Citations: Sushil Kumari Dang Vs Prem Kumar Dang (1976), AIR 1976 Delhi 321
Date of Judgement: 11/02/1976
Equivalent Citation: 13 (1977) DLT 279 b; 1976 RLR 487.
Case Type: Civil Appeal
Petitioner: Sushil Kumari Dang
Respondent: Prem Kumar Dang
Bench: Hon’ble Justice A.B. Rohatgi
Court: High Court of Delhi SUSHIL KUMARI DANG VS PREM KUMAR DANG
- The Hindu Marriage Act, 1955; Sections 9, 10, 23.
- Transfer of Property Act, 1882; Section 13
- Captain B.R. Syal Vs Smt. Ram Syal AIR 1968 P H 489;
- Jackson Vs Jackson 2003 (2) ALD Cri 144;
- Lacey Vs Lacey (1931) 146 L.T. 48;
- Joginder Kaur Vs Shiv Charan Singh, AIR 1965 J & K 95;
- Dastane Vs Dastane 1975 AIR 1534;
- Russell Vs Russell (1897) A.C. 395 (455);
- Gollins Vs Gollins 1964 A.C. 644 (660);
- Ishwar Chandra Ahluwalia Vs Pomilla Ahluwalia AIR 1962 PH 432.
- On 25.02.1970, the appellant got married to the respondent. Both the parties worked as lower division clerks, with a monthly salary of Rs 400 or Rs 450/-.
- The couple lived together till 15.07.1970. On 16.07.1970, the petitioner left for office and never returned to her matrimonial home.
- In February 1971, when they were living separately, a daughter was born to them. The daughter was five when the petition was brought and is living with her mother.
- On 13.07.1971, the husband (the respondent herein) filed a petition in the court for the restitution of conjugal rights provided under Section 9 of the Hindu Marriage Act, 1955. The husband contended that his wife abandoned him without any just and reasonable cause and refused to reconcile.
- The wife opposed the said petition filed by the husband in the court of Additional District Judge. She alleged that she was ill-treated and turned out of her matrimonial home by the respondent.
- The wife stated that the instances of mistreatment by the husband created reasonable apprehension in her mind, and it will be injurious for her to reside with him anymore.
- On 30.01.1974, the Trial Court held that the wife left her home without any just and reasonable cause and granted a decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act of 1955 in favor of her husband.
- It is also to note that, on 8.02.1974, the husband filed a petition for obtaining judicial separation under Section 10 of the Hindu Marriage Act 1955 in the Subordinate Court.
- Aggrieved by the order passed by the Trial Court, the wife filed an appeal in the High Court of Delhi that stayed on 15 October 1974.
- Whether the petition for a decree of restitution of conjugal rights filed by the husband under Section 9 of the Hindu Marriage Act, 1955 bonafide or malafide?
- Whether the husband (the respondent herein) was sincere for the court to allow a decree of restitution of conjugal rights?
Contention of Petitioner/Appellant:
- The petitioner asserted that her husband was cruel and has also mistreated her within the past. Once she was turned out of the house by the respondent. These events created reasonable apprehension in the mind of the petitioner and it was injurious to reside with him further.
- Further it was contended that the previous appeal filed by the respondent before the Trial Court is not genuine and is malafide. The husband had no genuine intention to cohabit with her.
- Moreover, the petitioner contended that the respondent used to come drunk and sometimes brought a girl along with him in the house. The respondent also snatched away her salary and demanded her for dowry.
- The appellant also testified that on 16.07.1970, she was turned out of her matrimonial home as she refused to provide a sum of Rs 10,000/- from her father.
- The learned counsel on behalf of the petitioner contended that no sufficient evidence was produced by the respondent to show that he wanted to bring back his wife back to her matrimonial home.
- Moreover, the husband has also accused her wife of illicit relations with Lalit Nayyar and after this it was not possible for the petitioner to go back and reunite with her husband.
- On one hand, the husband suspects her fidelity and on the other hand he wants restitution of conjugal rights.
Contention of Respondent:
- The counsel for the husband contended that the petitioner abandoned her matrimonial home without any just or reasonable cause and refused to get back.
- The Respondent’s mother, his friend named Madan Lal & Krishan Chand, and his brother-in-law, named Govind Lal, testified in his favor.
- The counsel alleged that the petitioner has also failed to mention the narrated acts of cruelty in her written statements.
- Moreover, the petitioner was not prepared to get back to her matrimonial home despite many efforts by the husband. The petitioner asked the respondent to stay with her at her father’s home if he wanted her company.
- Also, the learned counsel for the respondent pleaded that on 14th & 15th of July (1970), the wife was ill and was on medical leave. Even on 16.07.1970, the wife did not attend her office since she was unwell. The petitioner failed to prove contrary to the allegations.
- The learned counsel pleading on behalf of the husband contended that the said case must be decided based on the pleadings given by the parties.
- Also, the petitioner had an illicit relation with one Lalit Nayyar. Based on the advice of her family and Lalit Nayyar, she is residing with her parents, refusing to get back to her matrimonial home.
- The Hon’ble Supreme Court agreed with the Trial judge that the appellant has failed to establish sufficient cause for living apart from the respondent. However, the court held that for the grant of restitution of conjugal rights it is vital that the parties must be sincere.
- The Court observed that the decision made by the Trial Court was not well-founded, and hence the grant of the decree in the favor of the husband was also not appropriate.
- It is to highlight that the parties must harbor no other ulterior motives apart from the resumption of cohabitation when pleading under Section 9 of the Act.
- Also, after the grant of decree of restitution of conjugal right the respondent filed another for judicial separation in the Subordinate Court.
- This act of the respondent was incongruous. The appellant did not wait for a year as prescribed under Section 13A (2) of the Hindu Marriage Act before filing another suit under Section 9 of the Act.
- In this case, the Court observed that the petition filed by the husband for the restitution was not bonafide, and hence this petition cannot be maintained. The parties were not sincere in their approach.
- Therefore, the husband’s petition for restitution of conjugal rights was dismissed and the order by the Trial Court was set aside.
The appeal of the petitioner, therefore, stands allowed.
- Firstly, there was no genuine intention on the part of the husband to live with her wife. For the order of the restitution of conjugal rights to succeed, it is vital that the husband must be sincere in his efforts.
- Secondly, the stand taken by the husband is conflicting. For instance, on the one hand, the respondent suspected his wife’s fidelity by associating her with another man, and on the other aspect, he expected a decree for the restitution of conjugal rights.
- Also, it was found that after succeeding in the petition for the restitution, the respondent filed a fresh petition for judicial separation under Section 10 of the Hindu Marriage Act in the Court of Subordinate Judge.
- The matrimonial remedy of restitution of conjugal rights under the Act is provided for the object of preservation of marriage and not for satisfying any other ulterior motive. The court observed that somewhere the husband wanted to use the decree as a medium for ultimate divorce.
- In this case, the husband (-the respondent in the instant matter) was neither found sincere in his efforts nor, his contentions were bonafide so as to resume their matrimonial cohabitation.
To conclude, we can say that the High Court of Delhi was appropriate in reversing the decree passed by the Trial Court. The decree or any order for the restitution of conjugal rights cannot be granted, in the absence of genuine intention to preserve the marriage by the parties.
The application of Section 9 of the Hindu Marriage Act for the restitution to matrimonial rights must be bonafide and for the benefit of the parties to the marriage.
Drafted By: Shivani Tiwary, School of Law DAVV.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
Published On: October 31, 2021 at 12:33 IST