against whom a decree for judicial separation is passed is also thus relieved from all marital obligations to cohabit with other spouse, his failure to take any step towards the resumption of cohabitation, whether by non action or even by overturning the overtures of the other spouse to that effect, cannot amount to any "wrong" within the meaning of S.23(1)(a) of the Hindu Marriage Act.

7. The decision of the Supreme Court in Dharmendra v. Usha, AIR 1977 SC 2218 [LQ/SC/1977/255] has ruled that even though the whole of S.13, including S.13(1A), is subject to S.23, mere disinclination to agree to an offer of reunion would not disentitle a spouse to a relief under S.13(1A). In Dharmendra (supra), the earlier decree was for restitution of conjugal rights obtained by the wife/petitioner and she demonstrated her disinclination to all offers for reunion made by the husband and she then initiated a matrimonial proceeding for divorce under S.13(1A) of the Act. Such a decree for restitution of conjugal rights, far from releasing the wife from her marital obligation to cohabit, was obviously obtained to enforce such obligation on the part of the husband. But even then it has been held by the Supreme Court that refusal by the wife to all offers of reunion made by the husband respondent would not disqualify her to obtain a decree for divorce under S.13(1A), not-withstanding S.23(1)(a). The Supreme Court has expressly quoted with approval the Delhi decision in Gajna Devi v. Purshotam Giri, AIR 1977 Delhi 178 and has also approved the earlier Delhi Full Bench decision in Ram Kali v. Gopal Dass, ILR (1971) 1 Delhi 6 which has been followed in Gajna Devi (supra) and that should leave no room for doubt that according to the Supreme Court, all that would be necessary to sustain a decree for divorce under S.13(1A)(i) is a prior decree for judicial separation between the parties and non-resumption of cohabitation between them for not less than one year after the passing of such decree and it would be immaterial as to whether, after the decree for judicial separation, any party attempted reunion and any party overturned such attempt. My answer, therefore, to the question No. 1 is that a husband, against whom a wife has obtained a decree for judicial separation is no longer under any obligation to cohabit with the wife and, therefore, his failure to do so would constitute no "wrong" within the meaning of S.23(1)(a) to disentitle him from a decree for divorce under S.13(1A).

8. My answer to question No. 2 is also a clear negative. Non-payment of alimony by the husband to the wife is undoubtedly a "wrong", but the expression "the petitioner... is not in any way taking advantage of his or her own wrong" in S.23(1)(a) must mean such a wrong of which the petitioner can take and is seeking to take advantage in order to obtain a decree or order favourable to him or her. If a husband has suffered a decree for judicial separation at the instance of the wife and does not pay the alimony payable to the wife and then files a petition for divorce against the wife under S.13(1A), he would be acquiring no advantage whatsoever in obtaining such a decree, if he is otherwise entitled thereto, on the score of non-payment of alimony. If such alimony or maintenance is ordered to be paid under the provisions of the Hindu Adoptions and Maintenance Act. 1956 or the Cr. P.C. of 1973 or of 1898, and the husband does not comply with the order, the same may under certain circumstances secure an advantage to the wife in obtaining a decree for divorce under S.13(2)(iii) of that Act. But no advantage can or does accrue to a husband for his failure to pay any alimony or maintenance to the wife in obtaining a decree for divorce against the wife under S.13(1A) and, therefore, the husband cannot be said to be in any way taking advantage of such non-payment within the meaning of S.23(1)(a) in prosecuting his petition for divorce under Section 13(1A).

9. I accordingly, answer both the questions referred to me in the negative and direct that the appeal, along with this opinion of mine, be now placed before the Division Bench for disposal in accordance with law under Cl.36 of the Letters Patent.

Order accordingly.