A decree of divorce passed during the pendency of a husband's application for restitution of conjugal rights is not invalid, considering the facts and circumstances where all efforts for reconciliation failed due to the husband's neglect and cruel treatment.

In N. Varalakshmi v. N.V. Hanumantha Rao, the husband obtained a decree of judicial separation. The wife made several attempts to resume cohabitation, but the husband did not allow her to do so. After the completion of the statutory period, the husband petitioned for divorce on the grounds of non-resumption of cohabitation after the decree of judicial separation.

The wife argued that cohabitation could not be resumed because the husband did not allow her to do so, and that granting him a decree of divorce would amount to giving him an advantage for his own wrongdoing. The court rejected her plea and granted the decree of divorce, stating that the resumption of cohabitation had to be voluntary and mutual.

Similarly, in Pranjiwan v. Bai Dhirajban, the husband obtained a decree for restitution of conjugal rights, but the wife refused to comply with it. After the completion of the statutory period, the husband sued for divorce, and the wife contended that her husband did not invite her to live with him. Again, the court granted the divorce.

In Anil Jayantilal Vyas v. Sudhaben, the Gujarat High Court held that a defaulting spouse in a restitution case could be granted divorce since, in such cases, the marriage had broken down irretrievably.

The following observation in M. Someshwara v. Sudhaben is instructive:
"The policy of the law seems to be that if the period of reflection provided by the decree of judicial separation, namely one year, has not produced any reconciliation between the parties, it is fair to conclude that the marriage has broken down irretrievably. It is not in the public interest or conducive to the happiness of the spouses themselves to keep them tied by the technicalities of law when their minds are apart and refuse to unite.

Is the purpose of the Hindu Marriage Act to inflict suffering on unwilling spouses or to promote a hypocritical lifestyle by closing doors to respectability? The trend of the law is abundantly clear, especially when the legislature introduced Section 13B, giving recognition to a consensual divorce to end an unhappy marriage. The law has an objective, and any interpretation that frustrates it must be avoided."

However, some High Courts continue to strictly apply the provisions of Section 23(1)(a) of the Act to cases of marital breakdown.

In O.P. Mehra v. Saroj Mehra, the husband obtained a decree for restitution of conjugal rights under Section 9. About four and a half months after this decree, he sued the wife for divorce on the ground of her adultery. Then, one year after the decree of restitution, he filed a petition for divorce under Section 13(1A)(ii) on the grounds that the decree of restitution had remained uncomplied with for a year.

The Delhi High Court observed that no wife could have gone to live with her husband while a divorce petition on the ground of her adultery was pending in court. Since this constituted his wrongdoing, the husband could not benefit from it. The court distinguished its own Full Bench judgment in Ramkali v. Gopal and a single Bench judgment in Gajna Devi, regarding Section 13(1A).

End Notes:

1. Satya Sundar Tripathi v. Mamata Tripathi, AIR 2009 (NOC) 504 (Ori).
2. 1978 HLR 346: AIR 1978 AP 6.
3. 1977 HLR 398.
4. AIR 1978 Guj 74: 1978 Hindu LR 270: 1978 Mat LR 155: 19 Guj L1 4610/2024.

Written By: S Kundu & Associates
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