- PETITIONER: SMT. SAROJ RANI
- RESPONDENT: SUDARSHAN KUMAR CHADHA
- Bench: Mukharji, Sabyasachi (J)
- DATE OF JUDGMENT: 08/08/1984
- EQUIVALENT CITATIONS: 1984 AIR 1562, 1985 SCR (1) 303
- ACT:
- Constitution of India 1950, Articles 13, 14 and 21.
- Sections 9, 13 and 23(1) (a), Hindu Marriage Act1955
- Code of Civil Procedure 1908, Order 21, Rule 32-Decree for restitution of conjugal rights.
Facts
- The wife-appellant filed a suit against the husband respondent under Section 9 of the Hindu Marriage Act 1955, for restitution of conjugal rights.
- Though the respondent contested the petition contending that he had neither turned the appellant out from his house nor withdrawn from her society later as he made a statement in the Court that the application under Section 9 be granted; a consent decree was passed by the Sub-Judge for the restitution of conjugal rights between the parties.
- After a lapse of a year, the respondent-husband filed a petition under Section 13 of the Act against the appellant for divorce on the ground that though one year had lapsed from the date of passing the decree for restitution of conjugal rights no actual co-habitation had taken place between the parties.
- The appellant filed her reply contending that she was taken to the house of the husband by her parents one month after the decree and that the husband kept her in the house for two days and then she was again turned out. It was further alleged that an application under Section 28A filed in the Subordinate Court was pending.
Issue before the Hon’ble Court
- Whether husband entitled to the decree of Divorce or not..?
- Constitutionality of Section 9 of Hindu Marriage Act, 1955.
District Court held that:
The District Judge came to the conclusion that there had been no resumption of cohabitation between the parties and that in view of the provisions of Section 23 and in view of the fact that the previous decree was a consent decree and that at the time of the passing of the said decree, as there was no provision like Section 13B i.e. divorce by mutual consent’; held that as the decree for restitution of conjugal rights was passed by the consent of the parties, the husband was not entitled to a decree for divorce.
The respondent filed an appeal to the high court for the decree of divorce.
High Court held that:
A Single Judge of the High Court following the decision of this Court in Dharmendra Kumar v. Usha Kumari [1978] 1 SCR 315, held that it could not be said that the husband was taking advantage of his ‘wrongs’, but however expressed the view that the decree for restitution of conjugal rights could not be passed with the consent of the parties, and therefore being a collusive one disentitled the husband to a decree for divorce, and referred the matter to the Chief Justice for constitution of a Division Bench for consideration of the question.
Supreme Court held that:
A consent decree could not be termed to be a collusive, decree so as to disentitle the petitioner to a decree for restitution of conjugal rights, and that in view of the language of Section 23 if the Court had tried to make conciliation between the parties and conciliation had been ordered, the husband was not disentitled to get a decree. The appeal was allowed, and the husband granted a decree of divorce.
In the appeal to this Court it was contended on behalf of the wife appellant that : (a) in view of the expression ‘wrong’ in section 23(1) (a) of the Act, the husband was disentitled to get a decree for divorce, and (b) Section 9 of the Act was arbitrary and void as offending Article 14 of the Constitution. The hon’ble court dismissed the appeal and held that:
- The Supreme Court upheld the constitutionality of Section 9 by saying that it serves a social purpose as an aid to the prevention of break-up of the marriage.
- Section 9 of the Act is not violative of Article 14 or Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is understood in its proper perspective and if the method of execution in cases of disobedience is kept in view.
- Even after the final decree of divorce the husband would continue to pay maintenance to the wife until she remarries and would maintain the one living daughter of the marriage. Separate maintenance should be paid for the wife and the living daughter. Wife would be entitled to such maintenance only until she remarries and the daughter to her maintenance until she is married.
Until altered by appropriate order on application or proper materials, such maintenance should be Rs. 200 per month for the wife, and Rs. 300 per month for the daughter.
(Author: Rajat Kumar, pursuing B.Com LLB from Rayat Bahra University, Mohali.)
