Divorce on Ground of Non-Resumption of Cohabitation Post-Restitution Decree Cannot Be Granted Solely on Passage of One Year, Court Emphasizes Bona Fide Efforts Under Hindu Marriage Act
In a significant judgment dated September 21, 2026, the Madhya Pradesh High Court (Division Bench, Gwalior) dismissed the appeal filed by Dinesh Kumar Prajapati seeking divorce from his wife, Smt. Mankunwar, under Section 13 of the Hindu Marriage Act, 1955. The decision reaffirms the legal principle that a decree for divorce on the ground of non-resumption of cohabitation following a decree for restitution of conjugal rights cannot be granted merely because one year has elapsed since the decree. Instead, the petitioner husband must establish that he made bona fide efforts to resume cohabitation and is not taking advantage of his own wrong, as mandated under Section 23(1)(a) of the Hindu Marriage Act.
Background facts reveal that the couple was married on June 9, 2011, but the respondent wife stayed with the appellant husband only intermittently before leaving for her parental home. Despite attempts by the appellant and his family to bring her back, she refused to resume cohabitation. The appellant then obtained a decree for restitution of conjugal rights under Section 9 of the Act on September 29, 2015, after which the wife did not join him. The husband subsequently filed a petition under Section 13(1A)(ii) for divorce, claiming one year had passed since the decree and cohabitation had not resumed.
However, the High Court upheld the trial court's decision rejecting the divorce petition, emphasizing that mere non-cohabitation for a year post-decree is insufficient to grant divorce. The court noted the absence of any evidence showing that the appellant had informed the respondent about the decree, initiated execution proceedings under Order 21 Rule 32 of the Civil Procedure Code, or made any genuine effort to bring her back. The Court reiterated the definition of "desertion" under the Explanation to Section 13(1), highlighting that desertion involves intentional abandonment without reasonable cause and with the intention to end cohabitation permanently.
Further, the Court relied on Section 23(1)(a), which mandates that courts should not grant relief if the petitioner is attempting to take advantage of their own wrong. Since the husband failed to prove he had a bona fide desire to continue the marriage and did not show any sincere attempts to resume marital life, the Court concluded that the divorce could not be granted on the present facts.
The Court also observed that even though the wife was proceeded ex parte for not accepting notice, the burden remained on the husband to prove entitlement to divorce. The lack of maintenance paid by the husband and the wife's allegations of cruelty in her written statement were considered relevant in assessing the genuineness of the husband's claim.
This judgment serves as an important precedent underscoring that the legal remedy of divorce on the ground of non-cohabitation after a decree of restitution of conjugal rights is not automatic. The petitioner must demonstrate active efforts to resume marital life and ensure that the relief sought is not a result of their own fault or neglect.
Bottom Line:
Hindu Marriage Act - Divorce on ground of non-resumption of cohabitation after decree for restitution of conjugal rights cannot be granted merely because one year has expired after such decree - Husband must prove bona fide efforts to resume cohabitation and that he is not taking advantage of his own wrong under Section 23(1)(a).
Statutory provision(s):
Hindu Marriage Act, 1955 Sections 9, 13(1), 13(1A)(ii), 23(1)(a); Order 21 Rule 32, Code of Civil Procedure (CPC)
Dinesh Kumar Prajapati v. Smt. Mankunwar, (MP)(DB)(Gwalior) : Law Finder Doc Id # 3004115
