Dharmendra Kumar v. Usha Kumar

Facts

The wife obtained a decree for restitution of conjugal rights but, two years later, sought divorce under Section 13(1A)(ii) on the ground that there had been no restitution since the decree. The husband resisted, alleging she had refused to receive or reply to his letters inviting her to live with him, so she was taking advantage of her own wrong under Section 23(1)(a). The lower courts granted divorce.

Issues

• Whether a spouse who obtained a restitution decree but did not insist on compliance is barred by Section 23(1)(a) from later obtaining divorce under Section 13(1A)(ii)
• What conduct constitutes a 'wrong' within Section 23(1)(a)

Arguments

The husband argued the wife's refusal to respond to his invitations meant she was profiting from her own wrong, disentitling her under Section 23(1)(a). The wife argued she was merely exercising the statutory right created by Section 13(1A) on the admitted absence of restitution.

Held

The Court approved Ram Kali and Gajna Devi and held that 'taking advantage of his or her own wrong' in Section 23(1)(a) does not cover the exercise of the statutory right conferred by Section 13(1A); to read it otherwise would render Section 13(1A) nugatory. To be a 'wrong' the conduct must be misconduct serious enough to justify denial of relief — something more than mere disinclination to a reunion offer. The wife's refusal to answer letters was not such grave misconduct, so the divorce decree was upheld and the appeal dismissed.

Ratio decidendi

Section 23(1)(a) does not bar the party against whom (or by whom) a restitution decree was passed from obtaining divorce under Section 13(1A) merely for non-resumption of cohabitation; only misconduct grave enough to justify refusal of relief constitutes a 'wrong'.

Significance

Settled the relationship between Section 13(1A) and Section 23(1)(a), allowing the 'guilty' spouse to seek divorce after a restitution/separation decree; relied on in Saroj Rani v. Sudarshan Kumar and key to the working of breakdown-based divorce under the Act.

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