Friday, 28 December 2018

Whether husband is entitled to get divorce even if he has not filed application for execution of order of restitution of conjugal rights?

In Smt. Bimla Devi v. Singh Raj {MANU/PH/0030/1977 : AIR 1977 PH 167} Hon'ble Full Bench of the High Court of Punjab and Haryana has observed that the decree of restitution of conjugal rights has been passed in favour of husband against wife, it is wife who has not complied with the decree, due to which there is no restitution of conjugal rights as between them for more than two years, then, notwithstanding Section 23(1)(a), wife is entitled to dissolution of marriage.

24. In Radhakumari v. Dr. K.M.K. Nair {MANU/KE/0053/1988 : AIR 1988 Ker 235} Hon'ble Division Bench of the High Court of Kerala has observed that the failure on part of the husband in not enforcing the decree for restitution of conjugal rights, will not disentitle him from getting a decree for divorce under Section 13(1-A)(ii) of the Act if there was no resumption of cohabitation between the parties for a period of one year or more after passing of the decree for restitution of conjugal rights. As a matter of fact, the lower Court rightly held that there is no material in this case evidencing any conduct on the part of the appellant husband which would amount to a wrong within the meaning of Section 23(1)(a) of the Act, dis-entitling him to the relief of divorce.

25. In Dharmendra Kumar v. Usha Kumari {MANU/SC/0215/1977 : AIR 1977 SC 2218} the Hon'ble Supreme Court has observed that in order to be a 'wrong' within the meaning of Section 23(1)(a), the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled.

26. From the aforesaid judicial precedents in Smt. Bimla Devi (supra), Radhakumari (supra) and Dharmendra Kumar (supra) the legal position which emerges is that when the applicant gets the decree for the restitution of conjugal rights against the non-applicant, and applicant does not file execution of such judgment and decree, does not attempt to bring her back, does not comply with the aforesaid judgment and decree where the non-applicant is ready for the union, then applicant could not be deemed as to be wrongdoer and applicant would be entitled to get the decree of divorce under Section 13(1-A)(ii) of the Act of 1955 subject to the fulfillment of the conditions of this Section and other conditions of Section 23 of the Act of 1955. Similarly, if non-applicant does not comply such decree, non-applicant is not ready to lead conjugal life with the applicant, then non-applicant is also entitled to get decree of divorce under Section 13(1-A)(ii) of the Act of 1955 subject to the fulfillment of the conditions of this Section and other conditions of Section 23 of the Act of 1955. If there is no restitution of the conjugal rights for one year or upwards after passing of the decree of the restitution of conjugal rights, and other conditions of Section 23 of the Act of 1955 are fulfilled, then any of the parties would be entitled to get the decree of divorce irrespective of this fact who was not inclined to comply with the aforesaid decree.
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

First Appeal (M) No. 160 of 2016

Decided On: 01.05.2018

Sandeep Kumar Mishra  Vs.  Nikky


Hon'ble Judges/Coram:
T.B. Radhakrishnan, C.J. and Sharad Kumar Gupta, J.

Citation: AIR 2018(NOC) 926 Chh.
Read full judgment here: Click here
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