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Dharmendra Kumar v. Usha Kumar .
Factual and Procedural Background
On August 27, 1973, the respondent-wife obtained a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 from the Additional Senior Sub-Judge, Delhi. More than two years later, on October 28, 1975, she filed a petition before the Additional District Judge, Delhi under Section 13(1-A)(ii) seeking dissolution of the marriage on the ground that no restitution had taken place since the earlier decree.
The appellant-husband admitted that cohabitation had not resumed but asserted that he had attempted to comply with the restitution decree by sending registered letters and other invitations, which the wife allegedly ignored. The trial court framed Issue 1 on whether the wife was taking advantage of her own wrong under Section 23(1)(a), and an additional preliminary issue on the maintainability of that objection.
Relying on binding Delhi High Court precedents, the Additional District Judge granted the wife a decree of divorce. The Delhi High Court summarily dismissed the husband's appeal. The present appeal challenges the validity of the divorce decree.
Legal Issues Presented
- Whether a spouse who obtained a decree for restitution of conjugal rights but did not resume cohabitation is “taking advantage of his or her own wrong” within the meaning of Section 23(1)(a) when seeking divorce under Section 13(1-A)(ii).
- Whether the husband’s objection based on Section 23(1)(a) was legally sustainable in opposing the wife’s petition for divorce.
Arguments of the Parties
Appellant-Husband
- Claimed to have sent several registered letters and other invitations urging the wife to live with him.
- Alleged that the wife refused to accept some letters, ignored others, and thereby prevented restitution of conjugal rights.
- Contended that by relying on the non-restitution she caused, the wife was taking advantage of her own wrong, invoking the bar under Section 23(1)(a).
Respondent-Wife
- Asserted that more than two years had elapsed since the restitution decree without resumption of cohabitation, satisfying Section 13(1-A)(ii).
- Maintained that no other legal impediment existed to granting a decree of divorce.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ram Kali v. Gopal Dass, ILR (1971) 1 Delhi 6 (Full Bench) | Mere non-compliance with a restitution decree does not constitute “wrong” under Section 23(1)(a). | Adopted to conclude that the wife’s failure to resume cohabitation was not a bar to divorce. |
| Gajna Devi v. Purshotam Giri, ILR (1976) 1 Delhi 725 | Section 23(1)(a) cannot nullify the statutory right to divorce under Section 13(1-A); exercising that right is not taking advantage of one’s own wrong. | Used to reinforce that the wife was invoking a statutory entitlement, not exploiting misconduct. |
Court's Reasoning and Analysis
The Court acknowledged that the statutory ground in Section 13(1-A)(ii) was unquestionably met. The pivotal inquiry was whether the wife’s alleged refusal to reunite constituted a “wrong” under Section 23(1)(a).
- Section 23 was enacted before Section 13(1-A); Parliament did not append any exception denying the “guilty” spouse the newly conferred right to divorce.
- The phrase “taking advantage of his or her own wrong” requires misconduct more serious than a mere unwillingness to accept reconciliation.
- A party merely availing a statutory remedy after the lapse of the stipulated period is not exploiting misconduct but exercising a legal right.
Even if the husband’s allegations were true, the wife’s conduct—refusal to accept or respond to letters—did not rise to the level of grave misconduct envisaged by Section 23(1)(a). Consequently, the statutory right to divorce prevailed.
Holding and Implications
Appeal dismissed; the decree of divorce in favour of the wife is affirmed. No order as to costs.
The ruling clarifies that the bar in Section 23(1)(a) applies only to serious matrimonial misconduct, not to the mere failure to resume cohabitation after a restitution decree. It reinforces that Section 13(1-A)(ii) grants an independent statutory right to divorce, limiting the scope of objections based on alleged “own wrong” by the petitioner.
A.C Gupta, J.— On her application made under Section 9 of the Hindu Marriage Act, 1955, the respondent was granted a decree for restitution of conjugal rights by the Additional Senior Sub-Judge, Delhi, on August 27, 1973. A little over two years after that decree was passed, on October 28, 1975 she presented a petition under Section 13(1-A)(ii) of the Act in the Court of the Additional District Judge, Delhi, for the dissolution of the marriage by a decree of divorce. Section 13(1-A)(ii) as it stood at the material time reads:
“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) * * *
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of two years or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.”
The provision was amended in 1976 reducing the period of two years to one year, but this amendment is not relevant to the present controversy. In the petition under Section 13(1-A)(ii) she — we shall hereinafter refer to her as the petitioner — stated that there had been no restitution of conjugal rights between the parties to the marriage after the passing of the decree for restitution of conjugal rights and that there was no other legal ground why the relief prayed for should not be granted. Her husband, the appellant before us, in his written statement admitted that there had been no restitution of conjugal rights between the parties after the passing of the decree in the earlier proceeding, but stated that he made attempts “to comply with the decree (for restitution of conjugal rights) by writing several registered letters to the petitioner” and “otherwise” inviting her to live with him. He complained that the petitioner “refused to receive some of the letters and never replied to those which she received”, and according to him the petitioner “has herself prevented the restitution of conjugal rights she prayed for and now seeks to make a capital out of her own wrong”. The objection taken in the written statement is apparently based on Section 23(1)(a) of the Act. The relevant part of Section 23(1)(a) states:
“23. Decree in proceedings.—(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that—
(a) any of the grounds lor 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.... ”
2. On the pleadings the following issue was raised as Issue 1:
“Whether the petitioner is not in any way taking advantage of her own wrong for the reasons given in the written statement?”
Subsequently the additional issue was also framed:
“Whether the objection covered by Issue 1 is open to the respondent under the law?”
This additional issue was heard as a preliminary issue. The Additional District Judge, Delhi, who heard the matter, relying on a Full Bench decision of the Delhi High Court reported in ILR (1971) 1 Delhi 6, (Ram Kali v. Gopal Dass), and a later decision of a learned Single Judge of that Court reported in ILR (1976) 1 Delhi 725 (Gajna Devi v. Purshotam Giri), held that no such circumstance has been alleged in the instant case from which it could be said that the petitioner was trying to take advantage of her own wrong and, therefore, the objection covered by Issue 1 was not available to the respondent. The Additional District Judge accordingly allowed the petition and granted the petitioner a decree of divorce as prayed for. An appeal from this decision taken by the husband was summarily dismissed by the Delhi High Court. In the present appeal the husband questions the validity of the decree of divorce granted in favour of the petitioner.
3. Section 13(1-A)(ii) of the Hindu Marriage Act. 1955 allows either party to a marriage to present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for the period specified in the provision after the passing of the decree for restitution of conjugal rights. Sub-section (1-A) was introduced in Section 13 by Section 2 of the Hindu Marriage (Amendment) Act, 1964 (44 of 1964). Section 13 as it stood before the 1964 Amendment permitted only the spouse who had obtained the decree for restitution of conjugal rights to apply for relief by way of divorce; the party against whom the decree was passed was not given that right. The grounds for granting relief under Section 13 including sub-section (1-A) however continue to be subject to the provisions of Section 23 of the Act. We have quoted above the part of Section 23 relevant for the present purpose. It is contended by the appellant that the allegation made in his written statement that the conduct of the petitioner in not responding to his invitations to live with him meant that she was trying to take advantage of her own wrong for the purpose of relief under Section 13(1-A)(ii). On the admitted facts, the petitioner was undoubtedly entitled to ask for a decree of divorce. Would the allegation, if true, that she did not respond to her husband's invitation to come and live with him disentitle her to the relief? We do not find it possible to hold that it would. In Ram Kali case a Full Bench of the Delhi High Court held that mere non-compliance with the decree for restitution does not constitute a wrong within the meaning of Section 23(1)(a). Relying on and explaining this decision in the later case of Gajna Devi v. Purshotam Giri a learned Judge of the same High Court observed:
“Section 23 existed in the statute book prior to the insertion of Section 13(1-A) … Had Parliament intended that a party which is guilty of a matrimonial offence and against which a decree for judicial separation or restitution of conjugal rights had been passed, was in view of Section 23 of the Act, not entitled to obtain divorce, then it would have inserted an exception to Section 13(1-A) and with such exception, the provision of Section 13(1-A) would practically become redundant as the guilty party could never reap benefit of obtaining divorce, while the innocent party was entitled to obtain it even under the statute as it was before the amendment. Section 23 of the Act, therefore, cannot be construed so as to make the effect of amendment of the saw by insertion of Section 13(1-A) nugatory.
. . . the expression ‘petitioner is not in any way taking advantage of his or her own wrong’ occurring in clause (a) of Section 23(1) of the Act does not apply to taking advantage of the statutory right to obtain dissolution of marriage which has been conferred on him by Section 13(1-A) . . . In such a case, a party is not taking advantage of his own wrong, but of the legal right following upon of the passing of the decree and the failure of the parties to comply with the decree . . .”
In our opinion the law has been stated correctly in Ram Kali v. Gopal Dass and Gajna Devi v. Purshotam Giri. Therefore, it would not be very reasonable to think that the relief which is available to the spouse against whom a decree for restitution has been passed, should be denied to the one who does not insist on compliance with the decree passed in his or her favour. In order to be a “wrong” within the meaning of Section 23(1)(a), the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled.
4. In the case before us the only allegation made in the written statement is that the petitioner refused to receive or reply to the letters written by the appellant and did not respond to his other attempts to make her agree to live with him. This allegation, even if true, does not amount to misconduct grave enough to disentitle the petitioner to the relief she has asked for. The appeal is therefore dismissed but without any order as to costs.
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