Citation: 1977 AIR 2218
Case Type: Civil Appeal
Case No: 949 of 1977
Appellants: Dharmendra Kumar
Respondents: Usha Kumar
Decided On: 19-08-1977
Statues Referred: Hindu Marriage Act 1955
Case Referred:
- Ram Kali v. Gopal Dass
- Gajna Devi v. Purshotam
Bench: Gupta, A.C. Fazalali, Syed Murtaza
Facts:
The respondent herein made an application U/S 9 of the Hindu Marriage Act, 1955, where a decree was passed on 27th August, 1973, for restitution of conjugal rights by the Additional Senior Sub-Judge, Delhi.
Two years later of passing of decree, on 28th October, 1975, a petition was filed U/S 13 (IA) (ii) of the Act by the respondent to the Additional District Judge, Delhi, for the dissolution of marriage by a decree of divorce.
There had been no restitution of conjugal rights between the parties even after the order for restitution was passed in earlier proceeding and it was the primary ground for applying for divorce.
The appellant herein contented that he had made several attempts to comply with decree for restitution of conjugal rights by writing letter to the respondent inviting her to come and live with him. But the respondent did not heed to revert those letters and that the respondent herself prevented her from complying with the decree.
The Additional District Judge, Delhi held that the circumstances did not reflect that the respondent was trying to take advantage from her own wrong and therefore the appeal was allowed and the decree for divorce was given.
Aggrieved by the decision, the husband made an appeal to the High Court which was subsequently dismissed. And therefore appeal by special leave from the Judgement of the High Court was made to the Supreme Court.
Issue:
The validity of the decision of the lower court is challenged.
Ratio Decedendi:
Section 13 (IA) (ii) of the Act provides that either party to a marriage, may file a petition for the dissolution of marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between parties to the marriage of two years or more after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
Referring to the Ram Kali’s case the Court held that mere non-compliance with the decree of restitution of conjugal rights does not amount to commission of wrong within the meaning of Section 23(1) (a).
Section 23 was in existent in the Hindu Marriage Act, 1955 prior to the insertion of Section 13. The Parliament never intended to debar the party guilty of matrimonial offence and against whom a decree for judicial separation or restitution of conjugal rights had been passed, from obtaining divorce U/S 23 of the Act.
Otherwise an exception to Section 13 would have been inserted which would have made Section 13 (1A) redundant and the guilty party would ever get divorce U/S 23.
Hence Section 23 cannot be held to make Section13 (1A) as nugatory.
The provision of Section 23(1) (a) cannot be construed as taking advantage of his/her own wrong. Rather it is utilization of the legal right as enumerated in the provision of Section 23 of the Act.
Judgment
The Apex Court’s bench comprising of Gupta, A.C. Fazalali, Syed Murtaza held the following:
The Court thought it reasonable to pursue that the relief which was available to the spouse against whom the restitution of conjugal rights was passed, could not be denied on the ground that the spouse taking advantage of its own wrong.
To constitute a wrong the conduct has to be more wrong than just a mere disinclination to agree to live together.
The allegation advanced by the husband that the wife refused to respond to letter and live with him did not to misconduct on the part of the respondent and therefore did not disentitle her for the relief sought by her.
Hence the appeal was dismissed without cost.
Conclusion:
A mere denial or disinclination does not amount to misconduct or wrong unless such has been so recognised expressly by law. Same in the instant case the complaint by the husband that the wife actually made a wrongful conduct by refusing to respond to letter addressing her to live with him does not constitute to wrong in order that she be denied to obtain divorce from the husband U/S 23 of the Hindu Marriage Act, 1955.
Eventually the husband failed to establish his complain as legally maintainable under law leading the appeal to be dismissed.
Kaushal Agarwal.