after restitution of conjugal rights order wife has not come back to husband home

Husband and wife are living separately from 2 years 5 months...2 years old son is risiding with wife... Husband files Restitution of conjugal rights against wife to come back to husband's home but wife dint attended the court so case has become ex parte....now husband can file divorce petition....will husband get divorce with out any alimony and maintenance.?


If the wife has not come back even after restitution of conjugal rights is allowed in favour of the husband then husband is entitled to a divorce. The wife may not be eligible for maintenance but the husband has to pay maintenance to his child.




You can move for a decree of divorce on the ground of desertion on the basis of judgment in your petition under section 9 of the Hindu Marriage Act, 1955.

Maintenance is the right of wife and child despite they did not participate/ contest proceeding.


The husband can file an application for divorce under Section 13(ib) of the Hindu Marriage Act,1955 which deals with divorce due to desertion for continuous two periods.

The burden of proving these essentials is on the petitioner(husband). In the present case, if the wife has no reasonable cause to desert the husband, there are great chances of divorce being granted.

There is a leading case of Lachman v. Meena, AIR 1964 SC 40, in this case, the wife left her husband's home and started living with her father. The husband filled application for divorce and the court held that wife has no reasonable ground for desertion so granted judicial separation on account of the wife’s desertion for two years.

Section 24 of The Hindu Marriage Act, 1955 deals with temporary maintenance during the pendency of proceedings. It can be claimed by either wife or husband on the ground that he/she has no independent income source for his/her maintenance or expenses of proceedings. The court will decide maintenance based on the income of the parties.

In the present case, there is no mention about income or financial condition of the parties but if the wife has no means of income and she can establish that she has no sufficient income support then she will be granted maintenance pendente lite depending on the income of petitioner. Moreover, as there is a son whose custody will be given to the mother (for the welfare of the child) will also be a factor in deciding maintenance. For the husband to claim maintenance pendente lite he has to prove if he is physically or mentally disable to earn a livelihood.

Section 25 of the act deals with permanent maintenance. It provides for the maintenance of either spouse who is not able to maintain herself/himself. It is immaterial if the wife was guilty of desertion or cruelty. In the case of Sunil Kumar Sharma v. Meera Sharma, AIR 2011 All 29, it was held that the wife cannot be refused maintenance on the fact that she deserted or guilty of cruelty. So, unless the petitioner (husband) cannot establish that wife can maintain herself she is entitled to maintenance. The maintenance will be decided based on the husband's income, social status of parties, respective needs. It is necessary to maintain that wife lives with dignity and comfort, not luxury. She is entitled to maintenance till death, re-marriage, or has not remained chaste.

Section 125 in The Code of Criminal Procedure, 1973 orders for maintenance of wife and children.

The wife must be maintained if she is unable to support herself subject to the condition in Section125(4) which states that the wife will not be entitled to allowance if she is living in adultery or if she refused to live with her husband without any just cause.

Minor children whether married or not must be maintained. So as the child in this scenario is minor, he must be maintained by his father. 


In the present case, the husband will have to maintain the wife under Section 24 and 25 of The Hindu Marriage Act, 1955. The fact that the wife deserted the husband does not matter while granting maintenance. So, the husband will have to maintain the child and the wife.




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