Dharmendra Kumar v. Usha Kumar (1977)
Dixita Baishya
University Law College, Gauhati University
This Case Commentary is written by Dixita Baishya, a Third-Year Law student of University Law College, Gauhati University
CASE NAME: Dharmendra Kumar v. Usha Kumar AIR(1977)
DATE OF JUDGEMENT: 19 August 1977
NAME OF PETITIONER: Dharmendra Kumar
NAME OF RESPONDENT: Usha Kumar
COURT: The Supreme Court Of India
BENCH: Justice AC Gupta, Justice S.Murtuza, Justice Fazal Ali, JJ
Facts:
The respondent filed a petition before the additional senior sub-judge for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955.
On 27 August 1973, the court granted the decree for restitution of conjugal rights.
On 28 October 1975, the respondent filed for divorce under section 13, 1 (a) (ii) of the act.
The petitioner in his written statement admitted the fact that even after the decree granted by the court for restitution of conjugal rights, no conjugal rights have been restored between them.
The petitioner, however, to various states by writing letters to the respondent and inviting the respondent to leave with him.
The petitioner stated that despite the steps taken by him to follow the decree for restitution of conjugal rights, the respondent refused to receive some of the letters, and even if she received she ignored them.
The petitioner does state that it is the respondent who is responsible for the failure to comply with the decree for restitution of conjugal rights.
The petitioner claimed that the respondent is now trying to take advantage of her wrong.
Issues raised:
Whether in your compliance the respondent with the decree for restitution of conjugal rights amount to taking advantage of your wrong under section 23 of the Hindu Marriage Act, 1955?
Laws:
1. Section 9 of the Hindu Marriage Act, 1955.
The right of the spouse to seek remedy before the court for restitution of conjugal rights as provided under section 9 of the act
2. Section 13 (1A) (ii)of the Hindu Marriage Act, 1955
The other spouse can file for divorce if a couple has been living separately for one year after judicial separation, if the court finds no legal issues, preventing the divorce, it will grant the divorce under section 13 (A) (ii) of the Hindu Marriage Act, 1955.
3. Section 23 (1) (a) of the Hindu Marriage Act, 1955
This section prohibits individuals from getting a divorce on the grounds of personal gain at the cost of causing distress to the other spouse.
Analysis:
A party cannot seek matrimonial relief under section 23(1)If he is the one who is faulty although the term is wrong a significant in the context of the act, it has not been specifically defined.
In the case of M Someshwara v Leelavathi, 1968 the Karnataka High Court ruled that under section 23 (1) (a) of the act, the coordinated husband’s request for divorce because he was the one who mistreated his willing wife.
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 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 the reunion should not be categorized 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 make 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’ by Section 23(1)(a) of the Act is a logical deduction.
Arguments of the parties:
Appellant
The appellant has claimed that he made huge efforts to save his marriage and comply with the restitution of conjugal rights as per the decree of the Court for two years from the date of judgment. He wrote several registered letters to the respondent, requesting her to come and live with him and save the marriage. However, the respondent never appreciated his efforts by accepting his invitation to stay with him under the same roof and comply with the decree of the Court. Also, not only did she ignore his request, but she also refused to admit many of the registered letters transferred by him. The complainant argued that the respondent herself did not strive for reparation of marital rights and wished to take advantage of her wrong by seeking dissolution of marriage by filing for divorce.
Respondent
While the judgment does not explicitly mention any argument presented by the respondent in the matter, the respondent could have stated that consorts did not have restitution of conjugal rights for two years from the date of the decree of restitution of conjugal rights.
Conclusion:
The Hindu law and Indian judicial system consider marriage a social institution. In their eyes, the fabric of marriage should not be snared until the last resort. The court tries to reconcile clashing 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 compass for conciliation, it is an injustice to force two individuals to live together in a shared household when they have massive differences.
In the case of Dharmendra Kumar vs Usha Kumar, AIR (1977) ruled that near compliance with the restitution degree does not amount to misconduct under section 23 (1) (a) of the Hindu Marriage Act. Based on the facts Honourable J Gupta dismissed the appeal on the ground that the respondent had every legal right to obtain a divorce and defy the decree of conjugal rights if she did not want to be with the appellate.
References:
https://blog.ipleaders.in/dharmendra-kumar-vs-usha-kumar-air-1977/
https://legalvidhiya.com/dharmendra-kumar-vs-usha-kumar/
https://lawplanet.in/dharmendra-kumar-vs-usha-kumar-case/