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    Enforcement/Execution of Section 9

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    Unnati
    1) The document discusses the interplay between sections 9, 13(1-A)(ii), 23 of the Hindu Marriage Act and Orders 21 Rules 32 and 33 of the Code of Civil Procedure regarding the enforcement of decrees for restitution of conjugal rights. 2) It explains that Section 23(1)(a) prevents a party from taking advantage of their own wrongdoing, so a party whose conduct destroyed conjugal ties cannot seek divorce under Section 13(1-A)(ii). 3) The Supreme Court has harmoniously interpreted these provisions to mean conduct after the restitution decree is considered, not before, and the conduct must be serious misconduct to deny the entitled relief.

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    Enforcement/Execution of Section 9

    Uploaded by

    Unnati
    69 views24 pages
    1) The document discusses the interplay between sections 9, 13(1-A)(ii), 23 of the Hindu Marriage Act and Orders 21 Rules 32 and 33 of the Code of Civil Procedure regarding the enforcement of decrees for restitution of conjugal rights. 2) It explains that Section 23(1)(a) prevents a party from taking advantage of their own wrongdoing, so a party whose conduct destroyed conjugal ties cannot seek divorce under Section 13(1-A)(ii). 3) The Supreme Court has harmoniously interpreted these provisions to mean conduct after the restitution decree is considered, not before, and the conduct must be serious misconduct to deny the entitled relief.

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    RCR- Part-II

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    1) The document discusses the interplay between sections 9, 13(1-A)(ii), 23 of the Hindu Marriage Act and Orders 21 Rules 32 and 33 of the Code of Civil Procedure regarding the enforcement of decrees for restitution of conjugal rights. 2) It explains that Section 23(1)(a) prevents a party from taking advantage of their own wrongdoing, so a party whose conduct destroyed conjugal ties cannot seek divorce under Section 13(1-A)(ii). 3) The Supreme Court has harmoniously interpreted these provisions to mean conduct after the restitution decree is considered, not before, and the conduct must be serious misconduct to deny the entitled relief.

    Copyright:

    © All Rights Reserved
    Download as PPTX, PDF, TXT or read online from Scribd
    Download as pptx, pdf, or txt
    69 views24 pages

    Enforcement/Execution of Section 9

    Uploaded by

    Unnati
    1) The document discusses the interplay between sections 9, 13(1-A)(ii), 23 of the Hindu Marriage Act and Orders 21 Rules 32 and 33 of the Code of Civil Procedure regarding the enforcement of decrees for restitution of conjugal rights. 2) It explains that Section 23(1)(a) prevents a party from taking advantage of their own wrongdoing, so a party whose conduct destroyed conjugal ties cannot seek divorce under Section 13(1-A)(ii). 3) The Supreme Court has harmoniously interpreted these provisions to mean conduct after the restitution decree is considered, not before, and the conduct must be serious misconduct to deny the entitled relief.

    Copyright:

    © All Rights Reserved
    Download as PPTX, PDF, TXT or read online from Scribd
    Download as pptx, pdf, or txt
    of 24

    Enforcement/Execution

    of Section 9
    Connection between

    • Sec. 9, HMA
    • Sec. 13 (1-A) (ii), HMA
    • Sec. 23, HMA
    • Order 21 Rules 32 and 33 of the CPC
    An essential understanding

    Decree Any person in whose favour


    ●

    a decree has been passed…


    Holder

    Judgmen Any person against whom


    ●

    t Debtor a decree has been passed…


    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…]….
    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…..
    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 may be
    awarded compensation out of that at the
    discretion of the court.
    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.
    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.
    What does the provision entail…??
    If A has
    How can this
    abandoned
    be wife B
    possible…??
    Without any
    fault of B

    If cohabitation
    has not been
    resumed

    B files for
    restitution of
    conjugal rights
    After a lapse of
    a year either A
    or B can ask for The court
    divorce
    decrees it in
    favour of B
    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)
    What does the provision entail…??
    If A has
    Therefore, A beaten up B
    cannot be allowed
    to take advantage
    of his own wrong

    Due to this
    conduct of A; B
    has left home

    As A is the party
    that has done the
    matrimonial
    wrong
    Then in that case
    A cannot seek
    remedy of RCR
    In a way it appears…..
    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…??
    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
    Gajna Devi v. Purushottam Giri
    AIR 1977 Del 178

    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)
    Illustration of the Harmonious Construction by the Supreme Court
    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.
    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).
    The Supreme Court
    • The conduct of a party before the decree
    on the basis of which div. 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).
    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.
    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.
    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.
    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.
    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’ .

    ***

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