The Madhya Pradesh High Court has upheld the rejection of a husband's divorce petition, observing that his failure to make any effort to bring his wife back after obtaining a decree for restitution of conjugal rights showed that he had no genuine desire to resume cohabitation. [2026 LiveLaw (MP) 432]

Emphasising that the husband could not be allowed to take advantage of his own wrong, the Division Bench of Justice G. S. Ahluwalia and Justice Anuradha Shukla observed,

"Section 23(1)(a) of the Hindu Marriage Act, 1955 provides that in any proceedings under the Act, decree can only be granted by the court if the ground for granting relief exists and if it is satisfied that the petitioner is not in any way taking advantage of his own wrong or disability for the purpose of such relief, and not otherwise. It is also for the husband to prove that he was not waiting for the statutory period to expire so that he could file a petition for divorce, but he must prove that in fact, he had no intention to bring the marriage to an end, and it is only on account of the hostile attitude of the spouse, he is entitled to divorce on account of non-cohabitation after the decree for restitution of conjugal rights was passed". 

A first appeal was filed by a husband challenging the decree of September 27, 2017, wherein his petition for grant of divorce was rejected. The wife has refused to accept notice, so she was treated as served. 

Per the facts, the husband filed a petition under Section 13 of Hindu Marriage Act against the wife seeking grant of divorce on the ground that despite passing of a decree for restitutional on conjugal rights under Section 9, the wife has not joined the company of the husband. Thus, he is not interested in keeping the respondent as his wife. 

The counsel for the husband argued that the couple got married on June 9, 2011, but the wife stayed with him for 4 days and thereafter went to reside in her parental home. 

The wife came back after 5-6 days of her stay and told the husband that she wants to reside at her parental home. Thereafter, she came to reside with the husband for 7-8 days and again on January 7, 2013 went to her parental home. The husband, his maternal uncle, and brother tried their best to bring his wife back to the matrimonial home, but she informed them that she did not want to reside with the husband. 

Thus, the husband obtained an ex parte decree under Section 9, restitution of conjugal rights, but even then the wife did not join the company of the husband. Thus, he filed an application under Section 28 of HMA for divorce, but the same was rejected. 

The court examined Section 13(1) of the Act, which defines desertion, and noted,

"Desertion means intentional and without any intention to return, deliberately abandoning the other without consent, without any valid reason and with the permanent intention to end the marriage". 

The bench noted that the wife, in her written statement, alleged that the husband used to treat her with cruelty as he demanded ₹1 Lakh and a motorcycle, and therefore she started residing in her paternal home. 

The bench noted that there was no evidence to show that the husband made any efforts to bring the wife back to the matrimonial house after the ex parte restitution decree was passed. The court noted the absence of evidence showing that the husband sent a copy of the ex parte decree to the wife, informing her about the same. 

Thus, under these circumstances, the bench concurred with the decision of the Trial Court to reject the application for divorce. 

While acknowledging that the wife did not participate in the proceedings, the bench emphasized, 

"once the court had directed the appellant to prove his case, then entire burden is on the appellant to prove that he is not trying to take advantage of his own fault". 

Accordingly, the bench upheld the impugned order and dismissed the appeal. 

For Appellant: Advocate Mohit Bhadoria