In the Delhi High Court
Citation: AIR 1976 Delhi 321, 13 (1977) DLT 279 b, 1976 RLR 487
Sushil Kumari Dang
Prem Kumar Dang
11th February, 1976
Hon’ble Justice A.B. Rohatgi
The remedy of restitution of conjugal rights is the fundamental rule of matrimonial law which entitles one spouse to the surrounding and comfort of the other spouse. It is aimed for preserving the marriage but what if one party attains the decree of restitution of conjugal rights through mala fide intentions.
- The husband Sushil Kumar [hereinafter referred to as the “Appellant”] married Prem Kumar [hereinafter referred to as the “Respondent”] on 25th February, 1970 and lived together till 15th July, 1970.
- On 16th July, 1970 the appellant left in the morning and never returned back to her matrimonial house.
- Almost a year later in February 1971, the appellant while leaving apart from the respondent gave birth to a girl child, who is five years old and is living with the appellant.
- On 13th July 1971, the respondent under Section 9 of the Hindu Marriage Act, filed a petition for restitution of conjugal rights.
- After the defence put forth by both the parties and the failure of the appellant to provide reasonable excuse for living separately from the respondent, the Trial Judge on 30th January 1974, granted a decree to the respondent for restitution of conjugal rights.
- On 8th February 1974, the respondent then filed another petition under Section 10 of the Act for judicial separation.
- Dissatisfied with this the appellant on October 15th, 1974 filed another appeal in the High Court thereby putting a stay on the above proceedings.
- Whether, the restitution of conjugal rights be granted in case of mala fide intentions.
- The appellant contended that the petition filed by the respondent was made mala fide as he had no intention to live with her. On 16th July 1970 the respondent had beaten her and then drove her out of the matrimonial house.
- She further contended that the respondent use to come drunk in the house and sometimes brought a girl along. The respondent also took away her salary and wanted to appropriate her entire dowry.
- The respondent contended that the appellant had left her matrimonial house without just cause and refused to return despite his efforts.
- He further stated, the appellant had an illicit relation with another man named Lalit Nayyar.
- The Court in agreement with the Trial Judge stated that though the appellant had narrated the acts of cruelty in her evidence, but none of those were found in her written statement. And so, the appellant failed to show sufficient cause for living separately from the respondent.
- However, the Court observed for restitution of the conjugal rights to be granted, it is necessary that the parties must be sincere. That is to say the parties must harbor no ulterior motives apart from resumption of cohabitation.
- In the above case the respondent accused the appellant for having an illicit relation with Lalit Nayyar who, according to the appellant was her “dharam bhai” and denied all the allegations regarding the same.
- The Court dissenting with the view of Trial Judge stated the fact that Lalit Nayyar use to come along with the appellant to the Court did not prove that there was some sort of illicit relation between the two. The conclusion drawn by the Trial Judge was not well founded and the grant of a decree for restitution of conjugal rights to the respondent was suprising.
- On 8th February, 1974 the respondent filed another petition for judicial separation. The Court observed that the respondent’s claim was incongruous as on one hand he claimed for restitution of conjugal rights and on the other he accused the appellant of having an illicit relation with another man. He cannot claim the appellant to live with him when he suspects her for adultery.
- Also, as per Section 13(A)(ii), which states that a party may present a petition for the dissolution of the marriage by a decree of divorce on the ground “that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.” The appellant did not wait for a year and immediately bought another petition for judicial separation, this helps for judging the sincerity of the respondent towards the appellant.
The Court taking in consideration the judgement held in Ishwar Chandra Ahluwalia vs. Pomilla where C.J. Falshaw stated that it was merely impossible for a wife to comply with restitution of conjugal rights when the husband himself was proceeding with a petition for nullifying the marriage, allowed the appeal and set aside the decree of restitution of conjugal rights granted by the Trial Judge.
Hence, it is concluded that the grant for restitution of conjugal rights cannot be granted if there are any ulterior motives other than preservation of marriage as such motives strikes at the very foundation of a close and intimate union we call marriage, making the discharge of marriage duties unendurable and impossible.
- Sushil Kumari Dang vs. Prem Kumar Dang.
- Ishwar Chandra Ahluwalia vs. Pomilla (AIR 1962 P H 432).
- The Hindu Marriage Act, 1955.