The Delhi High Court has held that a spouse who refuses to resume cohabitation following a decree for restitution of conjugal rights and simultaneously disputes the validity of the marriage is disentitled from obtaining a decree of divorce under Section 13(1A) of the Hindu Marriage Act, 1955. A Division Bench comprising Justice Vivek Chaudhary and Justice Renu Bhatnagar ruled that such conduct amounts to taking advantage of one’s own wrong under Section 23(1)(a) of the Hindu Marriage Act, 1955, thereby dismissing an appeal filed by a husband against a Family Court order refusing him divorce.
Background of the Case
The marriage between the parties was solemnized on February 20, 2008, at Arya Samaj Mandir, Yamuna Bazar, Delhi, according to Hindu rites and customs. No child was born from the wedlock. Following marital discord, the wife filed a complaint under Section 498A of the Indian Penal Code, 1860, on June 10, 2008.
In the same year, the wife filed a petition under Section 9 of the Hindu Marriage Act, 1955, seeking restitution of conjugal rights. On September 17, 2013, the Additional District Judge allowed her petition and passed a decree of restitution of conjugal rights in her favor.
As cohabitation was not resumed for over two years, the husband filed a petition on April 22, 2016, under Section 13(1A) read with Section 13(1)(ib) of the Hindu Marriage Act, 1955, seeking dissolution of the marriage. The Principal Judge, Family Courts, East District, Karkardooma Courts, Delhi, dismissed his divorce petition on May 2, 2018, holding that the husband was taking advantage of his own wrongs. Aggrieved by the dismissal, the husband appealed to the High Court.
Arguments of the Parties
Counsel for the appellant-husband argued that there was no valid marriage between the parties as the husband was under the influence of a sedative substance during the marriage ceremonies, rendering it voidable. It was contended that the wife had lived separately since September 17, 2013, without just cause and failed to make efforts to resume cohabitation despite obtaining a restitution decree. The husband asserted that under Section 13(1A) of the Hindu Marriage Act, 1955, either party can seek divorce if there is no resumption of conjugal rights for one year or more after a Section 9 decree. It was further submitted that since the husband regularly pays monthly maintenance of Rs. 10,000, he cannot be said to have committed any wrong under Section 23(1)(a) of the Act. The husband placed reliance on Supreme Court judgments, including Smt. Saroj Rani v. Sudarshan Kumar Chadha, T. Srinivasan v. T. Varalakshmi, and Hirachand Srinivas Managaonkar v. Sunanda.
Counsel for the respondent-wife opposed the appeal, contending that the wife was always willing to rejoin the husband’s company. It was argued that the husband had deserted her without sufficient cause. She explained that although she initiated execution proceedings for the Section 9 decree, she could not pursue them due to financial constraints, leading to their withdrawal. Relying on Hirachand Srinivas Managaonkar v. Sunanda, counsel argued that the Family Court rightly dismissed the divorce petition.
Court’s Analysis
The High Court first addressed the husband’s contention regarding the invalidity of the marriage due to alleged sedation. The Court noted that such allegations do not violate Section 5 of the Hindu Marriage Act, 1955, to make the marriage void under Section 11, but at most fall under Section 12(1)(c) for voidable marriages, which requires a petition for annulment within one year of discovering fraud. Furthermore, the Court noted that the issue of marriage validity was already raised and decided against the husband in the Section 9 proceedings, which had attained finality.
Examining the statutory scheme, the Court explained that Section 13(1A) does not confer an absolute right to obtain divorce. A conjoint reading of Section 13(1A) and Section 23(1)(a) of the Hindu Marriage Act, 1955, requires the court to satisfy itself that the petitioner is not taking advantage of their own wrong. Referring to the Supreme Court decision in Hirachand Srinivas Managaonkar v. Sunanda, the High Court highlighted:
“The object of sub-section (1-A) was merely to enlarge the right to apply for divorce and not to make it compulsive that a petition for divorce presented under sub-section (1-A) must be allowed on a mere proof that there was no cohabitation or restitution for the requisite period. The very language of Section 23 shows that it governs every proceeding under the Act and a duty is cast on the court to decree the relief sought only if the conditions mentioned in the sub-section are satisfied, and not otherwise.”
Upon examining the evidence, the Court observed that the husband admitted in cross-examination that he made no efforts to reconcile or bring his wife back after the Section 9 decree. Conversely, the wife deposed that she had made phone calls to him for reconciliation which went unanswered, stating in her evidence:
“4. I say that the deponent is still ready to live with the petitioner/husband without any condition of any type at any place where he intends to keep and maintain her.”
The Court also observed that during the wife’s execution proceedings for the Section 9 decree, the husband categorically refused to reside with her, prompting the executing court to issue attachment warrants.
Referencing the Supreme Court ruling in T. Srinivasan v. T. Varalakshmi, the High Court noted:
“These acts of the husband were positive wrongs amounting to “misconduct”, uncondonable for the purposes of Section 23(1)(a) of the Hindu Marriage Act, 1955. Hence, he was rightly denied relief under Section 13(1-A) of the said Act.”
The High Court rejected the husband’s reliance on Smt. Saroj Rani v. Sudarshan Kumar Chadha, holding it distinguishable because the husband in the present case continuously disputed the validity of the marriage while simultaneously seeking its dissolution. The Court observed that a party cannot approbate and reprobate simultaneously.
Addressing the argument on maintenance, the Court held that paying Rs. 10,000 monthly maintenance is a statutory obligation and compliance with court orders does not entitle a party to a divorce decree. Lastly, regarding the argument of an irretrievable breakdown of marriage, the Court clarified that a court of law cannot substitute sentiments for statutory compliance, as irretrievable breakdown is not a statutory ground by itself to grant a divorce under the Act.
Decision
Finding no perversity, illegality, or infirmity in the order of the Family Court, the High Court held that the husband’s conduct attracted the bar under Section 23(1)(a) of the Hindu Marriage Act, 1955. Consequently, the High Court dismissed the appeal along with all pending applications.
Case Title: Yash Khanna v. Bhawna
Case No.: MAT.APP.(F.C.) 252/2018
Bench: Justice Vivek Chaudhary, Justice Renu Bhatnagar
Date: August 18, 2026
