“In this appeal before this Court, counsel for the wife did not challenge the finding of the Division Bench that the consent decree as such was not bad or collusive. What he tried to urge before us was that in view of the expression ‘wrong’ in Section 23 (1) (a) of the Act, the husband was disentitled in this case to get a decree for divorce. It was sought to be urged that from the very beginning the husband wanted that decree for divorce should be passed. He therefore did not deliberately oppose the decree for restitution of conjugal rights.
It was submitted on the other hand that the respondent/husband had with the intention of ultimately having divorce allowed the wife a decree for the restitution of conjugal rights knowing fully well that this decree he would not honour and thereby he misled the wife and the Court and thereafter refused to cohabitate with the wife and now, it was submitted, cannot be allowed to take advantage of his ‘wrong’. There is, however, no whisper of these allegations in the pleadings. As usual, on this being pointed out, the counsel prayed that he should be given an opportunity of amending his pleadings and, the parties, with usual plea, should not suffer for the mistake of the lawyers. In this case, however, there are insurmountable difficulties.
Firstly there was no pleading secondly this ground was not urged before any of the courts below which is a question of fact, thirdly the facts pleaded and the allegations made by the wife in the trial Court and before the Division Bench were contrary to the facts now sought to be urged in support of her appeal. The definite case of the wife was that after the decree for restitution of conjugal rights, the husband and wife cohabitated for two days. The ground now sought to be urged is that the husband wanted the wife to have a decree for judicial separation by some kind of a trap and then not to cohabitate with her and thereafter obtain this decree for divorce. This would be opposed to the facts alleged in the defence by the wife.
Therefore quite apart from the fact that there was no pleading which is a serious and fatal mistake, there is no scope of giving any opportunity of amending the pleadings at this stage permitting the wife to make an inconsistent case. Counsel for the appellant sought to urge that the expression ‘taking advantage of his or her own wrong’ in clause (a) of sub section (1) of Section 23 must be construed in such a manner as would not make the Indian wives suffer at the hands of cunning and dishonest husbands, Firstly even if there is any scope for accepting this broad argument, it has no factual application to this case and secondly if that is so then it requires a legislation to that effect. We are therefore unable to accept the contention of counsel for the appellant that the conduct of the husband sought to be urged against him could possibly come within the expression ‘his own wrong’ in Section 23 (1) (a) of the Act so as to disentitle him to a decree for divorce to which he is otherwise entitled to as held by the Courts below. Furthermore, we reach this conclusion without any mental compunction because it is evident that for whatever be the reasons this marriage has broken down and the parties can no longer live together as husband and wife, if such is the situation it is better to close the chapter [AIR 1984 SC 1562 ]