Despite Obtaining Ex-Parte Decree For Restitution Of Conjugal Rights, Wife Did Not Join Her Husband & Did Not Comply With Judgment: Karnataka HC Grants Divorce
The Karnataka High Court, Dharwad Bench has granted divorce on the ground that despite obtaining ex-parte decree for restitution of conjugal rights, wife did not join her husband and not complied with the judgment.
The Court was deciding an appeal by the husband against the judgment and decree passed by the Senior Civil Judge & JMFC (Trial Court), whereby, the petition filed by the appellant/husband against the respondent/wife seeking dissolution of their marriage by a decree for divorce on the ground of desertion was dismissed by the Trial Court.
A Division Bench comprising Justice S.R. Krishna Kumar and Justice G. Basavaraja held, “A perusal of the undisputed material on record will indicate that the specific ground urged by the appellant for the purpose of seeking divorce was that the respondent had deserted him and was leaving separately from the year 2013 onwards. Further, despite obtaining an exparte decree for restitution of conjugal rights in M.C.No.33/2016, the respondent did not join the petitioner nor did she comply with the exparte judgment and decree which is sufficient ground for divorce within the meaning of Section 13(1A)(ii) of the Hindu Marriage Act, 1955.”
Advocates A.M. Gundawade and Sanhamesh S. Gulappanavar appeared on behalf of the appellant in this case.
Facts of the Case -
The appellant got married to the respondent in 2009 and from out of their wedlock, a male child was born who was in the custody of respondent/mother. In the first instance, the appellant/husband issued legal notice calling upon the respondent/wife to join him and since she did not do so, the he instituted an application seeking restitution of conjugal rights. By judgment and decree, the said petition was allowed in favour of the appellant against the respondent thereby granting a decree of restitution of conjugal rights exparte, directing respondent to join the appellant.
It was contended that despite the aforesaid judgment and decree for restitution of conjugal rights passed in favour of the appellant/husband against the respondent/wife, she did not join him and as such, the appellant was construed to institute the petition seeking divorce on the ground of desertion. In the instant petition also, the respondent remained exparte and did not contest the petition. The appellant examined himself witness and produced two documents in compromising of the marriage certificate and certified copy of the judgment and decree.
The High Court in view of the facts and circumstances of the case observed, “In the instant case, it is an undisputed fact that despite judgment and decree for restitution of conjugal rights having passed in favour of the appellant/husband against the respondent/wife on 05.12.2016, the respondent has not joined the appellant and there has not been any restitution of conjugal rights between the parties for more than a period of one year after decree which was passed on 05.12.2016.”
The Court noted that the Trial Court committed an error in dismissing the petition without appreciating the above aspects as well as the un-impeached, un-controverted and unchallenged pleadings and evidence of the appellant which constitute sufficient grounds to grant decree for divorce and as such, the impugned judgment and decree passed by the Trial Court deserves to be set aside and the petition filed for divorce deserves to be allowed.
Accordingly, the High Court allowed the appeal, set aside the judgment of the Trial Court, and granted divorce.
Cause Title- Bhimrao v. Santoshi (Neutral Citation: 2023:KHC-D:11396-DB)
