Non-cohabitation a Cause for Divorce: HC

Published: 29th September 2014 06:02 AM  |   Last Updated: 29th September 2014 06:02 AM   |  A+A-

HYDERABAD: The High Court ordered dissolution of a marriage by decree of divorce on the ground of non-cohabitation of the parties concerned within a period of one year from the date of decree of judicial separation.

“We are conscious of the fact that cohabitation does not necessarily mean only sexual contact between wife and husband, but as per Mulla’s Hindu Law, ‘cohabitation’ means living together as husband and wife,” the court observed.

As for facts of the case, petitioner A Venkata Ramanaiah, a government officer, married respondent Ch Lavanya, a school assistant in ZP High School, Nellore, in February 2003 and were blessed with a female child in March 2005. The petitioner is working at Hyderabad while the respondent is working at Nellore.

In 2008, he moved the Family Court, Nellore seeking the relief of dissolution of marriage between him and the respondent on the ground of cruelty. At the same time, she filed a petition seeking the relief of restitution of conjugal rights. In 2009, the Family Court dismissed both the pleas but granted the decree for judicial separation for a period of two years.

“If the respondent is granted the relief of restitution of conjugal rights and if such decree remains unexecuted for one year, it would be a ground for divorce. If divorce is granted to the petitioner as prayed for, the interest of their minor daughter will be jeopardised and her life will be in peril. If some time is given by granting judicial separation, good sense may prevail on them and the disputes in between them may be reconciled in due course enabling them to lead happy marital life. In the meantime, the respondent can make all her efforts to get herself transferred to Hyderabad where the petitioner is working or she having resigned her job can also join him. Similarly, the petitioner may change his idea of getting the respondent transferred to Hyderabad and allow her to continue her job in Nellore district and get himself transferred. Hence, to meet the ends of justice, the parties to this case are granted a decree for judicial separation for two years,” the Family Court said in its order. It also ordered maintenance amount of Rs 2,500 per month to the child of the appellant.

Aggrieved by the said order, she moved an appeal before the High Court. In 2013, the High Court dismissed the appeal and thus the decree of judicial separation has become final.

Her husband filed an appeal in the High Court in 2011 seeking dissolution of marriage on the ground that there was no resumption of cohabitation between the parties for a period of one year or upwards after passing the decree of judicial separation and also on the ground of cruelty.

After hearing both the sides and perusing the material on record and judgment of the trial court, a division bench comprising justices R Subhash Reddy and A Shankar Narayana felt convinced that it was a clear case where there was no cohabitation within a period of one year from the date of decree of judicial separation and, as such, the appellant was entitled to dissolution of marriage by way of decree of divorce.

“As it is not in dispute that for the last several years the parties having been living apart and having regard to the disputes between them, there is no hope of any reconciliation also. We are of the view that the reasoning of the lower court that there were no efforts from the side of appellant for cohabitation, by itself, is immaterial to negate the relief of decree of divorce as sought by the appellant,” the bench observed.

While allowing the appeal, the bench has set aside the order of the Family Court declaring that the appellant is entitled to the decree of divorce. The bench upheld the order of the lower court, saying that the monthly alimony of Rs 2,500 to the child is just and reasonable apart from the motherly care taken by the respondent.

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