Restitution of Conjugal:advantage of her own wrong
H and W got married and W files a petition for Restitution of Conjugal Right under section 9 of the Hindu Marriage Act. The decree has been granted in her favour but she does not let H to comply with the orders of the court and continues to live separately; H made several efforts but all were proved futile and they both continued to live separately for a period of one year. W approached the court for a decree of divorce under section 13 (1A), where one of the grounds is non compliance with the decree of RCR for one year or more. But H raised an objection and pleaded that she is taking advantage of her own wrong which is one of the matrimonial bars under section 23 (1)(a). What is the legal status on the above?
In 1977, the SC in the case of Dharmendra Kumar v. Kusha Kumar, discussed the same issue and SC held that the mere non compliance with the decree of restitution of conjugal rights, doesn’t constitute a wrong within the meaning of section 23 (1)(a) and the point which is to be noted is that section 23 was inserted before section 13 (1A). If the literal interpretation was to be given to this provision, then the intention with which 1964 amendment was done will become redundant. Moreover, to constitute a wrong under section 23(1) (a), there must be some grave misconduct on the part of the petitioner.
In 2001, in the case of Hira Chand Srinivas, the SC held that the rule laid down by the Dharmendra’s case is not at all binding on all the courts for all the times to come. Moreover, the court is not bound to grant divorce in each and every case that is filed under section 13 (1A). Courts have to apply their judicial minds to come to a conclusion and after appreciating all the evidences that has been produced before the court. But even in this case, the court does not define the word ‘wrong’.
In 2010, in the case of Ajith Kumar, the Kerala High Court made an attempt to define ‘wrong’. This case laid down some parameters which are as following:
- 1. Wrongdoer is the one who by his acts or conduct has made the restitution of conjugal right mere impossibility.
- 2. If that wrongdoer is a petitioner under section 13(1A), then the petition is not maintainable as “person cannot take advantage of his own wrong” and this one of the strongest matrimonial bar under section 23.
Sir, in this case if a decree for resitution of conjugal rights has been passed and if the wife got th decree and if husband wanted to join and he made attempts to join and he was prevented then he also should have issue a legal notice and filed a case for resitution of conjugal rights, still now also he can file a case for restitution of conjugal rights by pleading the said facts as stated by husband as to how he was prevented from joining the wife, hence as already a Petition for divorce has been filed the husband can file objections and also file a seperate case of RCR pleading the said facts.
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