SUSHIL KUMARI DANG VS PREM KUMARI

BY MISS SHALINI DHYANI[1]

IN THE HIGH COURT OF DELHI

NAME OF THE CASESushila Kumari Dang vs Prem Kumari
CITATIONAIR 1976 Delhi 321, 13 91977) DLT 279 b, 1976 RLR 487
DATE OF THE CASEFebruary 11, 1976
APPELLANTSushil Kumari
RESPONDENTPrem Kumar
BENCH /JUDGEHonorable Justice A. B. Rohatgi
STATUTES/ CONSTITUION INVOLVEDThe Hindu Marriage Act 1955and Transfer of Property Act, 1882
IMPORTANT SECTIONS/ ARTICLES Section 9, 10 ,23 of HMA and Section 13 of TPA  

ABSTRACT

One of the basic requirement or necessity of the marriage is that the husband and wife must live together and they should respect each other’s mutual rights. Marriage binds two persons with the certain obligations that cannot be ignored because both are devoted to each other. Right to society exists in only marital relationship and conjugal rights signifies two generally two ideas which are the right to have each other’s society and the right to intercourse. Restitution of conjugal right is only positive remedy which strengthen the marriage under the Hindu Marriage Act 1955, while other reliefs may lead to weaken the marriage. This case defines that the restitution of conjugal rights cannot be taken if it does not show genuine concern and cannot the decree of restitution of conjugal rights cannot be taken on the mala fide intentions. This explains that restitution of conjugal rights is the fundamental rule of matrimonial law.

INTRODUCTION

In present case a decree of restitution of conjugal rights insinuates that the iniquitous party instructed to live with the aggrieved party. Restitution of conjugal right is only remedy to save the marriage on the front foot, this generally used when one of the spouses is not fulfilling basic requirement of marriage such as co-habitation or if they are having children so not taking care of them and left the house without any proper excuse then this decree can be granted. This remedy is not only available to Hindus but also to Muslims under their general law, under section 32 and 33 of Indian divorce act,1869 the Christians can take remedy and under Section 36 of the Parsi Marriage and Divorce Act, 1936 also Section 22 of Special Marriage Act, 1954 remedy is available irrespective of religion, caste. Interpretation of laws under Hindu Marriage Act remains always in question, it puts every layman into a dilemma and even sometimes Courts take into another route where parties don’t agree with the decisions which often gives rise to conflicts. Therefore, the provisions give equal rights to husband and wife the equity is maintained between them. In the case of Narayan Ganesh Dastane v. Sucheta Narayan Dastane, the husband contended about witnessing cruelty from wife, such instances can also be noticed so in whole sole the provisions bring equity between husband and wife.[2]

  • The Restitution of Conjugal Rights and its Origin

The meaning of term restitution of conjugal rights means to restore back the marital rights This decree can only be passed in case of valid marriages. It is a matrimonial remedy it is a positive remedy that it requires both the parties of the marriages to live together and cohabit. The complete meaning of this term is that when either the husband or wife withdraws from the society or circle of other party without any justification, then as per section 9 of the Hindu Marriage Act of 1955, the person that has been mistreated may apply a decree of restitution of conjugal rights to the district court and the court can proclaim this decree it is find that representations made in the petition are effective and there is no valid protection.

This principle has been originated from England, where is considered as property deal and wife is considered as man’s property. The remedy for restitution for conjugal rights owes its origin to the Ecclesiastical Courts of the West. Such courts by decree of restitution of conjugal rights compelled the recalcitrant spouse to discharge the due obligation towards the complaining spouse. Later in England, the remedy was recognized by the various Matrimonial Causes Acts passed from time to time. From England, these rights passed on to her various colonies onto which her Anglo-Saxon jurisprudence was grafted and India was no exception in this regard.  The provision was never a part of Hindu, Sikh, Muslim or Parsi Law, but the British imported it into India, through judicial pronouncements, thus in the absence of any statutory law, the Indian courts passed decrees for restitution of conjugal rights for all religious communities.[3] In India this principle introduced with a case of Moonshee Buzloor Vs Shumsoonissa Begum, where such actions were regarded as considerations for specific performance. Explanation: Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society. The restitution of conjugal rights is often regarded as a matrimonial remedy. The remedy of restitution of conjugal rights is a positive remedy that requires both parties to the marriage to live together and cohabit[4]. In Abdul Kadir vs Salima, the Allahabad High Court held that the decree of restitution of marriage should be based on the Principle of Muslim law and not on the basis of justice, equity and good conscience. The texts of Hindu Law recognized the principle, “let mutual fidelity continue until death”. Hindu Law enjoined on the spouses to have the society of each other while the old Hindu Law stressed on the wife’s implicit obedience to her husband, it did not lay down any procedure for compelling her to return to her husband against her will.[5]

  • Essential of Section -9:

Restitution of conjugal right When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

[Explanation. where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

There are essentials of the restitution of conjugal rights which are as follows.

  • There should be a valid marriage
  • Any of the spouse has withdrawn from the society of other spouse
  • Withdrawn from the society must be unreasonable.
  • The court should be convinced that the facts stated by the petitioner are true.
  • The court should be convinced that there is no legal ground exists to refuse the case.
  • Constitutional validity of section-9

There were a lot of debates in the parliament against and for including the provision for restoration of marital rights in Special Marriage Act of 1954 and The Hindu Marriage Act of 1955. Through various cases this can be discussed. In Sareetha Vs T. VenkataSubbaiah the Andhra Pradesh High Court challenged the constitutionality of marital restitution arguing that it violates Article 14 and Article 21 of the Constitution of India. The Court held Section 9 of The Hindu Marriage Act is unconstitutional because it denies the women right to freedom of their bodies use for procreation and evolution. The Constitution provides social measures to protect women’s rights, liberty and equality of opportunity. Later this judgment was overruled in the case Harvinder Kaur Vs Harmandir Singh Choudhary it was held by Justice A.B. Rohatgi addressed misconceptions about section-9 of the Hindu Marriage Act, 1955, he held that marriage in India is considered as an ancient and tradition which should be preserved. If any party withdraws without giving any valid reason from the society of other party, then a petition can be filed in the District Court. The court found that section 9 does not violate Article 21 as it aims to preserve marriage and promote cohabitation between married couples. Now further final judgment was given in this case which will be discussed further.

  • Limitations of restitution of conjugal rights:

Conjugal rights are not absolute they are subjected to certain limitations which are discussed as below.

  • The guilty spouse must wait for a year even if the decree of restitution of conjugal rights is rejected.
  • The divorce petition cannot be filed by the petitioner for return of restitution of conjugal rights.
  • The petition for the restitution of conjugal rights can be filed in the district court where petitioner or both parties resided together, therefore if a petitioner has moved to different state, then he/ she cannot file a petition in the court of that district.
  • The burden of proof lies on petitioner to prove that other spouse has withdrawn from society without any reason.

Hence restitution of conjugal rights are the rights which are created by the marriage, those are subjected to various essentiality and limitations, the restitution of conjugal rights can become a progressive theory of marriage which was also tried in this case which states that marriage is not made upon the ceremonies, but upon the autonomy of the two individuals.

FACTS OF THE CASE

The petitioner Sushil Kumari on 25th of February 1970 married to the respondent Prem Kumar they both lived together till July 15th, 1970, they both had salary of RS 400 and RS 450 as they both were lower division clerk. The husband contention was here was that on 16th July, 1970 the wife left his house in the morning for office purpose and she did not come back to his house in the evening as usual she used to come. Thereafter she never came back to her matrimonial homeW.

In February 1971, when both of the parties were living separately, they both get blessed with a baby girl, the wife was living with her mother and the daughter at that time was of 5 years old. On 13th July 1971, the husband a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of the conjugal rights, where the husband alleged that the wife left his house without any reasonable cause and against his consent and she was regularly refusing to come back after the husband made a lot of efforts.

The wife opposed the contention of the husband she opposed the said petition by the husband in the additional district judge she alleged that she was maltreated and beaten and turned out from her matrimonial house by her husband. She further contended that the anticipation of mistreatment made a reasonable cause that it will cause harm to her life or injurious to her to live with her husband. She also contended that the petition of husband is based on mala fide intention and husband had no intention to live with her.

On 30th January, 1974 the Trial Court held that without any reasonable or just cause the wife had left her matrimonial house and granted a decree of the restitution of conjugal right under Section 9 of the said act in the favor of the husband, on 8th February 1974, the husband filed a petition under Section 10 of the said act in the subordinate court for obtaining judicial separation. Aggrieved by the order of the Trial court, the wife filed an appeal in the High Court of Delhi in which there was the stay.

ISSUES BEFORE THE COURT

  • Whether the petition filed under Section 9 of the said Act is bona fide or mala fide?
  • Whether the respondent was honest for the court to approve an order of restitution of conjugal rights?

ARGUMENTS FROM THE PETITIONER SIDE

  • The petitioner contends that a series of distressing events, culminating in her forceful eviction from their shared residence, has led her to reasonably anticipate further harm and has rendered it injurious for her to continue living with her husband.
  • Firstly, it is crucial to acknowledge the petitioner’s claim of cruelty and maltreatment. Such conduct, as described by the petitioner, represents a clear violation of the sanctity and integrity of their marital relationship. The petitioner’s assertion that she has been subjected to cruel treatment by her husband deserves careful consideration and warrants protection under the law.
  • Furthermore, the petitioner’s account of being forcibly walked out of her own house highlights a distressing event that cannot be taken lightly. This action not only demonstrates a lack of respect for the petitioner’s rights and dignity but also creates an atmosphere of fear and apprehension. The petitioner’s reasonable anticipation of further harm stemming from such an incident is entirely justified, as it is natural for her to fear for her safety and well-being in the presence of a person who has previously demonstrated such behavior.
  • In light of these circumstances, it is evident that the petitioner’s plea to be freed from the burden of living with her husband is a reasonable one. The actions described by the petitioner, including the alleged cruelty and maltreatment, as well as her forced eviction from the marital home, collectively contribute to an environment that is detrimental to her physical and emotional well-being. It is a fundamental principle of justice that no individual should be compelled to endure such injurious circumstances within the confines of a marriage. The petitioner further contended that the previous appeal filed by the husband before the Trial Court was not genuine and was based on mala fide intention. The husband was having no genuine intention to cohabit with her.
  • Moreover, the petitioner argued that her husband often used to drink a lot and he used to come drunk and many times he along with a girl used to come to the house, she claimed that he used to snatch her salary and used to torture her for dowry.
  • The petitioner further argued that when she was turned out from her marital house, she was refused to provide 10,000 Rs from her father.
  • The learned counsel of the behalf of the petitioner argued that there was no evidence shown by the husband that he wanted his wife back to her matrimonial house. For this submission he relies on Sm. Reharani v Ashit,
  • The Petitioner argued that her husband used to accused her for having an illicit relations with the person named Lalit Nayyar after which it had become more difficult for her to move to her matrimonial house.
  • The petitioner argued that husband is of fickle minded that one side he is charging his wife for having illicit relation and on the other hand he wants his wife to come back. the petitioner’s reasonable anticipation of harm and considers it injurious for her to continue living with her husband. The court’s intervention and appropriate action in this matter will not only safeguard the petitioner’s rights but also uphold the principles of justice and equity that form the bedrock of our legal system.

ARGUMENTS FROM THE RESPONDENT SIDE

  • The counsel for the respondent argued that the wife has left the matrimonial house without any reasonable excuse or just reasons and does not want to come back.
  • The counsel argued that the petitioner had failed to mention the narrated acts of cruelty in her written statements.
  • Moreover, the respondent argued that on putting several efforts by the husband the petitioner was not prepared to come back to the matrimonial house. He argued that the petitioner asked to him to stay at her father’s home if he wants her company.
  • Learned counsel argued that the petitioner was failed to prove the allegations that the day on which the respondent pleaded that is 14th and 15th of July, the wife was ill and she was on medical leave. Even next day she didn’t attend the office because she was
  • The respondent argued that on the advice of her father and Lalit Nayyar, she is preparing not to get back to the petitioner’s house and continuously after putting so many efforts she is refusing to return back.

RELATED PROVISIONS

  • Section 9 of the Hindu Marriage Act, 1955

Restitution of conjugal right When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

[Explanation. where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.][6]

  • Section 23 of the Hindu Marriage Act,1955

Decree in proceedings (1) in any proceeding under this Act, whether defended or not, if the court is satisfied that

(a) Any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

(b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty, and

[(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and]

(c) The petition (not being a petition presented under section 11)] is not presented or prosecuted in collusion with the respondent, and

(d) There has not been any unnecessary or improper delay in instituting the proceeding, and

(e) There is no other legal ground, why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about reconciliation between the parties: [Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of section 13.]

 (3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the have due regard to the report.

(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.][7]

Section 10 of the Hindu Marriage Act,1955

Judicial separation.1[(1) Either party to a marriage, whether solemnised before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.]

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.[8]

Section 13 of the Transfer of Property Act, 1882

Transfer for benefit of unborn person. Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property. Illustration A transfers property of which he is the owner to B in trust for A and his intended wife successively for their lives, and, after the death of the survivor, for the eldest son of the intended marriage for life, and after his death for A’s second son. The interest so created for the benefit of the eldest son does not take effect, because it does not extend to the whole of A’s remaining interest in the property.[9]

JUDGMENT

The court observed that so long as the husband is proceeding with the petition for annulment of the marriage, the wife cannot attempt to comply with the order for restitution of conjugal rights and it is doubtful whether any sincere efforts have been made to do so. The husband petition of restitution of conjugal rights which has been granted by the Trial Court was set aside by the High Court and allowed the appeal.

Section 23 of the Hindu Marriage Act, 1955 says that the judge has to be satisfied on the possibilities of probabilities of matters occurred in clause (a) to (e) of this section. It is based on the court that if court is satisfied then the Court confers the power to pass a decree. The Court cited the case of Ishwar Chandra Ahluwalia Vs Pomilla Ahluwalia in this case after the passage of decree of restitution of conjugal rights, the husband filed a petition for nullifying of marriage under section 12(1) (c) of the Hindu Marriage Act. After expiration of the two years period from the date of passing of a decree for the restitution of conjugal rights and also after dismissal of the filed petition, the husband now filed a fresh petition under section 13 for dissolution of marriage on the ground of non- compliance of the decree by the wife.

The Court also referred to the case of Dastane Vs Dastane where 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[10]. In Mister Gurudev Kaur Vs Swarn Singh the court held that the order of the restitution of the conjugal rights can be refused if it becomes impossible for the two parties to live together.

The husband claimed the decree of restitution on the ground that his wife is having illicit sexual intercourse, he was prepared to take back his wife without any condition but he didn’t mention anywhere that he will forgive or forget the past or he is no more interested in old charges, The judge here stated that the husband choice of remedy was unfortunate. Instead for filing judicial separation, he should sued for restitution with best known reasons. Here the husband had to wait for 2 years to give chance to wife to join him and to obey a decree of restitution but the husband within 7 days of the passed decree he brought another case against her. By making such step he closed the door for himself,

In Gollins Vs Gollins, Lord Reid held that in order to evaluate the conduct of the parties the Judge must try to read the minds of the parties. In matrimonial case the judges are not concerned with the man, as they are in the case of negligence. They are dealing with the both man and woman for that they have to make the assumptions better.

Hence it is concluded that the decree of constitutional rights can not be taken for the granted , if any ulterior motives goes beyond preservation of marriage, then it is impossible to grant a decree because this would break the close or intimate relationship of the marriage and make carrying out obligations intolerable.

CONCLUSION

This case set an example to prevent the marriage in any situation as here we saw that the husband was not showing any effort to preserve his marriage as he filed the decree of judicial separation, The court keeping this in mind that concluded that the decree of restitution of conjugal right can only be granted if there is a positive motive shown by any of the party. Preservation of the marriage is the sole duty of the decree of the restitution of conjugal right. Which is the basic fundamental of the marriage. The Court here has given a finest decision by dismissing the decree as there was no genuine intention of husband present behind this.

A marriage between two people is a soul union or a sacred union where the interests of both the parties should be protected. The sacrosanctity of marriage can be preserved only when both the parties have equal right in all marital obligations. Unnecessarily intervention in matter of marriage can lead to time a time when a person has zero autonomy. It is unbelievable that hoe Apex court failed to recognize the dangerous unfair reality of women in India.

With the gradual understanding that there is need of interference of law in family matters and to protect the individual’s rights, there has been a lot of time when restitution of conjugal rights is criticized across the world like in United Kingdom, Australia, Ireland and South Africa. Now it is high time for India to abolish the restitution of conjugal rights because at present the restitution of conjugal right has lost its relevance and as society changes over time, the cases of violence and abuse are increasing so this section does not create the appropriate effect, initially it sought to have but it ends up doing harm than good. This is a blatant breach of the right to privacy it represents.

[1] B.A.LL.B. 4th SEMESTER AT VASUDEV COLLEGE OF LAW, LAMACHAUR, HALDWANI, UTTARAKHAND.

[2] Smt. Saroj Rani vs Sudarshan Kumar, https://lawtimesjournal.in/smt-saroj-rani-vs-sudarshan-kumar-chad (last visited June 25, 2023).

[3] Case Analysis of Smt. Saroj Rani Vs Sudarshan Kumar Chadha Air 1984,https://probono-india.in/Indian-Society/Paper/409_CASE%20ANALYSIS.docx (last visited June 25, 2023).

[4]  Restitution of Conjugal Rights,https://www.legalservicesindia.com/article/814/Restitution-of-Conjugal-R (last visited June 25 2023).

[5] Ibid.

[6] The Hindu Marriage Act, 1955, Section 9.

[7] The Hindu Marriage Act, 1955, Section 23.

[8] The Hindu Marriage Act, 1955, Section 10.

[9] The Transfer of Property Act, 1882, Section 13.

[10] Sushil Kumari Dang Vs Prem Kumar, https://www.simplekanoon.com/family-law/sushil-kumari-dang-vs-prem-kumar-dang-1452/#:~:text=The%20trial%20judge%20held%20that,in%20the%20Delhi%20High%20Court ( last visited June 29, 2023).

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