2. • Sec. 9, HMA
• Sec. 13 (1-A) (ii), HMA
• Sec. 23, HMA
• Order 21 Rules 32 and 33 of the CPC
Connection between
3. An essential understanding
• Any person in whose
favour a decree has
been passed…
Decree
Holder
• Any person against
whom a decree has
been passed…
Judgme
nt
Debtor
4. Order 21 Rule 32 of the CPC
• Decree for specific performance for restitution
of conjugal rights, or for an injunction.-
(1) Where the party against whom a decree for
the specific performance of a contract, or for
restitution of conjugal rights, or for an
injunction, has been passed, has had the
opportunity of obeying the decree and has
wilfully failed to obey it, the decree may be
enforced [in the case of restitution of conjugal
rights by the attachment of the property…]….
5. Order 21 Rule 33 of the CPC
• Discretion of Court in executing decree for
restitution of conjugal rights.-
(1) Notwithstanding anything in rule 32, the Court,
either at the time of passing a decree [against a
husband] for the restitution of conjugal rights or at
any time afterwards, may order that the decree
[shall be executed in the manner provided in this
rule]
(2) Where the Court has made an order under sub-
rule(1), it may order that, in the event of the decree
not being obeyed within such period as may be
fixed in this behalf, the judgment debtor shall
make to the decree-holder such periodical
payments as may be just…..
6. Order 21 Rules 32 and 33 of the
CPC
• Disobedience of decree enforced by
attachment of property.
• No civil imprisonment though.
• On obeying the decree, attachment will cease.
• Where the attachment order has remained in
force for one year, the property may be sold at
the request of the decree-holder, and he/she
may be awarded compensation out of that at
the discretion of the court.
7. Order 21 Rules 32 and 33 of the
CPC
• If the JD is the H, the court may order on
non-obedience, periodical payments of
money as may be just to the decree holder,
i.e. the wife.
• The order of periodical payment may be
altered by the court with respect to the
amount.
• It may be suspended or revived also.
8. Now, let us take a look at the
provisions of the Hindu Marriage
Act
9. Sec. 13 (1-A) (ii) of the Hindu
Marriage Act
• ‘Either party’ to a marriage, whether solemnized
before or after the commencement of this Act,
may also present a petition for the dissolution of
the marriage by a decree of divorce on the
ground-
(ii) that there has been no RCR as between the
parties to the marriage for a period of one year
or upwards after the passing of the decree for
RCR in a proceeding to which they were parties.
10. What does the provision entail…??
If A has
abandoned
wife B
Without
any fault
of B
B files for
restitution of
conjugal
rights
The court
decrees it
in favour
of B
After a lapse of
a year either A
or B can ask for
divorce
If
cohabitation
has not been
resumed
How can
this be
possible
…??
11. Sec- 23(1) (a) of the Hindu Marriage
Act
• No party shall take advantage of his/her
own wrong.
• Sec. 13 (1-A) does not confer an absolute
and unqualified right but subject to
restrictions contained in Sec 23 (1)(a)
12. If A has
beaten up
B
Due to this
conduct of
A; B has
left home
Then in
that case A
cannot seek
remedy of
RCR
As A is the
party that
has done the
matrimonial
wrong
Therefore, A
cannot be
allowed to
take
advantage of
his own
wrong
What does the provision
entail…??
14. So, what does the interplay of these
sections mean…??
• That wrong done by a party according to one
section (suspending the conjugal ties) is
getting relief in another section…??
or
• That because a party has done some wrong, he
shall not be permitted to take advantage of
that wrong…??
15. So, what is the scope and province
of Sec. 23 (1)(a) and Sec. 13
(1A)…?
THE COURT MUST STRIVE TO
CONSTRUE THE PROVISIONS
HARMONIOUSLY
16. HARMONY BETWEEN TWO PROVISIONS
Conduct before decree Conduct after
decree
Outside the scope of S.23(1)(a) Within the scope of
S.23(1)(a)
Gajna Devi v. Purushottam Giri
AIR 1977 Del 178
18. Dharmendra v. Usha Kumar
(1977) 4 SCC 12
• The W was granted RCR under Sec. 9
• After 2 yrs she petitioned for div.
u/s13(1A) (ii) on the ground that there has
been no cohabitation after the passing of a
decree to that effect.
• The H stated that the W herself refused to
receive or reply to the letters written by
him and did not respond to his efforts to
make her agree to live with him.
19. Dharmendra v. Usha Kumar
• The H states that if the divorce is granted
to her she would get the advantage of her
own wrong which is not permitted u/s 23
(1) (a).
20. The Supreme Court
• The conduct of a party before the decree
on the basis of which divorce is prayed for
u/s 13 (1A) is NOT relevant.
• The conduct AFTER the passing of the
decree is material to attract S.23 (1)(a).
21. The Supreme Court
• It further held that:
In order to be a ‘wrong’ within the meaning
of Sec. 23 (1)(a) the conduct alleged has to
be something more than a mere
disinclination to agree to an offer to
reunion; it must be misconduct serious
enough to justify denial of the relief to
which the H or the W is otherwise entitled.
22. Further understanding of the
principle
• If the decree-holder for RCR sits satisfied and he
neither approaches the judgment debtor nor files
execution proceedings, thinking or expecting that
it is now for the judgment debtor herself to make
efforts for Restitution, he is not guilty of a wrong
u/s 23(1)(a).
• If on the expiry of the statutory period, he asks for
div. on the ground of the non restitution, divorce
cannot be refused to him.
23. Further understanding of the
principle
In case the decree holder does something
due to which the judgment debtor is
debarred from approaching him for
reconciliation, his behavior amounts to a
wrong under Sec.23(1)(a) and disqualifies
him for divorce.
24. Kala Wati v. Atma Ram 1979
(P&H)
• H obtained RCR.
• Before compliance he re-married.
• Sought div. from the first wife u/s13 (1-A)
• The conduct was hit by Sec. 23 (1)(a) and
thereby a wrong.
• No divorce could be granted.
25. Therefore, in subtle words
• The legislature seemed to have
accepted Irretrievable
Breakdown of Marriage as a
ground of divorce by defining
the province of ‘matrimonial
wrong’ .
***
