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Smt. Kamaladevi Vs Shivakumarswamy

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Citation: Smt. Kamaladevi Vs Shivakumarswamy, AIR 2003 KAR 36

Date of Judgement: 19/08/2002

Equivalent citations: II (2002) DMC 738, 2002 (5) KarLJ 553

Case no: MFA 678/1996

Case type:  Miscellaneous First Appeal

Appellant: Smt. Kamaladevi

Respondent: Shivakumarswamy Viraktamath

Bench: Hon’ble Justice T S Thakur, Hon’ble Justice D S Kumar

Court: Karnataka High Court

Statutes Referred:

  • Hindu Marriage Act, 1955 – Section – 13, 13(1)(ia), 23
  • Code of Criminal Procedure (Cr.PC) – Section – 125


  • The marriage between the parties was solemnized in 1997 according to Hindu Rites. They lived together for about a Year and half and then separated thereafter.
  • Shivakumarswamy (husband) filed a suit for Restitution of Conjugal Rights or in the alternative, a decree for divorce on ground of cruelty and desertion as Kamaladevi (wife) went away to her parent’s house after a year and half of the marriage and never returned.
  • The Trial Court established that it was Shivakumarswamy who was guilty of ill-treatment towards the wife and was interested in another woman and passed a decree for divorce.
  • Aggrieved by this Kamaladevi filed an appeal to High Court.

Issues Involved:

Whether a decree can be passed on the favor of a person who has been found guilty?

Contentions of Appellant:

The counsel of the Appellant contented that:

  • There had been a serious error on part of Trial Court for grating divorce after finding the fact that the respondent was one who ill-treated the Appellant and thrown her out of the house.
  • Although there was no case of restitution of conjugal rights but grating of divorce would allow respondent to take benefit of his wrong doings.

Contentions of Respondent:

The counsel of the respondent contented that-

  • Appellant never set up the illicit relationship of the respondent on her objections.
  • Respondent had made efforts to cohabitate with Appellant but having an unrelenting attitude instead of staying with him the Appellant stayed with her relatives which constitutes a sufficient ground for court to pass a decree for divorce.


The court allowed the appeal and set aside the judgment and decree passed by the Trial Court with cost borne by respondent at Rs. 5,000.

Ratio Decidendi:

  • According to Section 13 of Hindu Marriage Act, 1955 a decree for dissolution can be passed only if one of the grounds set-out thereunder is established by the party seeking that relief. And for adultery also a decree could be passed only upon proof of the fact that the spouse had after solemnization of the marriage had voluntary sexual intercourse with any other person. None of two grounds was established by the respondent in this case.
  • Also Section 23 of the Hindu Marriage Act, 1955 requires examining whether the party seeking relief is taking advantage of his own fault. It is only when the Court is satisfied that he/she is not taking any such advantage that a decree can be passed by it. In this case, the respondent was found to be guilty and was clearly trying to take advantage of his own wrong.


Wrong doers should be punished for their acts; it would be unfair if they are benefited for their wrong deeds. In this case the respondent (husband) not only was found to treat the wife with cruelty, forced her out of the matrimonial house but also found to have illicit relation with another woman.

Although the Trial Court did right by not granting decree for restitution of conjugal rights as conduct of husband created reasonable apprehension in the mind of wife that it would be unsafe for her to stay with her husband. High Court pointed out the mistake done by Trial Court by passing decree for divorce not only on the basis of contents but judicial approach as well.

As by giving the decree of divorce the husband was trying to make those wrongs a basis for grant of relief against the wife, and no person can take advantage of his own fault.

Drafted by: Harshpreet Kaur (Lloyd Law College)

Published On: September 17, 2021, at 19:27 IST