In one case wherein the wife stayed away from her husband for 11 years, the Chhatisgarh High Court has allowed decree of divorce under Section 13(ib) of the Hindu Marriage Act, 1955.
The Division Bench of Justice Goutam Bhaduri and Justice Rajani Dubey observed that the wife wilflly deserted her husband for this long under the guise of 'auspicious time' as per custom and tradition and therefore allowed the husband to proceed with the Divorce.
Brief Facts of the Case
The appellant herein got married 11 years ago. After staying together for merely 12 days, the respondent-wife's family members came and took her away on the ground of some important work. Thereafter, she didn't return and as per the petition when he went to take his wife back to join his company, she refused citing 'time being not auspicious as per custom and tradition'.
It was further alleged that thereafter the respondent/ wife did not volunteer to join her husband back at any point of time. Subsequently, the appellant/husband filed a suit for restitution of conjugal rights, which was decreed exparte.
The respondent-wife contended that she was ready and willing to join the company of the husband but the husband didn't turn back to get her back when auspicious time started, which is according to their custom was necessary one. Thereafter, the husband didn't make any effort to get her back. It is further contended that though the notice to the application for restitution of conjugal rights was received by the respondent/wife but she couldn't appear before the Court, as she was stuck in discharge of the Govt. official duties. It is further contended on behalf of the wife that she had not deserted the appellant/husband but infact the appellant/ husband failed to take her back as per the prevailing custom.
High Court Observation
The trial Court observed while dismissing the suit that the husband has failed proved the ground of desertion and further even after getting a decree for restitution of conjugal rights, since it was not put to execution; therefore, the intention of the husband was not to resume and restore the family and consequently would not be entitled for any decree of divorce.
The High Court on the other hand, disagreed with the above view and noted that no conversation either by way of exchange of letter or any telephonic talk ever took place in between the husband and wife and this facts would suggest that the wife contributed more to restrain herself from the company of the husband on that pretext.
The Court stated:
"The auspicious time are meant for the happy family life; instead in the instant matter, as appears that in name of auspicious time (subh-muharat) was used as a tool barrier by wife to start their matrimonial home"
The Court found the agruement that the restitution of conjugal rights decree was not put to execution, therefore, the ground under Section 13(1A) is not made, to be unsustainable.
"The statement of the wife would show that she was in know of the fact that the application for restitution of conjugal rights was filed by husband and despite the notice by the court, she refused to appear and even failed to make enquiry at any point of time that what happened to the application, which was to her interest. If she was aware of the fact that the application for restitution of conjugal rights is filed, even she was aware of the fact of effort made by husband, might have been certain constraint to appear on the date fixed on such application but had there been any intention to join back the company of the husband, she could have enquired and could have settled the issue."
The Court added that the respondent-wife kept sitting dormant despite knowing of the fact the effort made by the husband for restitution of conjugal rights and this atleast shows the intention of wife not to join back the company of husband. Even otherwise she could have joined the company of the husband without there being execution of decree the Court said.
With regard to customs, the Court siad there were only casual statements and nothing concrete to plead under the same.
"If the respondent/wife was so sanguine of the fact that in the circumstances and like nature of the case, the factum of auspicious moment would destroy her matrimonial home, she should have step forward which was done by the husband twice but was blocked by the wife."
The Court therefore opined that despite the effort taken by the husband to restore his matrimonial home, the wife was not cooperative and under the guise of auspicious time to return back, she continued at her maternal home. It was further observed that the wife after knowing the fact that the restitution of conjugal rights before the court could have joined the company of the husband, which would have otherwise solved the entire issue.
Accordingly, the appeal was allowed and along with decree of divorce under Section 13(ib) of the Hindu Marriage Act, 1955.
Read Judgement Here:
