The statutory provision allows for divorce if no restitution of conjugal rights occurs for over a year post-decree, validating the grounds for divorce.

JUDGMENT :

BIREN VAISHNAV, J.

1. This Appeal has been filed by the wife-appellant challenging the judgment and decree dated 29.06.2011 passed by the learned Family Court No.4, Ahmedabad. By the aforesaid judgment and Order, the Family Court allowed the Family Suit No.604 of 2004 filed by the respondent-husband preferred under Section 13(1-A)(ii) of the HINDU MARRIAGE ACT , 1955 (hereinafter referred to as ‘the Act’).

2. Heard Ms.Falguni Trivedi, learned counsel for the wife-appellant and Dr.Tapan Trivedi, learned counsel for the respondent-husband.

3. Brief facts narrated in the appeal are as under:-

3.1 The parties to this appeal got married on 11.10.1990. It appears that both parties filed applications for restitution of conjugal rights under Section 9 of the HINDU MARRIAGE ACT , 1955. The application filed by husband was numbered as Hindu Marriage Petition No.1433 of 2000 and the application filed by the wife is numbered as Hindu Marriage Petition No.1491 of 2000. Upon consolidation, both applications were decided by an order dated 30.09.2002, wherein the Trial Court allowed both the applications and directed the parties to reunite.

3.2 Thereafter, the respondent-husband filed Family Suit No.604 of 2004 under Section 13(1-A)(ii) of the Act, seeking a decree of divorce. Among the grounds raised in the petition for divorce under Section 13(1-A)(ii) of the Act, it was contended that the appellant was not willing to reside with the respondent and that she inflicted cruelty and that he therefore, requested the Family Court to grant a divorce.

3.3 The respondent-original applicant was examined through an Affidavit at Ex.31. In his deposition before the learned Family Court, he stated that the appellant, who was working in TV Serials and doing Stage shows, despite having a daughter and a son (twins) born on 07.05.1997, was unwilling to stay with the family at their residence, and would frequently move out of the household to places like Surat, Mumbai and even abroad.

3.4 It was the case of the husband that on 13.03.1999, the wife’s brother entered the house in a drunken condition, as a result of which, the husband- respondent herein was constrained to file a complaint before the police station on 14.03.1999. In the Cross- examination, he admitted that the family had shifted to new flat purchased by his father namely C/31, Om Villa, Near Om Tower, Shahibaug and that they continued to reside together till they separated on 18.03.1998.

3.5 The appellant’s mother-in-law- Gauriben Karsanbhai Parmar was examined at Ex.51. In her deposition, she stated that the appellant would often engage in quarrels and instigate her husband, misbehave, and show a preference for her career outside the household.

3.6 The appellant was examined at Ex.55. The family Court, after extensively referring to the evidence, judgments and records, and considering the provisions of Section 13(1-A)(ii) of the Act, found that, admittedly once a decree of restitution of conjugal rights had been passed on 30.09.2002, there was no restitution of conjugal rights until 28.11.2003, when they met at the wedding of the appellant’s sister. In light of this admitted position, the Family Court invoked the provisions of Section 13(1-A)(ii)

of the Act and passed the decree for divorce.

4. Ms.Falguni Trivedi, learned counsel for the appellant would vehemently contend that the judgment of the learned Family Court is erroneous, insofar as once a common order was passed for restitution of conjugal rights, the husband was equally bound to comply with the judgment and decree in the application for restitution under Section 9 of the Act. Ms.T