Husband's Failure To Seek Execution Of Decree For Restitution Of Conjugal Rights Does Not Forgo Wife's Act Of Desertion: Chhattisgarh HC

The Chhattisgarh High Court recently allowed the plea for divorce made by a husband after failure to persuade his wife to accompany him to the matrimonial home and her reluctance to join him even after passing of a decree in his favour under Section 9 of Hindu Marriage Act for restitution of conjugal rights.

A bench of Justices Goutam Bhaduri and Radhakishan Agrawal set aside an order of Family Court, which had refused to dissolve his marriage observing that it cannot be said that the wife deserted him when he himself did not take steps for enforcing the decree for restitution of conjugal rights.

The bench made it clear that the husband's failure to put the decree to execution does not forgo the wife's act of desertion. It observed,

"If the fact was known to the wife that husband even knocked the door of the Court to get back the company of the wife but even after that if she did not joined the company, prima facie, inference would be drawn that she did not want to join the company of the husband."

The parties got married in November 2013 but soon thereafter, the wife returned to her parental house and did not return. In 2015, the husband obtained a decree for restitution of conjugal rights but, in vain. The wife refused to reside with him on the ground of alleged dowry harassment.

Thereafter, the husband moved the family court seeking divorce on the ground of desertion.

The High Court observed that only "bald statements" were made with respect to dowry harassment. Moreover, when the wife, even after knowing that order of restitution of conjugal right has been passed, did not return to the matrimonial house, it would be a logical conclusion that she did not want join the company of her husband.

"Simply for the reason that the husband did not put into execution the decree of section 9 of the Act of 1955, the inference cannot be drawn that the husband actually did not want the company of the wife. On the contrary, the facts would show that the wife has deserted the husband prior to 2 years from the date of filing of the application of divorce."

Accordingly, the appeal was allowed.