Dharmendra Kumar v. Usha Kumar (1977)

A wife who obtains a decree for restitution of conjugal rights and then does not resume cohabitation is regularly met with the accusation that she is profiting from her own wrong. This is the decision that answers it. It holds that mere non-compliance with a restitution decree is not a "wrong" within the bar, and that a spouse who invokes the statutory right to divorce after the decree has lain unexecuted is taking advantage of a legal right, not of her own wrongdoing.

The wife obtained a decree for restitution of conjugal rights on 27 August 1973. A little over two years later, on 28 October 1975, she petitioned for divorce on the ground that there had been no restitution of conjugal rights for two years or upwards after the decree.

The husband admitted in his written statement that there had been no restitution. He said, however, that he had made attempts to comply with the decree by writing several registered letters and otherwise inviting her to live with him; that she refused to receive some of the letters and never replied to those she received; and that she had herself prevented the restitution she had prayed for and now sought to make capital out of her own wrong. The objection rested on the statutory bar that relief may be decreed only where the petitioner is not in any way taking advantage of his or her own wrong.

The Additional District Judge held that no circumstance had been alleged from which it could be said she was taking advantage of her own wrong, and granted the decree of divorce. The High Court summarily dismissed the husband's appeal.

The appeal was dismissed and the decree of divorce upheld. On the admitted facts the wife was undoubtedly entitled to ask for divorce, and the allegation that she did not respond to her husband's invitations, even if true, did not disentitle her.

1. Note what the 1964 amendment did. Before it, only the spouse who had obtained the restitution decree could apply for divorce on the footing that it had not been complied with; the party against whom it was passed had no such right. The amendment gave the right to either party. The grounds under the section, including this one, nevertheless remain subject to the bars.

1. Mere non-compliance is not a wrong. A Full Bench of the Delhi High Court had so held, and this Court approved it. To be a wrong within the bar, 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 spouse is otherwise entitled.

1. Do not read the bar so as to nullify the amendment. The bar existed in the statute before the new ground was inserted. Had Parliament intended that a party against whom a restitution decree had been passed should be barred, it would have inserted an exception; with such an exception the new provision would be practically redundant, since the guilty party could never obtain divorce while the innocent party could already do so under the old law. The bar cannot be construed so as to make the amendment nugatory.

1. Taking a statutory right is not taking advantage of a wrong. The expression in the bar does not apply to taking advantage of the statutory right to dissolution conferred by the new provision. In such a case the party is taking advantage of the legal right following upon the passing of the decree and the failure of the parties to comply with it.

1. Do not make the decree-holder worse off. It would not be reasonable to think that relief available to the spouse against whom a restitution decree has been passed should be denied to the one who does not insist on compliance with a decree passed in his or her favour.

1. Apply it. The only allegation was that she refused to receive or reply to his letters and did not respond to his attempts. Even if true, that was not misconduct grave enough to disentitle her.

It opens the standard problem on divorce following a restitution decree. The method is: establish the decree and the statutory period; then ask whether the objector can point to positive misconduct beyond non-compliance.

It disposes of the argument that a spouse who obtained a restitution decree and then stayed away is automatically barred from divorce.

It does not decide that the bar can never apply to such a petition. Where the petitioner has done positive acts of wrong — obtaining the decree in order not to obey it, and driving the other spouse away — the relief is refused; the companion case on a husband who did exactly that is the necessary counterweight, and a complete answer carries both.