Failure To Cohabit For A Year After Decree Of Restitution Of Conjugal Rights Entitles Decree Holder To Dissolution Of Marriage: Allahabad HC

While upholding a decree of dissolution of marriage for a couple who had lived separately for 40 years, the Allahabad High Court held that even if the husband had sought a decree for restitution of conjugal rights, upon failure to cohabit for a period of one year after the grant of such decree, the husband could seek dissolution of marriage.

Section 13 (1A) (ii) of the Hindu Marriage Act, 1955 provides for the grant of divorce if there has been no cohabitation after one year or upwards after the passing of the decree for restitution of conjugal rights.

The bench comprising Justice Saumitra Dayal Singh and Justice Donadi Ramesh held

“Section 13 (1A) (I) [sic] of the Hindu Marriage Act leaves no matter of doubt that a party, who may have been awarded decree of restitution of conjugal rights, may claim divorce if that decree is not given effect to or abided by their spouse.”

The parties were married in 1979. In 1984, respondent-husband had filed a suit for restitution of conjugal rights which was ex-parte decreed in his favour. Upon failure to cohabit for more than one year, the Family Court passed an order dissolving the marriage between the parties.

Challenging the order of dissolution of marriage, counsel for the appellant submitted that the parties had cohabited during Diwali, 1984. In support of the argument, it was stated that the appellant-wife had given Rs. 5000/- to her husband during Diwali. However, the said fact was controverted by the appellant's father in his statement.

The Court observed that respondent-husband had become entitled to a decree of dissolution of marriage since there was no cohabitation between the parties from 1984. Observing that both parties had lived separately for 40 years, the Court upheld the decision of the Family Court to dissolve the marriage between the parties.

Case Title: Smt. Maya Devi v. Bhura Lal [FIRST APPEAL No. - 808 of 2003]

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