Title: XYZ And ABC
Citation: MISCELLANEOUS FIRST APPEAL NO. 104251 OF 2017
Decided on: 29.09.2023
Coram: Justice S R Krishna Kumar and Justice G Basavaraja
Introduction
The Karnataka High Court in the present case took upon the view that a failure to comply with a decree for restitution of conjugal rights, is a ground for divorce. The division bench consisting of Justice S R Krishna Kumar and Justice G Basavaraja, further stated that the refusal of the wife to join the husband even after a decree of restitution of conjugal rights is sufficient ground for divorce within the meaning of Section 13(1A)(ii) of the Hindu Marriage Act, 1955.
Facts of the case
This appeal has been filed by the appellant/husband challenging the decree passed by the trial court, wherein his petition against respondent/wife seeking divorce on the ground of desertion was dismissed by the trial court.
The appellant was married to the respondent and issued a legal notice calling upon the respondent to join him, however, the respondent refused to join him. Upon which he instituted a petition for restitution of conjugal right. The said petition was decreed in favour of appellant ex parte, as the respondent did not appear before the court. Even after this decree, the respondent did not join the appellant due to which he instituted the present petition for divorce before the trial court. In the instant petition also, the respondent remained ex parte and did not contest the petition. Despite this, the trial court refused to grant divorce to the appellant. Aggrieved by this, the appellant approached this court.
Court’s observation and analysis
The High Court of Karnataka in the present case made the observation that the respondent had deserted the appellant and was living separately from the year 2013 onwards. Even after an ex parte decree for restitution of conjugal rights, the respondent did not join the appellant which is sufficient ground for divorce within the meaning of Section 13(1A)(ii) of the Hindu Marriage Act, 1955. Further, there has not been any restitution of conjugal rights between the parties for more than a period of one year after the decree was passed. Further the division bench consisting of Justice S R Krishna Kumar and Justice G Basavaraja, held 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.
Hence, the Karnataka High Court allowed the petition of the appellant and dissolved the marriage between the appellant and the respondent on the ground of desertion by the respondent.
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Written by- Amrita Rout
