JAGANNADHA RAJU, J.

( 1 ) THIS is an appeal filed by the husband against the dismissal of o. P. No. 1399/83 on the file of the Subordinate Judge, Mahabubnagar. The husband who is a dumb person from birth and who comes from a rich jagirdar family was married to a girl coming from a pool family and the marriage took place on 27-1-72 at Tirupathi. The marriage was consummated at Hyderabad. A female child was horn out of this marriage on 15-12-72. After the birth of the child problems started.

( 2 ) IN this Original Petition and the appeal it is the contention of the husband that though a decree for restitution of conjugal rights was granted by the court in O. P. No. 27/75 on 21-7-79, there is no resumption of cohabitation of parties for more than one year and hence under Section 13 (1-A), the petitioner-husband is entitled to a decree for divorce. It is also contended that the marriage is irretrievably broken down and hence the court should not be reluctant to grant a decree of divorce. Sri Y. Sivarama sastry appearing for the husband-appellant raised a last argument in the following terms. In the trial court during the reconciliation proceedings the husband apprehended danger to his life. In this background a decree of divorce must be granted. On behalf of the respondent Sri T. Bali Reddy contends that this application filed purely on the basis of Section 13 (1-A) cannot be granted under any circumstances because after the decree for restitution of conjugal rights, there was resumption of cohabitation. In three different spells the parties lived together and enjoyed conjugal society and marital relations. Under any circumstances the husband who is not willing to comply with the decree for restitution of conjugal rights obtained by the wife cannot take advantage of his own wrong and ask for a divorce under Section 13 (1-A ). Section 23 still controls Section 13 even after the amendment Act. Mr. Balireddy contends that if we examine the history of events we find very peculiar facts. Everything was alright till the female child was born. But after the female child was born, the mother and the brother-in-law of the husband developed a feeling that the entire estate and the property of the husband would go to these people and hence they were anxious to get rid of the wife and the child. The main culprits in this case are the mother of the husband and Jagadeeswara Reddy the brother-in-law of the husband. The wife was driven out of the house on 20-11-74. Then she had to file O. P. No. 27/75 for restitution of conjugal rights. It was decreed on 21-7-79. Then C. M. A. No. 554/86 was filed by the husband. But ultimately the husband withdraw the C. M. A. and took the wife to the house. The C. M. A. was withdrawn on 19-8-82. Having consented to take the wife home and live with her and having lived with her now the unscrupulous husband and his advisers have come forward with the plea that the wife s failure to comply with the decree for restitution of conjugal rights amounts to desertion. The conduct of the husband and his advisers is further clear from the fact that after the C. M. A. was withdrawn on 19-8-82 within a few months O P. 117/83 was filed in the court at Hyderabad for granting a decree of divorce on the self-same ground of Sec. 13 (1-A ). When that was dismissed on the ground of jurisdiction and when E. P. 716/83 was filed by the wife for execution of the decree for restitution of conjugal rights the present Original Petition was filed in Mahaboobnagar court on 24-10-83. In fact even in the Mahaboobnagar court the Original Petition was presented to the court before the period of one year expired from 19-8-82 on which date the C. M. A. 554/80 was dismissed as withdrawn. Under no circumstances can the present appellant-petitioner be granted a decree for divorce.

( 3 ) THE points for consideration in this case are. (1) Whether the petitioner-husband is entitled to a decree for divorce on the ground of Sec. 13 (1-A)? (2) Whether a decree can be granted for divorce on the ground that the marriage is irretrievably broken down? (3) If the parties are made to live together, whether there is any apprehension of danger to the life of the husband as claimed on behalf of the husband?

( 4 ) POINT No. 2 :the argument of Sri Sivarama Sastry that the marriage should be dissolved on the ground that it is irretrievably broken down cannot be accepted under any circumstances. First there is no statutory provision till this day whereby a divorce can be granted on the ground of irretrievable break down. It is true that certain decisions of the Supreme court and the High Courts have suggested to the Parliament for amending the Act, but till this day there is no such provision on the Statute book. That apart, in the Original Petition filed no specific plea is taken to the effect that the marriage has irretrievably broken down and on that ground the petitioner is entitled to a decree for divorce. Both on the ground of a specific plea being absent in the petition and on the ground that there is no statutory provision regarding this aspect the argument has to be rejected and we accordingly reject it.

( 5 ) POINT No. 3:in this case the wife and the husband lived happily from 27-1-72 to 20-11-74. A daughter was born to them on 15-12-72. Only when the brother-in-law entered the picture and when the mother of the husband and Jagadeeswarareddy the brother-in-law started interfering with the married life of these parties, troubles arose. After she was driven out of the house in 1974, she immediately filed O. P. No. 27/75 for restitution of conjugal rights. The husband who is a dumb person and who is a person who is not capable of taking a decision on his own is under the complete grip of the mother and he is not being allowed to comply with the decree ; and C. M. A. 554/80 was filed. It should be remembered that immediately after O. P. 27/75 was decreed on 21-7-79, C. M. A. No. 554/80 was filed on behall of the husband. In the High Court the C. M. A. was withdrawn by taking the wife to their house. This took place on 19-8-82. The wife and the husband lived together for 3 months and enjoyed conjugal rights and society. Then the mother-in-law tortured the wife and then she had to go to Gopalpet which is the permanent residence of the husband who is the jagirdar of Gopalpet. In 1983 she joined her husband and they both lived together at Hyderabad the other home of the appellant for 45 days. Again the mother-in-law beat her and drove her out. Then she went back to gopalpet when she learnt that her husband and mother-in-law were residing at Gopalpet. Again she lived together with her husband for 3 days. Then her husband and mother-in-law went away to Hyderabad promising to come back and take her to Hyderabad. In effect the wife was living in the permanent marital home of the husband. There was resumption of cohabitation after the decree for restitution of conjugal rights in O. P. 27/75 was confirmed in C. M. A. No. 554/80. The final order in the restitution of conjugal rights was passed on 19-8-82. The evidence of R. W. 1 the wife clearly indicates that they lepresented to the court that they were taking her home and that they are not pressing the C. M. A. and then the wife and husband lived together at Hyderabad for 3 months. Then she went to the ancestral house of the husband at Gopalpet. There they lived together for 45 days and subsequently also they lived together for 3 days. The claim of the appellant that there is no resumption of cohabitation is totally false. A reading of the evidence and a reading of the order of the trial court clearly indicates that it is the mother and the brother-in-law who are trying to prevent the couple from living together happily. It is interesting to see that neither the mother nor the brother-in-law Jagadeeswara Reddy have come forward to give evidence though there are several allegations against them. In paragraph no. 5 of the counter it is specifically stated that the petitioner who by himself is not capable of thinking and taking a decision is controlled and is under the influence of his relatives viz. , the mother and the brother-in-law jagadeeswarareddy and these people in their anxiety to prevent the respondent and her child from becoming heirs to the Estate are harassing the respondent and her child and their actions resulted in litigation. It is further alleged in paragraph No. 6 of the counter that it is the mother and other relatives of the petitioner who are causing obstruction in allowing the petitioner and the respondent to live together with their child and lead a happy married life. She clearly slated that she is always ready and willing to live with her husband and that she is residing in the marital home at gopalpet. She also spoke about the need for her to tile E. P. No. 716/83 for enforcement of the decree for restitution of conjugal rights. It is quite clear that the wife is always ready and willing to live with the husband and the husband who is a dumb man incapable of thinking and taking a decision of his own is under the grip of the mother and the brother-in-law.

( 6 ) IN the reconciliation proceedings that took place in the trial court there is nothing to indicate that the husband apprehended danger to his life if he were to live with the wife. In this court we have interviewed the parties in the Chambers. The wife was not able to attend the meeting, but the appellant-husband appears to be a mild man who has no mind of his own and whenever any question was asked, he was always looking at his mother. We have also interviewed the mother and the mother seems to be bent upon their being separated. We are convinced that the mother of the husband and the brother-in-law of the husband are responsible for the troubles between the parties. There is absolutely no apprehension of danger to the life of the appellant if they are to live together. We hold on point No. 3 accordingly.

( 7 ) POINT No. I :the narration of events and the other details mentioned in the paragraphs above clearly indicate the improper and illegal conduct on the part of the husband. As soon as the decree for restitution of conjugal rights was passed on 21-7-79 in O. P. No. 27/75 immediately C. M. A. No. 554/80 was filed. Ultimately on 19-8-82 they took the wife home and they informed the court that they are not pressing the C. M. A. and it was dismissed as withdrawn. Inspite of this and inspite of the parties living together happily for 3 months at Hyderabad, the petitioner s mother unscrupulously alleged in the petition that there is no resumption of cohabitation. In fact the evidence reveals that subsequently the parties lived together in 1983 for 45 clays both at Gopalpet and Hyderabad and they lived together for 3 days at Gopalpet in the year 1984. Reading the entire evidence and the way in which the proceedings were conducted, we are fully convinced that this is a case where the mother of the dumb man is playing havoc with the married life of her son because of property. It looks as if she and her married daughters and son-in-laws do not want this poor girl who was willing to marry a dumb man and their child to enjoy the properties of the husband who is a rich Jagirdar. We have a lurking suspicion that originally when they performed his marriage with a poor girl with the object of her looking after the dumb man, they never expected that they would have children. Now that a child is born they are anxious to somehow or other prevent the wife and the child inheriting the properties of this rich dumb man. Unfortunately the husband is under the grip and the control of the mother and the brother-in-law Jagadeeswara Reddy, who do not have the moral courage to come into the witness box when there are numerous allegations against them.

( 8 ) WHEN the final order in the C. M. A. was passed on 19-8-82 confirming the decree of restitution of conjugal rights even before the expiry of one year, they have filed O. P. 117/83 for dissolution of the marriage on the ground of Section 13 (1-A ). Obviously that petition was filed under the wrong impression that the period is to be reckoned from 21-7-79 the date of the decree in the Original Petition. Subsequently the present Original petition is also filed before the expiry of one year though the O. P. was numbered on 24-10-83. It is nothing but a continuation of O. P. 117/83 filed in the Hyderabad court. The petition does not satisfy the ingredients of Section 13 (1-A ). One year period has not elapsed. On the other hand, there is positive evidence of resumption of cohabitation between the parties. On this ground itself the petition has to be dismissed.

( 9 ) IT is now well established that even after the amendment of the hindu Marriage Act Section 23 (1) controls Sec. 13 as laid down in Dharmendra kumar vs. Usha Kumar and Saroj Rani vs. Sudershan Kumar. The husband who is the erring party is not entitled to take advantage of his own lapse and file the petition for divorce under Section 13 (1-A ). On facts also it is clear that the basic facts for filing a petition under Sec. 13 (1-A) do not exist in this case. We held point No. 1 against the appellant.

( 10 ) IN the result there are no merits in this appeal and the appeal is dismissed with costs.