Decree Of Divorce Can Be Sustained If No Cohabitation Occurs Between Parties For A Year After Grant Of Judicial Separation: Allahabad High Court

The Allahabad High Court has held that under Section 10 of the Hindu Marriage Act, 1955 if no cohabitation occurs between the parties in the year after the decree of restitution of conjugal rights or decree of judicial separation, the decree of separation would be upheld.

Parties married on 08.12.2001. Respondent-husband alleged that the appellant-wife deserted him in 2002. Since the appellant did not revive the matrimonial relationship between the parties, he initiated proceedings seeking restitution of his conjugal rights.

The wife filed a counterclaim and sought a decree of judicial separation. Subsequently, in 2006, the case instituted by the respondent-husband was dismissed and the decree of judicial separation prayed for by the appellant under Section 10 of the Act, was granted.

A year thereafter, the husband claimed that the parties had not cohabited whereas the wife claimed that they did. The Trial Court, believing the husband, granted a decree of divorce to the parties which was challenged by the appellant-wife before the High Court.

The Court observed that the Trial Court had held that there was no reason to doubt the submission of the husband that the parties did not cohabit and thus their marriage was not revived within a year from the decree of judicial separation. It was held that there was no evidence to establish that the marriage was revived at any point beyond 11.05.2006.

Further, as to the applicability of Section 13(1A) of the Act, the Court held that it would be contingent on the cohabitation by the parties, which had evidently not occurred.

“If no cohabitation arises within the statutory period specified there for, it becomes open to the affected party to apply for dissolution of marriage for reason of no cohabitation arising within the prescribed statutory period,” held the bench comprising of Justice Saumitra Dayal Singh and Justice Donadi Ramesh.

The Court found that during that period, no cohabitation had occurred between the parties and thus the decree of judicial separation granted was justified. Accordingly, the appeal filed by the wife was dismissed.

Case Title: Smt. Poonam v. Vinay Kumar Singh @ Pankaj [FIRST APPEAL No. - 37 of 2009]

Click Here To Read/Download Order