Citation: AIR 1976 Delhi 321, 13 (1977) DLT 279 b, 1976 RLR 487
Appellant: Sushil Kumari Dang
Respondent: Prem Kumar Dang
Decided on: 11th February 1976
The appellant Sushil Kumar was married to the respondent Prem Kumar on February 25, 1970. The husband and wife lived together till July 15, 1970. The case of the husband is that on July 16, 1970, the wife left his house in the morning to join her duties at the office. She did not come back to his house in the evening. Thereafter she never came back to her matrimonial home. At the time the wife left the house on July 16, 1970, she was in the family way.
In February 1971 when the husband and wife were living apart a daughter was born to the wife. She is living with her mother. On July 13, 1971, the husband filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. The husband alleged that the wife left the house against his consent on July 16, 1970, and that she is living separately without just cause and refuses to come to him despite his efforts.
The wife opposed the petition. Her main defense was that on July 16, 1970, she was beaten and turned out of the house by her husband. She pleaded that her husband was cruel to her and that she had apprehension in her mind that it will be harmful and injurious for her to live with him. She also said that the petition has been made mala fide and that the husband had no intention to live with her.
The husband filed a replication. The trial judge held that the wife left the matrimonial home without any reasonable excuse and that her allegation of cruelty was false. He granted the husband a decree of restitution of conjugal rights. Now the wife, Sushil Kumari appeals in the Delhi High Court.
Whether the restitution of conjugal rights is granted in case of mala fide intentions.
The court held that the wife couldn’t make an effort to comply with the decree for restitution of conjugal rights, as long as the husband was proceeding with a petition for nullity of the marriage and that it was doubtful whether any sincere efforts were made on behalf of the husband to get his wife to comply with the decree. The husband’s petition was dismissed. For these reasons, the court allow the appeal and set aside the decree of the trial judge. The petition for restitution of conjugal rights is dismissed. In the circumstances, the parties are left to bear their costs.
Section 23 of the Hindu Marriage Act, 1955 says that the judge has to be satisfied on a preponderance of probabilities of matters mentioned in clauses (a) to (e) of that Section. It confers power on the court to pass a decree if it is satisfied on those matters.
The Court took into consideration the case of Ishwar Chandra Ahluwalia v. Pomilla Ahluwalia, where after a decree for restitution of conjugal rights had been passed, the husband proceeded with a petition for annulment of marriage under S. 12(1)(c) of the Act. After its dismissal, and after the expiry of the period of two years from the date of the passing of a decree for restitution of conjugal rights, he filed a petition for dissolution of marriage under Section 13 on the ground of non-compliance of the decree by the wife.
In the case of Dastane v. Dastane, it was aid that the legislature has emphasized that if the court is satisfied with grounds (a) to (e) then the relief may be granted.
In Mst. Gurdev Kaur v. Swaran Singh, the judge said: “The Court would refuse to order restitution where it has become a practical impossibility for the parties to live together.”
In Gollins v. Gollins, Lord Reid said: “A judge does, and must try to read the minds of the parties in order to evaluate their conduct. In matrimonial cases, we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better.”
The husband is claiming restitution as charging the wife with illicit sexual intercourse sometimes in concealed words and sometimes in the plainest of terms. The husband in his examination-in-chief said that he was prepared to take back the wife without any conditions but he has not said that he is prepared to forgive and forget the past and is no more interested in persisting in an old groundless charge.
The judge further says that it seems to me that the husband’s choice of remedy was unfortunate. He elected for the wrong relief. Instead of suing for judicial separation, he sued for restitution for reasons best known to him. Matrimonial law ought not to be made the pawn for selfish gains unconnected with a matrimonial home in the hands of one spouse to the detriment of the other. One would think that the court might well refuse to afford its assistance to one who acted thus.
In law, the husband was bound to wait for a period of 2 years to give the wife a chance to join him and obey the decree of restitution of conjugal rights passed against her. In this case, the husband did not wait for two years. Hardly 7 days passed. He brought another case against the wife. By bringing the proceedings for judicial separation he was closing the doors to the wife for resumption of conjugal rights. In fact, he did not want her to come to him even if the wife were minded to resume cohabitation.
In the following case, the respondent that is the husband does not have an ulterior motive to preserve his marriage with the plaintiff. Keeping this in mind the court 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.
In my opinion, the court has given a very good decision as the husband has succeeded in proving his case on merits but the court is not satisfied that he is entitled to a decree for restitution. Since he has no genuine desire for the resumption of married life.