Delhi High Court Refuses Divorce to Husband Who Frustrated Wife’s Restitution Decree; Holds He Cannot Take Advantage of His Own Wrong Under HMA
Delhi High Court Upholds Family Court’s Refusal of Divorce; Husband Made No Reconciliation Effort While Wife Remained Ready to Resume Cohabitation
Facts
Yash Khanna and Bhawna were married on 20 February 2008 at Arya Samaj Mandir, Yamuna Bazar, Delhi, according to Hindu rites and customs. No child was born from the marriage.
Following matrimonial discord, the wife filed a complaint under Section 498A IPC against the husband and his family on 10 June 2008.
She also instituted proceedings under Section 9 of the Hindu Marriage Act, 1955, seeking restitution of conjugal rights. On 17 September 2013, the court allowed her petition and passed a restitution decree in her favour.
Despite the decree, cohabitation did not resume. After more than two years, the husband filed a divorce petition on 22 April 2016 under Section 13(1A) read with Section 13(1)(ib) HMA.
The Family Court dismissed his petition on 2 May 2018. The husband challenged that decision before the Delhi High Court.
Issues
The principal issues before the High Court were:
- Whether non-resumption of conjugal rights for the statutory period after a Section 9 decree automatically entitled the husband to divorce under Section 13(1A) HMA.
- Whether the husband’s own conduct in refusing to resume cohabitation constituted “taking advantage of his own wrong” under Section 23(1)(a) HMA.
- Whether the wife had failed to make genuine efforts to implement the restitution decree.
- Whether the husband could simultaneously dispute the validity of the marriage and seek dissolution of that same marriage.
- Whether regular payment of maintenance absolved the husband of the misconduct attributed to him.
- Whether the prolonged separation and alleged irretrievable breakdown of marriage independently justified divorce.
Petitioner’s Arguments
The husband first contended that there was no valid marriage because he had allegedly been under the influence of a sedative substance when the matrimonial ceremonies were performed.
He further argued that the wife had been living separately since 17 September 2013 without sufficient reason and had failed to effectively enforce the restitution decree obtained by her.
According to him, Section 13(1A) HMA permits either spouse to seek divorce once there has been no restitution of conjugal rights for one year or more after the decree. Therefore, the Family Court had wrongly denied him divorce despite the statutory period having elapsed.
He disputed the finding that he was taking advantage of his own wrong under Section 23(1)(a).
He also relied upon his regular payment of ₹10,000 per month as maintenance, arguing that this demonstrated compliance with his matrimonial obligations.
Finally, he submitted that the marriage had effectively broken down beyond repair and continuation of the legal relationship served no useful purpose.
Respondent’s Arguments
The wife maintained that she had always been ready and willing to resume matrimonial life with the husband.
She contended that it was the husband who had deserted her and forced her to institute proceedings under Section 9 HMA.
She had also instituted Execution Petition No. 223/2015 to enforce the restitution decree. According to the record, the husband categorically refused to join her during those proceedings, following which warrants of attachment were issued.
The wife stated that she had eventually withdrawn the execution proceedings because of financial constraints, not because she had abandoned her desire to resume cohabitation.
She therefore argued that the husband could not rely upon a state of non-cohabitation that had resulted from his own refusal to comply with the restitution decree.
Analysis of the Law
The High Court examined the interaction between Sections 13(1A) and 23(1)(a) of the Hindu Marriage Act.
Section 13(1A) permits either spouse to seek divorce where there has been no restitution of conjugal rights for at least one year after a decree for restitution.
However, the Court held that this right is not absolute.
Section 23(1)(a) applies to matrimonial proceedings generally and requires the Court to satisfy itself that the person seeking relief is not taking advantage of his or her own wrong.
Accordingly, the mere fact that the statutory period following a restitution decree has expired does not create an automatic or vested right to divorce.
The Court must examine why cohabitation did not resume and the conduct of the spouse seeking divorce.
The 1964 amendment introducing Section 13(1A) enlarged the class of persons entitled to seek divorce after a restitution or judicial-separation decree. It did not repeal or dilute the safeguard contained in Section 23.
Precedent Analysis
Hirachand Srinivas Managaonkar v. Sunanda
The Court placed significant reliance on Hirachand Srinivas Managaonkar v. Sunanda, (2001) 4 SCC 125.
The Supreme Court had rejected the proposition that Section 13(1A) creates an absolute right to divorce merely because the requisite period of non-cohabitation has passed.
Section 23 continues to govern such petitions. Therefore, matrimonial relief can be refused where the petitioner seeks to benefit from his own wrongful conduct.
T. Srinivasan v. T. Varalakshmi
The High Court found T. Srinivasan v. T. Varalakshmi, (1998) 3 SCC 112 particularly applicable.
There, a husband frustrated implementation of a restitution decree by refusing to allow his wife to return and subsequently sought divorce because restitution had not taken place.
The Supreme Court characterised such conduct as a positive wrong or misconduct falling within Section 23(1)(a), disentitling the husband from obtaining divorce under Section 13(1A).
Saroj Rani v. Sudarshan Kumar Chadha
The husband relied upon Smt. Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90.
The Delhi High Court distinguished that decision.
Unlike Saroj Rani, the present husband continued to challenge the very validity of the marriage, did not challenge the restitution decree passed against him, made no bona fide effort to resume matrimonial relations and resisted the wife’s attempt to execute the decree.
Dharmendra Kumar v. Usha Kumar
The appellant also relied upon Dharmendra Kumar v. Usha Kumar, (1977) 4 SCC 12 on the meaning of “wrong” under Section 23(1)(a).
However, the Court found that the husband’s conduct here went substantially beyond mere unwillingness or inactivity: he actively refused implementation of the restitution decree while later seeking to rely upon the resulting non-cohabitation to obtain divorce.
Court’s Reasoning
The High Court found that the evidence contradicted the husband’s assertion that the wife had failed to attempt reconciliation.
The husband admitted in cross-examination that he had made no effort to reconcile with or bring his wife back before filing the divorce petition.
Conversely, the wife testified that she repeatedly called him, remained willing to live with him and was even prepared to withdraw the pending litigations if he agreed to resume matrimonial life.
More importantly, the wife had actually instituted execution proceedings to enforce the restitution decree. The husband refused to join her during those proceedings, resulting in issuance of attachment warrants.
The Court therefore held that the husband’s assertion that the wife was responsible for continued separation deserved an adverse inference.
His conduct constituted the kind of “wrong” contemplated by Section 23(1)(a).
The Court also highlighted an important inconsistency in his litigation strategy.
On one hand, the husband repeatedly disputed the validity and even the existence of the marriage. On the other, he sought a decree dissolving that very marriage under Sections 13(1A) and 13(1)(ib).
The Court held that a party cannot approbate and reprobate simultaneously. This inconsistent litigation conduct further supported application of Section 23(1)(a).
His argument regarding maintenance was also rejected. Payment of court-ordered maintenance is a statutory obligation, not conduct that independently creates an entitlement to divorce.
Finally, the Court rejected the plea of irretrievable breakdown. Considerable passage of time could not substitute statutory requirements, particularly when the wife remained willing to continue the marriage.
Conclusion
The Delhi High Court held that non-resumption of conjugal rights for the statutory period after a Section 9 decree does not automatically entitle either spouse to divorce under Section 13(1A) HMA.
Such a petition remains subject to Section 23(1)(a), and a spouse cannot create or perpetuate non-cohabitation through his own wrongful conduct and subsequently rely upon that very non-cohabitation to obtain divorce.
In the present case, the wife had demonstrated willingness to resume matrimonial life and had even attempted to execute the restitution decree. The husband, on the other hand, refused to resume cohabitation, made no genuine reconciliation effort and continued disputing the validity of the marriage.
His conduct therefore constituted “taking advantage of his own wrong.”
Finding no perversity, illegality or infirmity in the Family Court’s decision, the High Court dismissed the husband’s appeal and upheld the refusal to grant divorce.
Case Details
Case: Yash Khanna v. Bhawna
Court: High Court of Delhi at New Delhi
Case Number: MAT.APP.(F.C.) 252/2018; CNR No. DLHC012681562018
Judge: Justice Vivek Chaudhary and Justice Renu Bhatnagar
Date: 18 August 2026; reserved on 29 April 2026
Result: Appeal dismissed; Family Court’s refusal of divorce upheld. Husband held disentitled to Section 13(1A) relief because his conduct amounted to taking advantage of his own wrong under Section 23(1)(a) HMA.
