Case Note & Summary
The appellant-husband, Arun Marathe, filed an appeal against the judgment and decree of the Family Court, Aurangabad, dismissing his petition for divorce under Section 13(1-A)(ii) of the Hindu Marriage Act, 1955. The marriage between the parties was solemnized on 7 June 1983, and they have a son and a daughter. According to the husband, the wife left the matrimonial home in 1988 with the children and started residing with her parents. Consequently, the husband filed a petition for restitution of conjugal rights under Section 9 of the Act, which was decreed ex parte on 17 August 1990. The husband contended that despite the decree, the wife did not resume cohabitation, and therefore, he filed a petition for divorce under Section 13(1-A)(ii) in 1991. The Family Court dismissed the petition, holding that the husband failed to prove that the wife had, without reasonable excuse, withdrawn from his society. The High Court, in appeal, examined the evidence and found that the wife had reasonable grounds for not resuming cohabitation, including allegations of cruelty and harassment by the husband. The court noted that the wife had expressed willingness to live with the husband but was prevented by his conduct. The court also observed that the husband had not made sincere efforts to implement the restitution decree. The High Court upheld the Family Court's decision, dismissing the appeal and confirming that the husband was not entitled to a divorce under Section 13(1-A)(ii) as the wife had reasonable excuse for non-compliance with the restitution decree.
Headnote
A) Hindu Marriage Act - Divorce - Section 13(1-A)(ii) - Non-compliance with restitution decree - The petitioner-husband sought divorce on the ground that the respondent-wife failed to resume cohabitation after a decree for restitution of conjugal rights. The Family Court dismissed the petition. The High Court upheld the dismissal, holding that the mere fact of non-compliance with the restitution decree does not automatically entitle the petitioner to divorce; the petitioner must also prove that the respondent-wife has, without reasonable excuse, withdrawn from the society of the petitioner. The court found that the respondent-wife had reasonable grounds for not resuming cohabitation due to the petitioner's conduct. (Paras 1-10) B) Hindu Marriage Act - Restitution of Conjugal Rights - Section 9 - Decree - The court noted that the decree for restitution of conjugal rights was passed ex parte and the respondent-wife had not contested it. However, the court emphasized that the subsequent divorce petition under Section 13(1-A)(ii) requires independent consideration of the circumstances, including the conduct of both parties. (Paras 2-5) C) Evidence - Burden of Proof - Divorce - The court held that the burden lies on the petitioner to prove that the respondent-wife has, without reasonable excuse, failed to comply with the restitution decree. The petitioner failed to discharge this burden as the evidence showed that the respondent-wife was willing to resume cohabitation but was prevented by the petitioner's behavior. (Paras 6-9)
Issue of Consideration
Whether the petitioner-husband is entitled to a decree of divorce under Section 13(1-A)(ii) of the Hindu Marriage Act, 1955 on the ground that there has been no resumption of cohabitation between the parties for a period of one year or more after the passing of a decree for restitution of conjugal rights.
Final Decision
Appeal dismissed. Judgment and decree of Family Court, Aurangabad dated 15.09.2014 in Petition No. 38 of 2001 is confirmed. No order as to costs.
Law Points
- Section 13(1-A)(ii) Hindu Marriage Act
- 1955
- Restitution of conjugal rights
- Divorce
- Non-compliance with decree
- Burden of proof
- Cruelty
- Desertion
