[Hindu Marriage Act] Wife's Failure To Comply With Restitution Of Conjugal Rights Decree Ground For Divorce: Karnataka High Court

The Karnataka High Court has dissolved the marriage between a couple, as the wife did not join the company of the husband even after the trial court passed an order for restitution of conjugal on an application filed by the husband.

A division bench of Justice S R Krishna Kumar and Justice G Basavaraja allowed the appeal filed by the husband and set aside the order of the trial court rejecting his petition seeking divorce on grounds of desertion.

On going through the records the bench noted that the appellant/husband issued legal notice back in 2016 calling upon the respondent/wife to join him and since she did not do so, the appellant instituted a petition seeking restitution of conjugal rights. The said petition came to be allowed in favour of the appellant but the wife did not join him and as such, the appellant (husband) was constrained to institute the present petition (for divorce).

The bench observed “In the instant petition also, the respondent remained ex parte and did not contest the petition.”

Upon perusal of the material on record, court noted that the specific ground urged by the appellant for the purpose of seeking divorce was that the respondent had deserted him and was living separately from the year 2013 onwards. Further, despite obtaining an ex-parte decree for restitution of conjugal rights the respondent did not join the petitioner nor did she comply with the exparte judgment and decree, "which is sufficient ground for divorce within the meaning of Section 13(1A)(ii) of the Hindu Marriage Act, 1955,” Court said.

Thus it held,

“The respondent has not joined the appellant and there has not been any restitution of conjugal rights between the parties for more than a period of one year after decree which was passed on 05.12.2016. Under these circumstances, we are of the opinion that the Trial Court committed an error in dismissing the petition without appreciating the above aspects as well as the un-impeached, un-controverted and unchallenged pleadings and evidence of the appellant which constitute sufficient grounds to grant decree for divorce.”

Allowing the appeal the bench said, “The marriage solemnised between the appellant and the respondent on 12.06.2009 stands dissolved by a decree for divorce.”

Appearance: Advocates A.M. Gundawade and Sangamesh S Gulappanavar for appellant.

Citation: 2023 LiveLaw (Kar) 404

Case Title: XYZ And ABC

Case No: MISCELLANEOUS FIRST APPEAL NO. 104251 OF 2017

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