Section 23(1), Hindu Marriage Act 1955: Leading Case (Dharmendra Kumar v. Usha Kumar)

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 Dharmendra Kumar v. Usha Kumar

Facts:

In this appeal filed by the Appellant, Mr Dharmendra Kumar, he argued that the Respondent had not complied with the court’s order to restitution of conjugal rights and had taken the benefit of it. The restitution of conjugal rights states that “the guilty party has to stay with the aggrieved party to resolve their marriage by cohabitation for a period of time specified by law.

On 27th August 1973, the Respondent was granted a decree of restitution of conjugal rights on her application by the Additional Senior Sub-Judge, Delhi. On 28th October 1975. The Respondent proceeded with a petition under S. 13(1A) (ii) of the Act[4] which asked for the dissolution of the marriage in the Court of Additional District Judge, Delhi. A decree of divorce was petitioned stating there had been no restitution of conjugal rights amongst the parties after the decree was passed. Although, as claimed by the Appellant, he had attempted to comply with the court’s order the Respondent had not replied to the letters and was making capital out of her own wrong which she was not entitled to do according to Section 23 (1) (a) of The Hindu Marriage Act, 1955. Therewith, the Appellant filed an appeal[5] to the Supreme Court of India to hold his ground and get justice.



Issues: 

1.     Whether the respondent is taking advantage of her own wrong as mentioned in Section 23 (1) by not complying with the decree of RCR but is filing for divorce after lapse of 2 years from the passed decree?

 

Ratio decidendi: 

Sec. 13(1A)(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 (1A) was introduced in Sec. 13 by Section 2 of the Hindu Marriage (Amendment) Act, 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 13 including sub-section (1A) however continue to be subject to the provisions of Section 23 of the Act. 

 

In Ram Kali case, the Court held that mere non-compliance with the decree for restitution does not constitute a wrong within the meaning of Section 23(1)(a).

 

Relying on and explaining this decision in the later case of Gajna Devi v. Purshotam Giri the 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 which a decree for judicial separation or restitution of conjugal rights had been passed, was in view of Sec. 23 of the Act, not entitled to obtain divorce then it would have inserted an exception to Section 13(1A) and with such exception the provision of Section 13(1A) would practically become redundant 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 Section 13(1A) nugatory.

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.

 

Judgement: 

The divorce was granted to the couple. 

 

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