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

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

contra-·

versy. In the petition under section 13(1A) (ii) she-we shall here·

D inafter 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

h's written

statement admitted that there had been no restitution of conjugal rights

between the parties after the passing of the decree

in the earlier pro-

E ceeding, 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 Jive with him. He

complained that the peNioner "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".

F The objection taken in the written statement is apparently based on

section

23(l)(a) of the Act. The relevant part of section 23(1)(a)

states

:'

G

Decree in proceedings.

"23. (1) In any proceeding under this Act, whether

defended or not,

if

'he court is satisfied that-

(a) any of the grounds for granting relief exists and the

petitioner

........ is not in any way taking advantage of h's or her own wrong or disability for the purpose of such

relief

......

"

On the pleadings the following issue was raised as issue No. 1 :

H "Whether the petitioner is not in any way taking advan-

tage of her own wrong for the reasons given in the written

l\latement ?"

'

'

DHARMENDRA v. USHA (Gupta, !.) 317

Subsequently the following additional issue was also framed : A

"Whether the objection covered by issue No. 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 I.LR. (1971) I

Delhi 6, B

(Ram Kali v. Go pal Dass), and a later decision of a learned single

Judge of that court reported in I.L.R. (1Q76) I 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 peti­

tioner

was trying to take advantage of her own wrong and, therefore,

the objection covered

by issue No. 1 was not available to the respon-

dent The Additional District Judge accordingly allowed the petition

c

and granted the petitioner a decree of divorce a:s prayed for. An

appeal from this decision taken by the husband

was summarily dismiss-

ed by the Delhi High Court. Iu the present appeal the husband

questions the validity of the decree of divorce granted

in favour of the

petitioner.

Section 13(1A) (ii) of the Hindu Marriage Act, 1955 allows either D

party to a marriage to present a petition for the dissolution of the

marriage

by a decree of

<livorce 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 the Hindu Marriage (Amendment) Act,

1964 ( 44 of 1964).

Section 13 as it stood bef0re the 1964 amend- E

ment permitted only the spouse who had obtained the decree for restitu-

tion of conjugal rights to apply for relief by

way of divorce; the party

against whom the decree

wa·s passed was not given that right. The

grounds for granting relief under section 13 including sub-section (lA)

however continue to be subiect to the provisions of section 23 of tho

Act. We have quoted above the part of section 23 relevant for the

present purpose.

It is contended by the appellant that the allegation F

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

8Pdion 13(1A) <ii) On the admitted facts, the petitioner was un­

doubtedly entitled to ask for a decrer of divorce. Would the allega-

tion, if true, that she did not respond to her husband's invtation

to

come and live with him disentitle her to the relief ? We do not find it G

possible to hold that it would. In Ram Kali's case (supra) 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 mean-

ing of section

23(1)(a). Relving on and explaining this decision in

the later case of Gaina Devi v. Purshotam Giri (supra) a learned

Judge

of the same High Court observed :

"Section 23 existed in the statute book prior to the inser­

tion of section 13(1A)

..... Had

Parliament intended that

a

party which is guilty of a matrimonial offence and against

H

A

B

c

D

E

F

318

SUPREME COURT REPORTS [1978] 1 S.C.R·

which a decree for judicial separatiou or restitution of con­

jugal 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 (IA) and with such exception, the

provision of section

13 (I A) would practically become

re­

dundant as the guilty party could never reap benefit of obtain­

ing divorce, while the innocent party was entitled to obtain it

even under the statute as it was before the amendment. Sec­

tion 23 of the Act, therefore, cannot be construed so as to

make the effect of amendment of the law by insertion of sec­

tion

13 (I 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(1A) .. 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. Gop<1l

Das (supra) aud Gajna Devi v. Purshotam Giri (supra). Therefore,

it would not be very reasonable to think that the relief which is avail­

able to the spouse against whom a .decree for restitution has bce11.

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

liOmething 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.

In the case before us the only allegation made in the written

state­

ment 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, doei

not amount to misconduct grave enou~h to disentitle the petitioner to

the relief she has asked for. The appeal

is therefore dismissed but

without any order as to costs. .

P.H.P.

Appeal dismiss~d.