Restitution Decree Ignored for Over a Year: Patna High Court Grants Husband Divorce Under Section 13(1-A)(ii)

Case at a Glance

A husband obtained a decree for restitution of conjugal rights in 2018, but the wife did not return. His later divorce petition was dismissed by the Family Court, Aurangabad. On appeal, the Patna High Court held that under Section 13(1-A)(ii) of the Hindu Marriage Act, either spouse may seek divorce where there has been no restitution of conjugal rights for one year or more after a restitution decree. Finding that ground made out, it set aside the dismissal and dissolved the marriage.

Background

The parties married on 21 January 2014. The husband said the wife pressed him to live separately from his parents, which he refused. On 19 September 2015 he filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 (Matrimonial Case No. 136 of 2015). He brought the wife home on 25 May 2016, but on 28 May 2016 an FIR was lodged after an alleged assault on him, and the parties have lived apart since. The wife filed a case under Section 498A IPC and the Dowry Prohibition Act, and a maintenance application.

On 10 July 2018 the restitution petition was decreed in the husband's favour, but the wife did not return. The husband then filed Matrimonial Case No. 26 of 2020 for divorce. On 2 July 2024 the Principal Judge, Family Court, Aurangabad, dismissed it. The husband appealed.

The Question Before the Court

Is the husband entitled to divorce where there has been no restitution of conjugal rights for over a year after the restitution decree?

The Statutory Ground After a Restitution Decree

The Court noted the strained relationship between the parties, reflected in the criminal and maintenance proceedings. It confirmed that the husband's restitution petition was filed in 2015 and decreed in 2018. It then set out Section 13(1-A)(ii) of the Hindu Marriage Act, which allows either party to seek divorce on the ground that there has been no restitution of conjugal rights between them for one year or more after a decree for restitution.

The Court recorded that the wife had not shown that marital relations were restored after the decree. It held that the husband was entitled to divorce on this ground alone, and that the trial judge had failed to consider the relevant provision of law. The dismissal was therefore unsustainable. The Court allowed the appeal, set aside the Family Court's judgment and decree, dissolved the marriage, and directed the office to draw up the decree of divorce. No precedents are cited.

What the Court Held

• Section 13(1-A)(ii) permits divorce where there is no restitution for one year or more after a restitution decree.
• The restitution decree was passed in 2018 and the parties did not resume married life.
• The Family Court failed to consider the relevant provision of law.
• The appeal was allowed, the dismissal set aside, and the marriage dissolved.

Why It Matters

• A restitution decree that is not complied with can become a ground for divorce.
• Section 13(1-A)(ii) is available to either spouse, including the one who obtained the decree.
• Family Courts must consider every statutory ground made out on the facts.

For Litigants / For Counsel

Key Takeaways

• Divorce was granted under Section 13(1-A)(ii).
• The 2018 restitution decree was never complied with.
• The Family Court's dismissal was set aside.
• The decree of divorce is to be drawn up at the earliest.

FAQs

Conclusion

The Patna High Court applied a clear statutory ground that the Family Court had overlooked, ending a marriage in which a restitution decree had produced no reunion.

Practical takeaway: where a restitution decree goes unheeded for a year, Section 13(1-A)(ii) offers a straightforward route to divorce.