Chhattisgarh High Court: The Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., held that the wife refusing to join the company of her husband in view of waiting for auspicious time, would amount to desertion.
An appeal was filed against the decision of the Family Court whereby the appellant preferred the petition seeking divorce on the ground of desertion was dismissed.
Husband and Wife lived together for 11 days and subsequently, the wife’s family members came and took her away on the ground of some important work. Thereafter, she did not return. Husband pleaded that he tried to get her back but the same was not acceded to on the ground that auspicious time (subh-muharat) was not there.
Further, it was alleged that respondent/wife did not volunteer to join her husband back at any point of time. Subsequently, the husband filed a suit for restitution of conjugal rights, which was decreed ex parte.
Trial Court observed that the husband failed to prove the ground of desertion and further even after getting a decree of 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 to any divorce decree.
Analysis, Decision and Law
High Court noted in view of the facts of the present matter that the wife contributed more to restrain herself from the company of the husband on that pretext and no telephonic conversation or exchange of letter took place for more than 11 years in between the parties.
Further, the Bench expressed that, simply sitting dormant despite knowing of the fact the effort made by the husband for restitution of conjugal rights atleast showed 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 the execution of the decree.
In Court’s opinion, if the wife was so sanguine of the fact that the factum of the auspicious moment would destroy her matrimonial home, she should have stepped forward which was done by the husband twice but was blocked by the wife.
Therefore, in the present case, despite efforts taken by the husband to restore the matrimonial home, wife did not cooperate and under the guise of auspicious time to return, she continued at her maternal home.
Hence, in view of the above discussion, the wife knowingly deserted the company of the husband, leading to the husband being entitled to get a decree of divorce under Section 13(ib) of the Hindu Marriage Act, 1955.
Lastly, the Court dissolved the marriage of the parties and allowed the appeal. [Santosh Singh v. Amita Singh, 2021 SCC OnLine Chh 3811, decided on 13-12-2021]
Advocates before the Court:
For Appellant: Mr Sourabh Sharma, Advocate
For Respondent: Mrs Renu Kochar, Advocate