FAM No. 154 of 2015
DATE OF JUDGEMENT:
Hon'ble Mr. Justice Goutam Bhaduri
Hon'ble Mrs. Justice Rajani Dubey
Appellant: Santosh Singh
Respondent: Amita Singh
In the present case, the trial court had observed while dismissing the suit that the husband had failed to prove the ground of desertion and that even after receiving a decree for restitution of conjugal rights, it had not been carried out; thus, the husband's intention was not to resume and restore the family, and he would not be entitled to any divorce decree. Therefore, an appeal was filed against the decision and decree issued, which dismissed the appellant's petition for divorce on the grounds of desertion.
- The appellate married the respondent in July 2010 and, lived together for about 11 days before her family members came and took her away, claiming they had important work to do. On two separate times, her husband attempted to bring her, but she was rejected due to a lack of shubh muhurat.
- Singh then filed a suit for restitution of conjugal rights, which was decreed ex parte. The husband later petitioned the family court for a divorce based on desertion.
- In reply to the petition, the wife's counsel contended that it was customary between the two parties for the husband to come personally and take his wife during the 'Duviragaman' ritual.The wife claimed that she was ready and willing to join her husband, but that he failed to return to take her back when the auspicious time began, as was customary. The wife further submitted that she had not deserted her husband and that he had neglected to take her back as per their existing norm.According to the pandit and elders of the family, when the husband arrived to take her back, it was not an auspicious moment, and he was instructed to return at a specific auspicious time to take her back, but he failed to do so.
- The trial court noted in dismissing the suit that the husband had failed to prove the ground of desertion and that even though a decree for restitution of conjugal rights had been obtained, it had not been carried out; thus, the husband's intention was not to resume and restore the family, and he would not be entitled to any divorce decree. Challenging this the appellant “Santosh Singh” went to the High Court for appeal.
- The appellant's counsel argued that there was no evidence to draw any inferences from the fact that the husband (appellant) had not taken any steps to maintain his family life/matrimonial home. He wnet on to say that the wife's admission would demonstrate that she was aware that the husband had applied for restitution of conjugal rights and that the decree had been issued, but despite that, the wife made no effort to join the matrimonial life with the appellant. As a result, a divorce decree is required to be issued.
Whether the appellant is entitled to divorce on the ground of desertion by the respondent?
- The Hon'ble HC observed, based on the facts of the case, that it appeared that the wife used the excuse of an auspicious occasion to avoid her husband's company. The wife stayed inert even after discovering that her husband had applied for restitution of conjugal rights, according to the Court.
- If her claim of being on government duty was genuine, she could have discussed the matter with her husband outside of court and the whole situation would have been fixed.
- Further, the Court determined that the wife, under the cover of an auspicious occasion, refused to join her husband's company for ten years, which constituted desertion under section 13(1)(ib) of the Hindu Marriage Act and issueda decree of divorce.
In this case, the Chhattisgarh High Court construed section 13(1)(ib) of the Hindu Marriage Act, 1955, to say that the woman, knowing all the facts, has fled the husband's companionship. As a result, the appeal was granted, and the appellant was entitled to a divorce decree.
Click here to download the original copy of the judgement