This article is written by Shilpi. This article contains a detailed analysis of the findings and decision of the Supreme Court in the case of Dharmendra Kumar v. Usha Kumar (1977). The article further elaborates on the importance of marital institutions in today’s scenario and presents a critical analysis of the Court’s judgement in shaping the position of the law in seeking dissolution of marriage where parties fail to comply with the decree of restitution of conjugal rights. Moreover, this article discusses the contentious issue of whether a party to a marriage can file for divorce by taking advantage of his or her own wrong. 

Introduction 

Marriage is the union of two souls. A male and a female tie the matrimonial knot and spend the rest of their lives together. This matrimonial relationship gives rise to certain rights and obligations for couples, both individually and jointly. These rights and obligations are referred to as ‘conjugal rights’.

The dynamic of relationships continues to evolve with time. While a married couple may start off their journey on a pleasant note, things may turn bitter over time. Some couples withstand the test of time and emerge stronger than ever. These couples view themselves as a single unit and keep aside their egos. However, not everyone shares this perspective. A few couples let situations get the better of them and lose their love and respect for each other in a sea of ups and downs. Instead of a single unit, they become each other’s competition. Over time, they choose to part ways and start afresh after the dissolution of marriage.

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When either spouse feels that they have been devoid of their conjugal rights, they can move the court for restitution. Even when complying with the court’s order, spouses do not end up happily together with each other. The possibility of divorce always lurks on the horizon. 

When one spouse chooses to end the marriage, the other may feel wronged or abandoned. The latter may state that the other failed to reciprocate the efforts needed to save the marriage from the brink of divorce. This article aims to discuss one such landmark case relating to restitution of conjugal rights and divorce, wherein the court has discussed the scope of the right of the party to seek dissolution of marriage only when they have not taken advantage of his or her wrong and deprived the other party of their matrimonial rights. 

Details of the case

The following are the fundamental details of the case:

Court: The Supreme Court of India

Petitioner: Dharmendra Kumar

Respondent: Usha Kumar

Case Number: Civil Appeal No. 949 of 1977

Neutral Citation: (1977) 4 SCC 12

Bench: A.C. Gupta and S. Murtaza Fazal Ali, JJ.

Date of decision: 19.08.1977

Relevant Act: The Hindu Marriage Act, 1955

Relevant Section(s) of the Act: Sections 9, 13(1A)(ii), and  23(1)(a) of the Hindu Marriage Act, 1955

Nature of the Petition: Special Leave Petition arising from the judgement and order dated 19.10.1976 of the Delhi High Court in the matter of F.A.O. 170 of 1976.

Background of the case 

The case of Dharmendra Kumar v. Usha Kumar (1977) primarily sheds light on the phrase ‘taking advantage of his or her own wrong’ used in Section 23(1)(a) of the Hindu Marriage Act 1955 (hereinafter referred to as “the Act”). In this case, a decree for restitution of conjugal rights was granted in favour of the Respondent. However, after the expiry of 2 years from the date of the grant of the decree for restitution of conjugal rights, the Respondent filed a petition under Section 13(1A)(ii) of the Act for dissolution of the marriage between the parties through divorce. The Petitioner raised objections against the petition for divorce filed by the Respondent. 

Facts of Dharmendra Kumar vs. Usha Kumar AIR (1977) 

The Respondent filed a petition under Section 9 of the Act before the Additional Senior Sub-Judge, Delhi, for restitution of conjugal rights. The Court granted the decree for restitution of conjugal rights in the favour of the Respondent on 27.08.1973. On 28.10.1975, the Respondent instituted a petition under Section 13(1A)(ii) of the Act in order to dissolve the marriage between the parties through a decree of divorce. In response to the petition for divorce, the Petitioner, in his written statement, admitted the fact that even after passing the decree for restitution of conjugal rights, no conjugal rights have been resumed between the parties. However, the Petitioner stated that he has taken steps to comply with the decree for restitution of conjugal rights by writing several registered letters to the Respondent and inviting the Respondent to live with him. 

The Petitioner contended that irrespective of the steps taken by him to comply with the decree for restitution of conjugal rights, the Respondent refused to receive some of the letters written to her by the Petitioner, and even when she received some of the letters, she omitted to reply to those. Hence, as per the Petitioner, it is the Respondent who is responsible for the failure to comply with the decree for restitution of conjugal rights. The Petitioner added that the Respondent is now trying to ‘make capital out of her own wrong’. 

Relevant provisions of Dharmendra Kumar vs. Usha Kumar AIR (1977)

Section 9 of the Hindu Marriage Act, 1955

In a marriage between a man and a woman, if either spouse withdraws from the life of the other spouse, refuses to participate in their misery and happiness, or stops sharing their life with the other spouse without offering a valid reason for their actions, the other spouse has the right to seek remedy before a district court for restitution of conjugal rights. This is provided under Section 9 of the Act. 

When the court has determined that there is no valid cause or legal obstruction in granting the requested remedy to the petitioner, it passes a decree for the restitution of conjugal rights, which both parties to the marriage have to comply with.  

Section 13(1A)(ii) of the Hindu Marriage Act, 1955

When there is no resumption of cohabitation between spouses for one year from the day of the issue of a decree for judicial separation, either spouse has the flexibility to file for divorce and seek dissolution of marriage.

In the context of this Section, ‘resumption of cohabitation’ refers to the existence of cordial relationships between the spouses wherein they are living together under the same roof. If the court finds that nothing bars the plaintiff, as per Section 23 of the Act, from seeking divorce, the court will sanction divorce under Section 13(1A) of the Act.

Section 23(1)(a) of the Hindu Marriage Act, 1955

A married person under Hindu law has the right to file for divorce on diverse grounds. However, to ensure that this step is not taken in haste or for personal benefit at the cost of causing distress and hurt to the other spouse, Section 23 of the Act safeguards the rights of the other party and bars the courts from granting matrimonial relief to the petitioner on several grounds. 

Clause (a) of sub-section (1) of Section 23 of the Act states that when a petitioner himself/herself is guilty of creating circumstances where the respondent acts out of provocation or reaction to the petitioner’s behaviour or activities, the petitioner cannot paint the respondent in a negative light and portray himself/herself as innocent. In this situation, the petitioner cannot file for divorce by holding the respondent guilty and cherry-picking facts for her/his advantage, which is seeking matrimonial relief. For example, if a husband beats his wife regularly in a state of drunkenness and one day the wife refuses to continue living with him under the same roof and walks out with her belongings, the husband cannot file for divorce in this situation since his behaviour and activities were responsible for the wife’s actions. He cannot take advantage of his wife’s reaction and knock on the court’s door for matrimonial relief while his own hands are not clean.  

Issues raised  

For adjudication of the dispute between the parties, the Court framed the following issue:

  • Whether the respondent’s refusal to comply with her husband’s efforts for restitution and filing for divorce amounts to taking advantage of her own wrong under Section 23 of the Act?

Arguments of the parties

Appellant 

The appellant has stated that he made massive efforts to save his marriage and comply with the restitution of conjugal rights as per the decree of the Court for the two years from the date of judgement. He wrote several registered letters to the respondent, requesting her to come and live with him and save the marriage. However, the respondent never reciprocated his efforts by accepting his invitation to stay with him under the same roof and comply with the decree of the Court. Moreover, not only did she ignore his request, she also refused to receive a few of the registered letters sent by him. The appellant argued that the respondent herself did not strive for restitution of conjugal rights and now wishes to take advantage of her own wrong by seeking dissolution of marriage by filing for divorce. 

Respondent  

While the judgement does not explicitly mention any argument presented by the respondent in the matter, the respondent could have stated that spouses did not have restitution of conjugal rights for a period of two years from the date of the decree of restitution of conjugal rights. 

Judgement in Dharmendra Kumar vs. Usha Kumar AIR (1977)

After application of the law according to the facts and circumstances of the case, the Supreme Court held that mere non-compliance with the decree for restitution of conjugal rights does not constitute a wrong in accordance with Section 23(1)(a) of the Act. The Court opined that for an act to be ‘wrong’ under Section 23(1)(a) of the Act, the act must go beyond the lack of an effort that portrays a mere attempt to reconcile or reunite. The act must be of a grievous nature that significantly denies the parties to perform their conjugal obligations. Such omission must be of such a nature that it entitles the parties to claim relief granted under the Act. Under Section 13 (1A)(ii) of the Act, the party is not taking advantage of his own wrong but availing of a legal right.

The Court held that even if the allegation made by the Appellant is true, that is, the Respondent has denied receiving or replying to the letters written by the Appellant, it does not amount to misconduct in accordance with Section 23(1)(a) of the Act. Therefore, the Apex Court held that as the act of the respondent does not amount to misconduct, she is entitled to the relief claimed by her, i.e., dissolution of marriage between the parties through divorce. 

Analysis of Dharmendra Kumar vs. Usha Kumar AIR (1977) 

A party cannot seek matrimonial relief under Section 23(1) if he takes advantage of his own ‘wrong’. It is a settled principle of law that one cannot blow hot and cold at the same time. Despite holding a considerable amount of importance, the term ‘wrong’ has not been defined in the Act. An act of defining something has the potential to restrict the scope of its application, which in certain circumstances can also lead to injustice. The act of constructing the meaning of ‘wrong’ has been delegated to the judiciary. Henceforth, various courts have defined an act as ‘wrong’ as per the facts and circumstances of a specific matter. 

In the case of M. Someswara v. Leelavathi (1968), the Karnataka High Court held that Section 23(1)(a) of the Act entitles the Court to grant the reliefs provided under the Act only when the Court is satisfied that the petitioner has not, in any way, taken advantage of his own wrong. In the present case, the wife was willing to perform her marital obligations; however, the husband refused to resume cohabitation and also mistreated his wife. Therefore, the court refused to grant the relief of divorce in favour of the husband. 

Similarly, in the case of Geeta Lakshmi v. G.V.R.K. Sarveswara Rao (1982), the Andhra Pradesh High Court held that the husband mistreated his wife after a decree for maintenance was passed in the favour of the husband. The husband also drove his wife away from his house. Keeping in consideration the present facts and circumstances, the Court refused to grant a decree of divorce to the husband in view of his own wrong.

A mere disinclination to offer for reunion should not be categorised as ‘wrong’ as per Section 23(1)(a) of the Act. In the case of T. Sareetha v. T. Venkata Subbaiah (1983), the Andhra Pradesh High Court held that a court decree granting restitution of conjugal rights amounts to an invasion of privacy and the right of an individual to take intimate decisions. 

Therefore, forcing two unwilling parties to continue with their conjugal rights will be a void attempt to restore a marriage that has been irretrievably broken down. Hence, the decision of the Court to not consider an act of not replying to or receiving the letters sent by one party to another party as a ‘wrong’ in accordance with Section 23(1)(a) of the Act is a logical deduction. 

Analysis of Section 13(1A)(ii) read with 23(1)(a) of the Hindu Marriage Act

Section 13(1A) of the Act was inserted by Amendment Act 44 of 1964. After the insertion of the amendment, Section 13(1A)(ii) of the Act lays down the provision that either party to the marriage has the option to file a petition for dissolution of marriage by a decree of divorce in the case where a decree for restitution of conjugal rights has been passed by a court in a proceeding and the parties have failed to comply with the decree within two years of passing of that decree. However, the time period of 2 years was reduced to 1 year under Amendment Act 68 of 1976. The right to file a petition for divorce under this Section is available to both husband and wife. 

In the case of Chaman Lal Chuni Lal v. Smt. Mohinder Devi (1967), the Punjab and Haryana High Court held that the wife had obtained the decree for restitution of conjugal rights against the husband; however, the husband moved to the High Court to file the petition for divorce. The Court held that it was the obligation of the husband to prove that he had taken steps to comply with the decree for restitution of conjugal rights. Once he proves that he made efforts to comply with the decree for restitution of conjugal rights, it can be deduced that he has not taken any advantage of his own wrong. However, the husband failed to prove that he had made efforts to comply with the decree for restitution of conjugal rights obtained by his wife. Hence, the Court decided that he was not entitled to the decree of divorce, as his omission amounted to him taking advantage of his own wrong.

The Delhi High Court in the case of Ram Kali v. Gopal Dass (1971) discussed the object behind the amendment in Section 13 of the Act. The Court laid down that the fundamental reason behind inserting Section 13(1A) is that even after the expiry of 2 years from the date of passing of the decree for restitution of the conjugal rights, if the parties have failed to resume cohabitation or comply with the decree for restitution of the conjugal rights, the court should presume that the marriage between the parties has irretrievably broken down, and, hence, there is no scope of reconciliation. In the absence of any possibility for reconciliation, the court might pass a decree for the dissolution of marriage by divorce. The enacted provision is in conformity with the modern practice of not forcing the parties to continue with a union that has been irretrievably broken down.

The power of the court to grant divorce under Section 13(1A)(ii) of the Act is subject to the provisions laid down under Section 23(1)(a) of the Act. Section 23(1)(a) of the Act provides that while filing a petition under Section 13(1A)(ii), the petitioner cannot take advantage of his own wrong. While interpreting the rule laid down under Section 23(1)(a) of the Act, the Delhi High Court in the case of Smt. Gajna Devi v. Purshottam Giri (1976) held that the rule laid down under Section 23(1)(a) of the Act does not apply to the statutory right available to the party to obtain a divorce that has been granted under Section 13(1A) of the Act. 

In the case of Sushil Kumari Dang v. Prem Kumar Dang (1976), the Delhi High Court distinguished that the husband filed a petition for restitution of conjugal rights while simultaneously alleging that his wife was in an adulterous relationship. It was held that the mere fact of contradiction of such nature proves that the petition filed by the petitioner is not bona fide, and hence, the Court held that the petitioner is not entitled to the remedy claimed as per Section 23(1) of the Act.

The Gujarat High Court in Anil Jayantilal Vyas v. Y. Sudhaben (1977) held that the mere omission of the husband to comply with the decree for restitution of conjugal rights obtained by the wife does not automatically direct that he has taken advantage of his own wrong so as to disentitle him from seeking the relief of divorce. 

In the case of Meera Bai v. Rainder Kumar Sobti (1985), the husband remarried during the lifetime of his wife without giving divorce to her. The wife filed a petition for restitution of conjugal rights; however, the husband did not object to the same. The Court granted the decree for the restitution of conjugal rights. The husband failed to comply with the decree for the restitution of conjugal rights as he had no intention to live with the petitioner. Subsequently, the husband filed a petition under Section 13(1A) of the Act for dissolution of marriage through a decree for divorce. The Delhi High Court held that the intention of the husband to let the wife receive the decree for restitution of conjugal rights while planning to file a divorce under Section 13(1A) of the Act clearly postulates the wrong on the part of the husband.

The Supreme Court in the case of T. Srinivasan v. T. Varalakshmi (Mrs.) (1998) observed that the intention of the husband to obtain the decree for restitution of conjugal rights was to keep his wife away from her rights to perform her conjugal rights rather than to act in consonance with the decree for restitution of conjugal rights. The wife demanded from her husband that he let her rejoin him; however, he refused her permission to enter the house. He also drove away her relatives and the other people who tried to rehabilitate the wife. The Court held that these acts of the husband amount to “misconduct,” which cannot be condoned as per the provision of Section 23(1)(a) of the Act.

The Karnataka High Court in that case of Smt. Asha N. v. Sri S. Vinay (2023) observed that the petitioner (husband) took such steps that made the resumption of marital life impossible for the wife, and, hence, he failed to act as a dutiful husband. Therefore, this act of husband falls within the term ‘wrong’ provided under Section 23(1)(a) of the Act. As he is guilty under Section 23(1)(a) of the Act, he is disentitled to the decree of dissolution of marriage by divorce under Section 13(1A)(ii) of the Act. 

The Calcutta High Court in the case of Nityananda Karmi v. Kum Kum Karmi (2002) provided that the court, while interpreting and applying the provisions of Section 13(1A) and 23(1) of the Act, should keep the principle of harmonious construction into consideration.

Conclusion 

The Hindu law and Indian judicial system consider marriage a social institution. In their eyes, the fabric of marriage should not be snagged until the last resort. The court tries its level best to reconcile estranged or bickering couples and gives them an extended period to resolve their dispute and resume their married life by keeping aside their differences. However, when the marriage has irretrievably broken down with no scope for reconciliation, it is an injustice to force two individuals to live together in a shared household when they have massive differences. 

It is in these situations that the court chooses to grant divorce and allow for the dissolution of marriages. But this relief is not granted in a vacuum. The court takes note of Section 23 of the Act, which outlines the bars for granting matrimonial relief to Hindu couples. Under this, the scope of ‘taking advantage of the wrong done by the petitioner’ proves instrumental in ensuring that the petitioner is not seeking relief for selfish reasons by accusing the respondent of actions or circumstances that the petitioner is primarily responsible for creating in the first place. The ambit of ‘wrong’ under this Section is to be determined as per the facts and circumstances of each case.

Frequently Asked Questions (FAQs)

What is the meaning of conjugal rights?

When two people marry each other, they must live together and enjoy a certain set of rights and obligations as spouses. These rights are as follows:

  1. The right to be part of each other’s lives and a shared space where one spouse does not lead a solitary life after marriage as he or she did in their bachelorhood. The spouses are part of each other’s society, and one cannot abandon the other as per their whims and fancies. The life that begins with marriage is one of shared journeys and responsibilities.
  2. The right to cohabit as a husband and wife and not deprive the other of this right for any unjust reasons.

These rights are known as conjugal rights. 

What is the meaning of restitution of conjugal rights?

The restitution of conjugal rights refers to a remedy for a married couple where they have been staying apart for a prescribed period and one spouse seems to have cut away from the life of another. The restoration of their rights that they enjoyed as a married couple before one withdrew herself/himself from the society of another refers to the restitution of conjugal rights. 

Which law provides for restitution of conjugal rights under Hindu law?

Section 9 of the Hindu Marriage Act, 1955, provides for the restitution of conjugal rights under Hindu law.

What are the essential elements to seek relief under Section 9 of the Hindu Marriage Act, 1955?

The couple applying for restitution of conjugal rights should be legally married to each other. One of them should withdraw themselves or exclude themselves from the society of another. Such withdrawal should not have any reasonable cause. The petitioner must prove to the court’s satisfaction that there is no valid reason according to the law for rejection of such a decree that grants restitution of conjugal rights.

What happens when the decree for restitution of conjugal rights is passed?

Once the court passes a decree for restitution of conjugal rights for a couple, the respondent is bound to cease withdrawing from the society of the petitioner and resume enjoying rights as a couple that the parties did right after marriage. They must live together and cohabit.

If the parties fail to comply with the decree of the court for restitution of conjugal rights for one year from the date of the decree, either party can file for divorce to seek dissolution of marriage.

What are the grounds for divorce in India for Hindu couples that can be filed by either party to a marriage?

The grounds for divorce for Hindu couples that can be filed by either husband and wife are as follows:

  1. Adultery
  2. Cruelty
  3. Desertion
  4. Conversion to another religion
  5. Mental disorder
  6. Communicable disease 
  7. Renunciation of the world
  8. Presumption of death
  9. Unsoundness of mind

Which act will not amount to ‘wrong’ in accordance with Section 23(1)(a) of the Act?

As per judicial precedents, the following actions of a party will not amount to ‘wrong’ as per Section 23(1)(a) of the Act:

References

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