Court upheld a divorce petition based on one year of no cohabitation post-decree for restitution, emphasizing statutory non-advantage under the Hindu Marriage Act.

1. This is an appeal filed by the petitioner-husband challenging the judgment and decree passed by the learned Judge of Family Court, Aurangabad in petition No. 38 of 2001, dismissing the petition of petitioner-husband filed under Section 13 (1-A) (ii) of Hindu Marriage Act, 1955 (hereinafter for the sake of brevity referred to as the “said Act”), praying therein for dissolution of marriage by decree of divorce. (For the sake of convenience, hereinafter the parties shall be referred by their status before the Family Court i.e. “petitioner” and “respondent”).

2. Brief facts, giving raise to the present appeal, are as follows:-

a) The marriage between the petitioner-husband and respondent- wife was solemnized on 7.6.1983 according to Hindu rites and rituals. They have a son and a daughter out of their marital wedlock. Their marriage is still subsisting.

b) According to petitioner-petitioner-husband in the year 1988, respondent-wife on her own accord left the house of petitioner-husband with kids and started residing with her parents. Consequently, petitioner-husband was constrained to file petition for restitution of conjugal rights under Section 9 of said Act bearing H.M.P. No. 66 of 1989. On 17.8.1990, the learned C.J.S.D. was pleased to pass decree in favour of the petitioner-husband in the aforesaid proceeding of restitution of conjugal rights and directed respondent-wife to reside and cohabit with petitioner-husband. In the aforesaid proceeding, respondent-wife had appeared but failed to contest the petition which ultimately resulted into passing of exparte decree.

c) The petitioner-husband further contended that despite decree passed, respondent-wife did not resume for cohabitation. Therefore, in pursuance of decree passed in HMP No. 66 of 1989, as aforesaid, petitioner-husband had filed petition for dissolution of marriage under Section 13 (1-A) (ii) of the said Act, bearing No. 79 of 1991. However, the said petition came to be dismissed on the ground that respondent-wife’s application bearing MARJI No. 35 of 1991 for setting aside the exparte decree was pending. The court has observed that there is no finality of the decree passed for restitution of conjugal rights. On 16.7.1992, the learned IInd Joint C.J.S.D. was pleased to dismiss the said MARJI No. 35 of 1991 filed for setting aside the exparte decree.

d) Meanwhile, petitioner-husband being aggrieved by the judgment and decree passed in HMP No. 79 of 1991 dated 25.11.1991, preferred an appeal bearing Regular Civil Appeal No. 16 of 1992, which also came to be dismissed on the ground that the appeal against order passed in MARJI No. 35 of 1991 is pending.

The respondent-wife, who was aggrieved by the judgment and order passed in MARJI No. 35 of 1991, preferred an appeal, bearing MCA No. 177 of 1992. However, the said appeal came to be dismissed on 20.4.1996 by the Extra Joint District Judge, Aurangabad.

e) After dismissal of application bearing MARJI No. 35 of 1991, as aforesaid, respondent-wife preferred an appeal against the judgment and decree passed in HMP No. 66 of 1989 dated 17.8.1990 with separate application for condonation of delay. The learned Extra Joint District Judge, Aurangabad was pleased to dismiss the application for condonation of delay bearing MARJI No. 217 of 1992 dated 19.4.1997.

f) Being aggrieved by the judgment and order passed in MARJI No. 217 of 1992, dated 19.4.1997, respondent-wife preferred Civil Revision Application bearing No. 935 of 1997 before this Court. Initially, this Court was pleased to issue notice before admission a