LexDHARMENDRA KUMAR versus USHA KUMAR
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
DHARMENDRA KUMAR
v.
USHA KUMAR
August 19, 1977
[A. C. GUPTA ANDS. MURTAZA FAZAL Au, JJ.]
315
Hindu Marrial{e Act 1955-Section 13(1A)(ii).-23(1)(a)-lf divorce can
be nbtained for absence of restitution of conjugal rights after decree for restitu-
tion is granted by ai person who refuses to have restitution-Whether such
a
conduct amounts to a wrong within the nzeaning of sec. 23(1)(a) of the Act.
The respondent-wife was granted a decree for restitution of conjugal right&
on her application under s. 9 of Hindu Marriage Act, 1955
by
Additional
Senior Sub-Judge, Delhi, on 27th August 1973.
On 28th October 1975,
the
respodent presented a petition under s. 13(IA) (ii) of the Act in the Court
of Additional District Judge, Delhi for dissolution of the marriage by a decree
of divorce-stating therein that there had been no restitution
of
conjugal
rights between the parties after the passing of the. decree for restitution of
conjugal rights. The appellant-husband, in his written statement admitted that
there had been no restitution of conjugal rights, between the parties after the
passing of the decree in earlier proceedings, but stated that he made attempts
to comply with the decree dated 27th August 77 by writing several registered
letters inviting the respondent to live with him to which, according to
him.
she never replied.
The husband contended that she herself
prevented
the
restitution of conjugal rights and was making a capital out of her own wrong
which she was not entitled to do.
HELD : No circumstance has been alleged in the instant case from which
it could be said that the respondent was trying to take advantage of her own
wrong. Section 13(1A)(ii) of Hindu Marriage Act 1955 allows either party
to a marriage to present a petition for 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 (lA)
was introduced in section 13 by section 2 of Hindu ~farriage (Amendment) Act
1964. Section 13 as it stocxl 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 p3!rty against whom the decree was passea
was not given that right. The relief which is available to the spouse
against
whom a decree for restitution of conjugal- rights has been passed cannot reason-
ably be denied to the one who does not insist on compliance with the decree
passed in his or her favour.
Jn order to be 3! ''wrong" within the meaning ot
s. 23(1) (a) the conduct alleged has to be something more than a mere disin-
clination 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. Mere non-compliance with a decree for restitution does not constitute
\vrong within the meaning of section 23(1)(a). [3170-G]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 949 of 1977.
Appeal by Special Leave from the Judgment and Order dated
19-10-1976 of the Delhi High Court in F.A.O., No. 170 of 1976.
Naunit Lal, R. K. Baweja and Miss Lalita Kohli, for t11e Appellant.
S. L. Watel, C. R. Somasekharan, R. Watl:'l and M. S. Ganesh, for
the Respondent.
The following Judgment of the Court was delivered by
GUPTA, J.-On her application made under section 9 of the HiJ?du
Marriage Act, 1955, the respondent was granted a decree for res!1tu-
tion of conjugal rights by the Additional Senior Sub-Judge, Delhi on
A
B
c
D
E
F
G
H
A
B
c
316
SUPREME COURT REPORTS
[1978] 1 S.C.R.
August 27, 1973. A little over two years after that decree was passed,
on October 28, 1975 she presented a petition under section 13(1A) (ii)
of ·.he Act in the Court of the Addi'.ional District Judge, Delhi, for the
dissolution of the marriage hy a decree of divorce. Section 13(1A) (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)
x
x
x
(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
restitutionExcerpt shown. Read the full judgment & AI analysis in Lexace.