In a significant ruling, the Bombay High Court has upheld a Bandra family court's decision that permitted a husband to file a second petition for divorce against his wife. The court's judgment centered on the legal provision allowing divorce when cohabitation does not resume after a decree for restitution of conjugal rights.
The Legal Battle and Court's Rationale
Justice Manjusha Deshpande, presiding over the case, dismissed the wife's challenge to the family court's order. The judge stated that since the statute itself provides a remedy for the failure to resume cohabitation, she found no error in the family court's decision. The couple married in December 2011, and their legal disputes began when the husband first sought divorce in 2014.
The wife subsequently filed for restitution of conjugal rights. In July 2017, the family court dismissed the husband's initial divorce petition but allowed the wife's plea. It directed the husband to resume cohabitation within two months, an order he did not challenge.
Timeline of Enforcement and Subsequent Petition
In March 2018, the wife filed an execution petition to enforce the cohabitation order and sought maintenance. By January 2019, the family court allowed this plea and attached one-third of the husband's salary for non-compliance. Following a warrant of attachment in April 2019, the couple entered into consent terms where the husband volunteered to pay Rs 20,000 monthly.
Thereafter, the husband filed for divorce again. The wife challenged the maintainability of this second petition, but the family court rejected her application in November 2023, leading her to approach the High Court.
Key Legal Provision and Arguments
The case hinged on Section 13 (1A) (ii) of the Hindu Marriage Act. This section states that if there is no resumption of cohabitation for a period of one year or more after a decree of restitution of conjugal rights, either party can present a petition for dissolution of marriage.
The husband's advocate, Purva Naik, argued that once her client agreed to pay maintenance, the execution petition was disposed of, bringing finality to the restitution proceedings. She emphasized that the failure to resume cohabitation created a statutory right for the husband to file a fresh divorce petition.
Justice Deshpande addressed the wife's argument that the second petition was barred by res judicata (a matter already judged). The wife's advocate, Saroj Jadhav, contended it re-agitated the ground of cruelty already decided. The judge clarified that while an additional incident of cruelty was mentioned, the core ground for the subsequent petition was different—it arose by "operation of law" due to non-resumption of cohabitation.
She explained that the law provides a "cooling-off period" of one year, after which this right becomes available. Noting that the second divorce petition was filed two years after the July 2017 order, Justice Deshpande found the petition legally valid and dismissed the wife's challenge.
