Case – Dharmendra Kumar v. Usha Kumar, 1977
Fact – The wife had petitioned and obtained a decree of restitution. Later, she filed for divorce under section 13(1A). In defence to the petition for divorce under section 13(1A), the husband contended that it was the wife who had refused to stay with him, thereby rendering the decree for restitution ineffective.
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 proceeding but stated that he made attempts “to comply with the decree 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.”
Issue – Whether the petitioner is not in any way taking advantage of her own wrong for the reasons given in the written statement?
Contentions and Judgement :
- The Supreme Court held that where the petition is under section 13(1A), the mere disinclination of a party to affect reunion as contemplated by a decree of restitution is not a wrong within section 23, and thus it does not disentitle that party to the relief. The wrong must consist of some serious misconduct.
- The Supreme Court did not accept the husband’s defence, holding that the word “wrong” in the above situation meant something more than a mere disinclination to agree to an offer of reunion.
- It must be conduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled to. The question whether the wrong must be subsequent to the decree for restitution did not arise squarely before the court.
- The conduct of the petitioner spouse must be of such grave and weighty character, as in the opinion, of the court should disentitle such spouse from getting the relief.
- Held that the spouse against whom the decree for restitution has gone should not be deprived of relief under this provision on the ground of non-compliance with the same, unless such spouse is guilty of a “wrong” amounting to serious misconduct within the meaning of section 23(1)(a).
- The section, however, cannot be altogether taken out of the purview of section 23(1)(a). Where after a decree for restitution of conjugal rights in favour of the wife, the husband not only did not comply with the decree but ill-treated her and finally drove her out of the house; it was held that he was not entitled to any relief under the amended subsection.
- In order to be a “wrong” within the meaning of … [this clause], the conduct…alleged 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 live 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.
