10 Jan 2022 4:24 PM GMT
Calling it a case of Desertion, the Chhattisgarh High Court recently granted a divorce decree in favor of a Husband, whose wife, under the guise of auspicious time (Shubh Muhurat) to return back to the matrimonial home, continued at her maternal home and refused to come back for 10 long years."If the respondent/wife was so sanguine of the fact that in the circumstances and like nature of...
Calling it a case of Desertion, the Chhattisgarh High Court recently granted a divorce decree in favor of a Husband, whose wife, under the guise of auspicious time (Shubh Muhurat) to return back to the matrimonial home, continued at her maternal home and refused to come back for 10 long years.
"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," noted the Court as it allowed the appeal of the Husband filed agaisnt the Family Court's order denying him divorce decree.
Importantly, the Bench of Justice Goutam Bhaduri and Justice Rajani Dubey ruled that in the facts of the case, the Husband was entitled to get a decree of divorce under Section 13(ib) of the Hindu Marriage Act, 1955.
It may be noted that Section 13(ib) of the HM Act lays out 'Disertion' as a ground of Divorce as it essentially speaks about the dissolution of marriage on the ground that a spouse has been deserted by wife/husband for a continuous period of not less than two years.
The case in brief
Essentially, the appellant (Husband) and respondent (Wife) got married on July 8, 2010, and they lived together until July 19, 2010, for about 11 days. Subsequently, the wife's family members came and took her away on the ground of some important work.
Thereafter, she did not return and when the husband tried to get her back on two occasions in 2010, she did not come back on the ground that an auspicious time (subh-muharat) was not there and 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 ex-parte. The wife claimed that the notice to the application for restitution of conjugal rights was received by the respondent/wife but she could not appear before the Court, as she was stuck in the discharge of the Govt. official duties.
Thereafter, the Husband moved to the Family court seeking a divorce decree, however, the petition was dismissed as the Court noted that husband has failed proved the ground of desertion.
The Court also observed that 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. Challenging the same, the Husband moved to the High Court
On the other hand, the wife contended that she was ready and willing to join the company of the husband but he did not turn back to get her back when auspicious time started, which is according to their custom was a necessity.
It was further contended by her that she had not deserted the appellant/husband and in fact, her husband failed to take her back as per the prevailing custom of Duviragaman. Therefore, no desertion on the part of the respondent was committed.
At the outset, the Court observed that it was clear from the statement of both the husband and the wife, that on the issue of the joining the company of the husband for want of auspicious time, the wife and the husband did not join the company of each other.
Further, the Court, while noting that the separation of the husband and wife was from July 19, 2010, and till date almost 11 years have passed, remarked thus:
"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 facts would suggest that the wife contributed more to restrain herself from the company of the husband on that pretext and there is no telephonic conversation or exchange of letter took place for more than 11 years in between the parties."
On the issue of the wife, not being able to appear for the RCR proceedings, the Court observed thus:
"...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."
Further, the Court was also of the view that simply sitting dormant despite knowing of the fact the effort made by the husband for restitution of conjugal rights, showed the intention of wife not to join back the company of husband.
Consequently, in the circumstances of this case, the Court came to the conclusion 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 is 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," the Court added is it allowed husband plea and ordered the dissolution of their marriage by a decree of divorce.
Case title - Santosh Singh v. Amita SinghCase Citation: 2022 LiveLaw (Chh) 1
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