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PETITIONER: DHARMENDRA KUMAR

       Vs.

RESPONDENT: USHA KUMAR

DATE OF JUDGMENT19/08/1977

BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. FAZALALI, SYED MURTAZA

CITATION:  1977 AIR 2218            1978 SCR  (1) 315  1977 SCC  (4)  12  CITATOR INFO :  R          1984 SC1562  (5)

ACT: Hindu  Marriage  Act  1955-Section   13(1A)(ii).-23(1)(a)-If divorce  can  be  obtained for  absence  of  restitution  of conjugal rights after decree for restitution is granted by a person  who  refuses  to  have  restitution-Whether  such  a conduct amounts to a wrong within the meaning of sec. 23 (1) (a) of the Act.

HEADNOTE: The respondent-wife was granted a decree for restitution  of conjugal  rights  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  respondent presented a petition under s. 13(1A) (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 bad 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 (1A) was introduced in section  13  by section  2 of Hindu Marriage (Amendment) Act 1964.   Section 13 as it stood before the 1964 amendment permitted only  the

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spouse  who  had  obtained the  decree  for  restitution  of conjugal rights to apply for relief by way of divorce.   The party against whom the decree was passe(, 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 reasonably 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  s. 23(1)(a) the conduct alleged has to be something 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. Mere  non-compliance with a decree for restitution does  not constitute  wrong  within the meaning of  section  23(1)(a). [317D-G]

JUDGMENT: 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.0., No.  170  of 1976. Naunit  Lal,  R. K. Baweja and Miss Lalita  Kohli,  for  the Appellant. S.   L.  Watel,  C.  R. Somasekharan, R.  Watel  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 Hindu  Marriage  Act,  1955, the respondent  was  granted  a decree for restitution of conjugal rights by the  Additional Senior Sub-Judge, Delhi on 316 August 27, 1973.  A little over two years after that  decree was  passed,  on October 28, 1975 she presented  a  petition under  section 13 ( IA) (ii) of the Act in the Court of  the Additional District Judge, Delhi, for the dissolution of the marriage by a decree of divorce.  Section 13 (IA) (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 controversy.  In the petition under section 1 3 (IA) (ii)   she-we  shall  hereinafter  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 his 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- ceeding,  but stated that he made attempts "to  comply  with

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the  decree (for restitution of conjugal rights) by  writing several   registered   letters  to   the   petitioner"   and "otherwise"  inviting her to live with him.   He  complained that the petitioner "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".   The  objection taken  in  the  written statement  is  apparently  based  on section  2  3  (1 ) (a) of the Act.  The  relevant  part  of section 2 3 (1) (a) states : Decree in proceedings.               "23.  (1)  In any proceeding under  this  Act,               whether  defended  or  not, if  the  court  is               satisfied that-               (a)   any  of the grounds for granting  relief               exists  and the petitioner........ is  not  in               any  way  taking advantage of his or  her  own               wrong  or disability for the purpose  of  such               relief...... "               On  the  pleadings  the  following  issue  was               raised as issue No. 1               "Whether  the  petitioner is not  in  any  way               taking  advantage  of her own  wrong  for  the               reasons given in the written statement ?"               317               Subsequently  the following  additional  issue               was also framed               "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.L.R. (1971) 1 Delhi 6, (Ram  Kali  v.  Gopal Dass),  and  a later decision of a learned single  Judge  of that  court  reported in I.L.R. (1076) 1 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 petitioner was trying to take advantage of her  own wrong  and, therefore, the objection covered by issue No.  1 was not available to the respondent The Additional  District Judge  accordingly  allowed  the petition  and  granted  the petitioner  a  decree of divorce as prayed for.   An  appeal from  this  decision  taken by  the  husband  was  summarily dismissed  by the Delhi High Court.  In the  present  appeal the husband questions the validity of the decree of  divorce granted in favour of the petitioner. Section 13 (IA) (ii) of the Hindu Marriage Act, 1955  allows either  party  to a marriage to present a petition  for  the 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  (IA)  was introduced in section 13 by section 2 of the Hindu  Marriage (Amendment) Act, 1964 (44 of 1964).  Section 13 as it  stood 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 party against  whom the decree was passed was not given that right.  The grounds for granting relief under section 1 3) including sub-section (IA)  however  continue to be subject to the  provisions  of section  23  of the Act.  We have quoted above the  part  of section  23  relevant  for  the  present  purpose.   It   is contended  by the appellant that the allegation made in  his

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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 section 1 3 (1  A)  (ii)  On  the admitted  facts, the petitioner was undoubtedly entitled  to ask for a decree of divorce.  Would the allegation, if true, that she did not respond to her husband’s invitation to come and  live with him disentitle her to the relief ? We do  not find it 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 meaning of section 2  3  (1) (a).   Relving on and explaining this decision in the  later case of Gajna Devi v. Purshotam Giri (supra) a learned Judge of the same High Court observed               "Section 23 existed in the statute book  prior               to  the insertion of section 13(1A)......  Had               Parliament  intended  that a  party  which  is               guilty of a matrimonial offence and against               318               which  a  decree for  judicial  separation  or               restitution   of  conjugal  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 (1 A)               and  with  such exception,  the  provision  of               section  13(1A) would practically  become  re-               dundant  as the guilty party could never  reap               benefit   of  obtaining  divorce,  while   the               innocent party was entitled to obtain it  even               under  the  statute  as  it  was  before   the               amendment.  Section 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(1A) nugatory.               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.  Gopal  Das  (supra) and Gajna  Devi  v.  Purshotam  Giri (supra).   Therefore,  it would not be  very  reasonable  to think  that  the  relief which is available  to  the  spouse against  whom  a  decree for restitution  has  been  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 something 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 statement 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 Eve  with him.   This  allegation, even if true, does  not  amount  to misconduct grave enough to disentitle the petitioner to  the relief she has asked for.  The appeal is therefore dismissed but without any order as to costs.

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P.H.P. Appeal dismissed. 319