Dharmendra Kumar vs Usha Kumar Case deals with the issue of whether mere non-compliance with a decree for restitution of conjugal rights constitutes “wrong” within the meaning of Section 23(1)(a) of the Hindu Marriage Act, 1956.
BENCH: J. GUPTA
DATE OF JUDGMENT: 19 August 1977
FACTS OF DHARMENDRA KUMAR vs USHA KUMAR CASE:
- The appellant referred in this case, Mr. Dharmendra Kumar has filed an appeal against the decree of divorce being granted to the Respondent, Mrs. Usha Kumar under section 13(1A) (ii) of the Hindu Marriage Act, 1955 in the Supreme Court of India.
- On 27th August 1973, the respondent’s wife had applied to get a decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, before the Additional Senior Sub-Judge, Delhi.
- According to Section 9 of the Hindu Marriage Act, 1955 “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.”
- Thereafter, a petition for Decree of Divorce under sec 13(1A) (ii) of the Hindu Marriage Act,1955 was being filed by the Respondent on 28th October 1975 on the ground that no restitution of conjugal rights had taken place between the parties after the passing of the decree for restitution of conjugal rights.
- The fact that there had been no restitution of conjugal rights for over 2 years which was admitted by the appellant and he also alleged that he attempted to comply with the decree by writing registered letters intending to invite the respondent to cohabitate with him to which the wife did not respond preventing the restitution of conjugal rights and was making a capital out of her own wrong.
- Hence, an appeal was filed by the Appellant against the decree of divorce being granted to the Respondent.
Whether mere non-compliance with a decree for restitution of conjugal rights constitutes “wrong” within the meaning of section 23(1)(a)?
It has been clearly stated by law that in order to constitute “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.
[Case Reference: Ram Kali vs Gopal Das and Gajna Devi vs Purshotam Giri]
DHARMENDRA KUMAR vs USHA KUMAR JUDGMENT:
In view of the above facts, there had been no circumstances from which it could be said that the Respondent’s wife was intending to take advantage of her own wrong. In case there had been evidence proving the above allegation, it would still not amount to misconduct grave enough to dis-entitle the relief being granted to the Respondent wife.
The appeal was therefore dismissed by the Honorable J. Gupta on the ground that the Respondent had a complete legal right to obtain a decree of divorce and to defy the decree of conjugal rights if she is not willing to cohabitate with the Appellant and there is no further scope of reconciliation.
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