Dharmendra Kumar V. Usha Kumar

Author: Vrushti Sanghavi, 1st year, LL.B, Jitendra Chauhan College of Law, Mumbai.
The article has been written by the author while pursuing the internship programme with us.


The Respondent, in this case, Mrs Usha Kumar, represented by S.L.Watel, C.R. Somasekharan, R.Watel and M.S.Ganesh was granted a decree of restitution of conjugal rights under Section 9 of The Hindu Marriage Act,1955[1]. But, there had been no cohabitation for more than 2 years. Later, the Respondent has filed for a Decree of Divorce against the Appellant, Mr Dharmendra Kumar, who was represented by Naunit Lal, R.K. Baweja and Miss Lalita Kohli. A decree of divorce had been granted to the wife based on Section 13(1A) (ii) of the Hindu Marriage Act, 1955. The Appellant filed for an appeal[2] against the decree of divorce in the Supreme Court of India.


In this appeal filed by the Appellant, Mr Dharmendra Kumar, he argued that the Respondent had not complied with the court’s order to restitution of conjugal rights and had taken the benefit of it. The restitution of conjugal rights states that “the guilty party has to stay with the aggrieved party to resolve their marriage by cohabitation for a period of time specified by law.”[3]While to have a better understanding of the appeal, the previous flow of the case has to be also understood.

On 27th August 1973, the Respondent was granted a decree of restitution of conjugal rights on her application by the Additional Senior Sub-Judge, Delhi. On 28th October 1975. The Respondent proceeded with a petition under S. 13(1A) (ii) of the Act[4] which asked for the dissolution of the marriage in the Court of Additional District Judge, Delhi. A decree of divorce was petitioned stating there had been no restitution of conjugal rights amongst the parties after the decree was passed. Although, as claimed by the Appellant, he had attempted to comply with the court’s order the Respondent had not replied to the letters and was making capital out of her own wrong which she was not entitled to do according to Section 23 (1) (a) of The Hindu Marriage Act, 1955. Therewith, the Appellant filed an appeal[5] to the Supreme Court of India to hold his ground and get justice.


Part I of this case deals with the Decree of Restitution of Conjugal Rights:

According to the Hindu Marriage Act of 1955, Section 9 “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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.”[6]In this application made by the Petitioner (wife), the Additional Senior Sub-Judge found that the application was valid and there was no legal ground to reject the application. Thus, a decree was granted to the wife that both the parties should cohabitate and try to resolve their marriage.

Part II of this case deals with a decree of divorce:

More than over the two years, the husband claimed that he wrote several registered letters to “invite” the petitioner to cohabitate and comply with the court orders before the wife had filed for a decree of divorce. There was an Amendment brought in Section 13 (1A) (ii)[7] to change the time period of 2 years of restitution of conjugal rights to 1 year. The objection taken is based on section 23 (1) (a) of the Act. The court granted a decree of divorce.

Part III deals with an appeal- made by the Petitioner (husband) to the High Court of Delhi regarding the dismissal of the decree of divorce which was not granted. Mr Dharmendra Kumar later appealed to The Supreme Court of India.


The court agreed to hear the filed appeal. The Appellant argued his case on two issues in the proceedings of this decree:

  •  The Petitioner pleaded that whether the Respondent had denied replying to the letters even after receiving them for the taking capital advantage for the purpose of relief.
  •  The subsequent issue raised by the Petitioner was that according to the new Amendment, the Petitioner of the restitution of conjugal right (in this case: the wife) could only file for a decree of divorce and still take advantage of the relief provided to them.


While the respondent argued the case on the following basis:

  •  The letters which the Appellant claims to have sent were never received by her. And the few that she had received were never ignored.
  •  There was no proof to the claims of the Appellant in the issue of taking undue advantage of the relief provided under the law and the decree of divorce provided by the court.


Whereas, both the arguments made by parties were substantial and focused on the loopholes of the law. The judgement delivered by J. Gupta laid out as follows:

  1.  The Petitioner (the wife) was entitled on her part to file a petition for a decree of divorce after there was no restitution of the conjugal rights followed.
  2.  Reference of Ram Kali vs. Gopal Das[8]was used in this judgement that mere non- compliance with the decree for restitution of conjugal rights could not result in a wrong within the meaning of Section 23 (1).
  3.  Another reference of Gajna Devi v. Purushotam Giri[9]was used in this judgement stating that if an exception was made for both the parties to file for divorce then the provision of section 13(1A) would practically be redundant.
  4.  On 27th August, 1973, the Court held that the application by Respondent (wife) was granted a decree of restitution of conjugal rights by the Additional Senior Sub-Judge, Delhi.
  5.  Even after not complying with the decree of restitution of conjugal rights, a little over the two years, The court had granted a decree of divorce to the wife was also upheld in the Supreme Court.

While the arguments and precedents were heard by the Court, J. Gupta dismissed the appeal on the basis that the Respondent was entitled to defy the decree of conjugal rights if she didn’t want to cohabitate with the Appellant. And to file for a decree of divorce was well within her rights. The “wrong” mentioned in the Act isn’t substantial for defying the decree. Thus, The appeal was dismissed and the Decree of Divorce was upheld.


I believe that the section of the Act preserves the right of many such innocent parties who even after being awarded the decree of restitution of conjugal rights choose to not cohabitate with the guilty party. Not making the decree a compulsion provides the innocent a safe room for them to stay. This judgement becomes an important landmark judgement and a torch bearer for further innocent parties. It points out that the legal system of India is fair and just to the affected humans. Marriage is a holy shastric Hindu concept to bring two humans together. And To directly break it wouldn’t seem just. Thus, the Restitution of conjugal rights provides the last chance for both parties to come together. And yet, if the innocent party isn’t satisfied. The doors of the court are always open to being just and truthful.


[1] The Hindu Marriage Act, 1955, Act No. 25, Act Of Parliament, 1955 (India).

[2] Dharmendra Kumar vs Usha Kumar, (1977) AIR 2218 (India).

[3]Paluck Sharma, Restitution of Conjugal Right a comparative study among Indian personal laws, Indian National Bar Association (Last Visited: 11th May 2020, 8:30 pm) https://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-personal-laws/

[4] Supra N. 1

[5] Ibid N. 2

[6]Supra N.1

[7] The Marriage Laws (Amendment) Act, 1976.

[8]Ram Kali vs. Gopal Das, 4 (1968) DLT 503 (India).

[9]Gajna Devi v. Purshotam Giri, AIR (1977) Delhi,178.

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