Gurpal Singh Ahluwalia, J.

1. This first appeal under Section 19 of the Hindu Marriage Act has been filed against judgment and decree dated 30.07.2025, passed by the Principal Judge, Family Court, Bhind in RCSHM No. 63/2025, by which petition filed by appellant under Section 13 (1-A) of the Hindu Marriage Act has been rejected.

2. The undisputed facts for disposal of present appeal, in short, are that appellant as well as respondent got married to each other on 11.05.2013 in accordance with Hindu rites and rituals. They are blessed with a baby girl aged about seven years.

3. It is the case of appellant that on 22.04.2021, respondent left her matrimonial house, and since then, she is residing separately. It was also his case that respondent was treating the appellant with cruelty. An application under Section 13-B of the Hindu Marriage Act was filed for grant of divorce by mutual consent, but on 12.06.2023, said application was rejected because respondent resiled from her preliminary statement. Thereafter, on 15.04.2024, appellant filed a petition under Section 9 of the Hindu Marriage Act which was allowed ex-parte by judgment and decree dated 27.01.2025. Since respondent did not join the company of appellant, therefore, on 26.03.2025, he filed a petition under Section 13 (1-A) of Hindu Marriage Act. Respondent did not appear before the Trial Court, and accordingly, she was proceeded ex-parte. However, by impugned judgment and decree, petition filed by appellant under Section 13 (1-A) of Hindu Marriage Act has been dismissed.

4. Challenging the judgment and decree passed by the Court below, it is submitted by counsel for appellant that since respondent is guilty of committing cruelty, therefore, the Trial Court should not have rejected the petition filed under Section 13 (1-A) of the Hindu Marriage Act. It is further submitted that a decree for restitution of conjugal rights was passed, but respondent did not join his company, therefore, appellant was also entitled for grant of divorce.

5. Per contra , appeal is vehemently opposed by counsel for respondent.

6. Heard learned counsel for parties.

7. On 11.05.2026, parties had appeared before this Court and following order was passed:

          "Parties are present in person.

          It is submitted by the respondent that every time, she is maltreated by the appellant and although she is looking after her 8 years old daughter but the appellant has not paid a single penny towards their maintenance. It is submitted by appellant that he was a photographer and an order under Section 125 Cr.P.C. has been passed by a competent Court at Mumbai and he has been directed to pay Rs.7,500/- per month by way of maintenance, but he has not paid a single penny in compliance of the said order. It is further submitted that he is facing a criminal prosecution under Section 498-A of IPC in Orai, which is approximately 110 kms away from his place of residence i.e. Bhind. It is further submitted that he was also required to bear the expenses of this appeal and therefore, under compulsion, he has sold his camera to pay the fees of lawyers. Be that whatever it may be.

          The crux of the matter is that the appellant has not paid a single penny to the respondent in spite of an order passed by a Court of competent jurisdiction under Section 125 of Cr.P.C.

          Heard the counsel for the parties finally.

          Reserved for judgement."

          Thus, it is clear that it is the appellant who is not making payment of the maintenance amount to respondent in spite of the order passed by the Court of competent jurisdiction.

8. Be that whatever it may be.

9. Appellant examined himself as PW-1 and Kunwar Singh as PW-2. As already pointed out, since respondent was proceeded ex-parte, therefore, neither there is any written statement nor there is any evidence on behalf of respondent.

10. Brijesh Singh (PW-1) has stated that he got married to respondent on 11.05.2013 in accordance with the Hindu rites and rituals. They were blessed with a baby girl who is now aged about eight years. Respondent used to pick up quarrels on daily issues, and ultimately, on 22.04.2021, she left her matrimonial house along with her brother. She also took her gold and silver ornaments. When she did not return back in spite of repeated requests made by him, then he filed a petition under Section 9 of the Hindu Marriage Act which was decreed by judgment and decree dated 27.01.2025. Even then, respondent did not join his company, therefore, petition for divorce was filed. The marriage card was proved as Exhibit P-1, whereas judgment passed under Section 9 of the Hindu Marriage Act was exhibited as Exhibit P-2, and decree passed under Section 9 of the Hindu Marriage Act was exhibited as Exhibit P-3. It was further stated in paragraph three of his examination-in-chief that since respondent has decided not to join his company and since she had treated him with cruelty and deserted him without any reasonable reason, therefore, a decree for divorce may be passed.

11. Kunwar Singh (PW-2), who is the father of appellant, has stated that on household issues, respondent used to pick up quarrels, and in the year 2021, she left her matrimonial house along with her entire gold and silver ornaments. When she did not return back in spite of multiple requests, then appellant filed a petition under Section 9 of the Hindu Marriage Act, but in spite of the decree, she did not join the company of his son, and accordingly, it was prayed that a decree for divorce be granted and the gold and silver ornaments, which were taken by respondent, be returned back.

12. Now the question for consideration is as to whether petition under Section 13(1-A) of the Hindu Marriage Act was maintainable or not?

13. Section 13(1A) of the Hindu Marriage Act reads as under:

          "13. Divorce.-(1) .....

          (1A) Either party to a marriage, whether solemnised 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."

14. Judgment and decree dated 27.01.2025 passed under Section 9 of the Hindu Marriage Act are Exhibits P-2 and P-3. There is nothing on record to suggest that appellant ever filed an application under Order 21 Rule 32 CPC for execution of the decree for restitution of conjugal rights. There is nothing on record to suggest that appellant ever tried to bring the respondent back to her matrimonial house after the judgment and decree under Section 9 of the Hindu Marriage Act was passed. As already pointed out, an application under Section 13(1-A)(ii) of the Hindu Marriage Act would be maintainable after one year of passing of a decree for restitution of conjugal rights. As already pointed out, the judgment and decree under Section 9 of the Hindu Marriage Act was passed on 27.01.2025, whereas the petition under Section 13 of the Hindu Marriage Act was filed on 26.03.2025, i.e., within two months of passing of the judgment and decree under Section 9 of the Hindu Marriage Act. Therefore, the Trial Court did not commit any mistake by holding that the petition for divorce under Section 13 (1- A) (ii) of the Hindu Marriage Act was not maintainable within a period of one year.

15. Furthermore, as already pointed out, there is nothing on record to suggest that appellant had ever tried to make an effort to bring the respondent back to his matrimonial house. Appellant did not file any application for execution of the decree for restitution of conjugal rights. It is not his case that after the decree for restitution of conjugal rights was passed, he tried his level best to bring her back. The husband cannot be allowed to take advantage of his own wrong.

16. The Supreme Court in the case of Dr. N.G. Dastane vs. Mrs S. Dastane , reported in (1975) 2 SCC 326 , has held as under:

          "54. Before us, the question of condonation was argued by both the sides. It is urged on behalf of the appellant that there is no evidence of condonation while the argument of the respondent is that condonation is implicit in the act of cohabitation and is proved by the fact that on February 27, 1961 when the spouses parted, the respondent was about 3 months pregnant. Even though condonation was not pleaded as a defence by the respondent it is our duty, in view of the provisions of Section 23(1)(b), to find whether the cruelty was condoned by the appellant. That section casts an obligation on the court to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief prayed for can be decreed only if we are satisfied "but not otherwise", that the petitioner has not in any manner condoned the cruelty. It is, of course, necessary that there should be evidence on the record of the case to show that the appellant had condoned the cruelty.

          55. Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things: forgiveness and restoration. [ The Law and Practice of Divorce and Matrimonial Causes by D. Tolstoy, 6th Edn., p. 75] The evidence of condonation in this case is, in our opinion, as strong and satisfactory as the evidence of cruelty. But that evidence does not consist in the mere fact that the spouses continued to share a common home during or for some time after the spell of cruelty. Cruelty, generally, does not consist of a single, isolated act but consists in most cases of a series of acts spread over a period of time. Law does not require that at the first appearance of a cruel act, the other spouse must leave the matrimonial home lest the continued cohabitation be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the benign purpose of marriage laws.

          56. The evidence of condonation consists here in the fact that the spouses led a normal sexual life despite the respondent's acts of cruelty. This is not a case where the spouses, after separation, indulged in a stray act of sexual intercourse, in which case the necessary intent to forgive and restore may be said to be lacking. Such stray acts may bear more than one explanation. But if during cohabitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. There is then no scope for imagining that the conception of the child could be the result of a single act of sexual intercourse and that such an act could be a stark animal act unaccompanied by the nobler graces of marital life. One might then as well imagine that the sexual act was undertaken just in order to kill boredom or even in a spirit of revenge. Such speculation is impermissible. Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. Therefore, evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty. Intercourse, of course, is not a necessary ingredient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home. But intercourse in circumstances as obtain here would raise a strong inference of condonation with its dual requirement, forgiveness and restoration. That inference stands uncontradicted, the appellant not having explained the circumstances in which he came to lead and live a normal sexual life with the respondent, even after a series of acts of cruelty on her part.

          * * *

          58. Section 23(1)(b) of the Act, it may be urged, speaks of condonation but not of its revival and therefore the English doctrine of revival should not be imported into matters arising under the Act. Apparently, this argument may seem to receive some support from me circumstance that under the English law, until the passing of the Divorce Reform Act, 1969 which while abolishing the traditional bars to relief introduces defences in the nature of bars, at least one matrimonial offence, namely, adultery could not be revived if once condoned. [ See Rayden on Divorce, 11th Edn., (1971) pp. 11, 12, 2368, 2403] But a closer examination of such an argument would reveal its weakness. The doctrine of condonation was established by the old ecclesiastical courts in Great Britain and was adopted by the English courts from the canon law. "Condonation" is a technical word which means and implies a conditional waiver of the right of the injured spouse to take matrimonial proceedings. It is not "forgiveness" as commonly understood. [ See Words and Phrases : Legally Defined (Butterworths) 1969 Edn., p. 306 and the cases cited therein] In England condoned adultery could not be revived because of the express provision contained in Section 3 of the Matrimonial Causes Act, 1963 which was later incorporated into Section 42(3) of the Matrimonial Causes Act, 1965. In the absence of any such provision in the Act governing the charge of cruelty, the word "condonation" must receive the meaning which it has borne for centuries in the world of law. [ See Ferrers v. Ferrers, (1791) 1 Hag Con 130, 131] "Condonation" under Section 23(1)(b) therefore means conditional forgiveness, the implied condition being that no further matrimonial offence shall be committed."

17. If the facts and circumstances of this case are considered, although appellant has not filed a copy of the order thereby rejecting an application filed under Section 13B of the Hindu Marriage Act, but during the course of arguments, it was submitted by counsel for appellant that earlier an application under Section 13B of the Hindu Marriage Act was filed for grant of divorce by mutual consent. In the preliminary stage, respondent had also agreed for the same, but in the final statement, she resiled from her previous statement.

Thus, it was submitted that the application for grant of divorce by mutual consent was rejected by order dated 12.06.2023.

18. Thereafter, appellant filed a petition under Section 9 of the Hindu Marriage Act on 15.04.2024. In view of Section 23(1)(b) of the Hindu Marriage Act, it can be said that whatever cruelty, even if any, was committed by respondent, it stood condoned by the appellant on his filing an application for restitution of conjugal rights.

19. Furthermore, if the evidence led by appellant is considered, then it is clear that the only allegation is that on domestic issues, respondent used to pick up quarrels. By no stretch of imagination, it can be said to be a cruelty.

20. Under these circumstances, this Court is of considered opinion that appellant has failed to prove the cruelty on the part of respondent and the Trial Court did not commit any mistake by dismissing the petition filed by appellant under Section 13 (1-A) of the Hindu Marriage Act.

21. Accordingly, appeal fails and is hereby dismissed.