Parties Have Been Living Separately For 40 Years And Are More Than 60 Years Old: Allahabad HC Dismisses Wife's Appeal Against Divorce Decree Of 1986
|The Allahabad High Court has held that a husband is entitled to claim for dissolution of marriage upon failure of cohabitation by the wife for a period of one year after the grant of decree of restitution of conjugal rights.
The Court refused to interfere with the decision of the District Court delivered in the year 1986, which had dissolved the marriage between the parties observing that the decree for restitution of conjugal rights was passed in the year 1984 and the parties had been living separately for a long period of 40 years since then.
A Division Bench of Justice Saumitra Dayal Singh and Justice Donadi Ramesh observed, “Section 13 (1A) (i) of the Hindu Marriage Act leaves no matter of doubt that a party, who may have been awarded decree of restitution of conjugal rights, may claim divorce if that decree is not given effect to or abided by their spouse. Thus, upon failure of cohabitation for a period of one year after grant of decree of restitution of conjugal rights, the respondent was entitled to dissolution of the marriage.”
Advocate V.C. Katiyar appeared for the appellant, while Advocate A.D. Prabhakar represented the respondent.
The wife had filed an appeal under Section 96 of the CPC read with Section 29 of the Hindu Marriage Act (HMA) to challenge the order passed by the District Court, whereby the Court dissolved the marriage between the parties.
The husband had instituted a suit seeking restitution of conjugal rights in 1984. The same was decreed, though ex parte. However, despite the expiry of one year, the wife did not agree to cohabitation. Thus, the Court dissolved the marriage between the parties since the matrimonial relationship between the parties remained broken for more than the statutory period of one year, after the grant of decree of restitution of conjugal rights.
The High Court explained that once it was established that cohabitation between the parties was not revived for more than one year, the husband became entitled to claim dissolution of marriage.
“We are also mindful of the fact that the parties were married in the year 1979. The decree for restitution of conjugal rights was passed on 18.9.1984. The parties have been living separately i.e. for a long period of 40 years since then. At present both would be more than 60 years of age,” the Court remarked.
The Bench noted that the District Court had not made any provision for award of permanent alimony to the wife. “Keeping in mind the age of the parties and facts disclosed in the supplementary affidavits, permanent alimony of Rs. 10 Lacs is awarded to the appellant. Thus, the marriage between the parties is dissolved, subject to payment of Rs. 10 Lacs by way of permanent alimony within a period of three months from today,” the Court stated.
Consequently, the Court held, “In view of the above fact also we find no good ground to interfere with the judgment and order of the Court below to the extent it has dissolved the marriage between the parties.”
Accordingly, the High Court partly allowed the appeal.
Cause Title: M v. B (Neutral Citation: - 2024:AHC:121886-DB)
Appearance:
Appellant: Advocates V.C. Katiyar, Krishna Datta Tiwari, Rameshwar Singh Kushwaha, Rohit Sharan Tomar and Virendra Kumar Singh
Respondent: Advocates A.D. Prabhakar and Mohit Bihari Mathur