Source: Karnataka High Court

Why in News?

Recently, the High Court of Karnataka in the case of XYZ And ABC, held that the wife's failure to comply with restitution of conjugal rights decree is a ground for divorce.

What was the Background of XYZ and ABC case?

• The appellant got married to the respondent on 12^th June 2009 and a male child Aditya was born on 10^th August 2011 who is presently in the custody of respondent/mother.
• The respondent had deserted the appellant and has been living separately from the year 2013.
• The appellant/husband issued legal notice on 3^rd August 2016 calling upon the respondent/wife to join him and since she did not do so, the appellant instituted a petition before the Trial Court seeking restitution of conjugal rights.
• A decree of restitution of conjugal rights was granted by the Trial Court directing the respondent to join the appellant.
• Despite the aforesaid judgment and decree for restitution of conjugal rights passed in favor of the appellant, the respondent did not join him.
• Aggrieved by the same, the appellant filed an appeal before the Karnataka High Court, seeking divorce on the grounds of desertion.
• The impugned judgment and decree of the Trial Court was set aside by the High Court of Karnataka and the marriage solemnized between the appellant and the respondent was dissolved by a decree for divorce.

What were the Court’s Observations?

• A bench of Justices S R Krishna Kumar and G Basavaraja observed that 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 the decree was passed.
• The Court further held that under these circumstances, we are of the opinion 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.

What are the Legal Provisions Involved in It?

Restitution of Conjugal Rights

• The expression restitution of conjugal rights means the restoration of conjugal rights which were enjoyed by the parties previously.
• Its objective is to protect the sanctity and legality of the institution of marriage.
• Section 9 of the Hindu Marriage Act, 1955 (HMA) deals with the restitution of conjugal rights. It states that -
  • When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
  • Explanation —Where a question arises whether there has been reasonable excuse for withdrawal from society, the burden of proving reasonable excuse shall be on the person who has withdrawn from society.
• In the case of Saroj Rani v. Sudarshan Kumar Chadha (1984), the Supreme Court upheld the constitutional validity of Section 9 of HMA as this section does not violate any fundamental right.

Divorce

• Divorce means the dissolution of marriage by a competent court.
• Section 13 of the HMA Act deals with the provisions of divorce.
• According to Section 13(1) of the Act, any marriage, whether solemnized before or after the commencement of this Act, may be dissolved by a decree of divorce upon presentation of a petition by either the husband or the wife on the following grounds:
  • Adultery
  • Cruelty
  • Desertion
  • Conversion
  • Mental disorder
  • Virulent and incurable leprosy
  • Renunciation of the world
  • Presumption of death
• Section 13B provides for divorce by mutual consent.