I.

The plea is not maintainable

Section 13(1A) of HMA provides that either party can present a petition for dissolution of

marriage by a decree of divorce on grounds of (1) there has been no resumption of cohabitation

for a period of one year or more, after passing of a decree of judicial separation and (2) there

has been restitution of conjugal rights after passing of a decree for the same.

In light of this, I will be presenting my argument in two fold,

1. There was no alleged desertion by the Defendant

2. As a result, the decree of judicial separation must be rescinded

FRIST

A. First, there was no alleged desertion by the Defendant

In the case of Lachman Utamchand v. Meena Alias Mota, the Supreme Court held that

desertion is the intentional forsaking of any obligation of marriage and abandonment of one

spouse without reasonable excuse and without the consent of the deserted spouse. Furthermore,

desertion is considered to have occurred when factum of separation and animus deserendi co-

exist at one point.

Furthermore, the burden of proof for such alleged desertion lies upon the petitioner and such

proof must be established beyond reasonable doubt. Such desertion under Section 13(ib) must

have been for a continuous period of not less than 2 years. Furthermore, under Section 13(1A)

of the Hindu marriage act, 1955, it is necessary to prove that in order to present a petition for

the dissolution of marriage, there should have been no resumption of cohabitation between the

parties to the marriage

However, in the present case the actions of the Defendant i.e Sunita do not constitute as

desertion. While we acknowledge that within two months of their marriage, Sunita went back

home, however she returned and made ample effort to make the marriage work and stay

together. Furthermore, despite knowing about her husbands intent at the time of getting

married, she still continued to stay together and do everything for the marriage. However, none

of these actions were acknowledged by Rajiv and he did not make any attempt to reconcile and

sort out any issues. Moreover, over the course of 1 year there were multiple attempts at

reconciliations by Sunita and this does not surpass threshold of Section 13(1A).

B. As a result, the decree of judicial separation must be rescinded

Now, moving to my second prong, the judicial separation granted under Section 10 of HMA

requires either party to satisfy any of the 8 conditions provided under Section 13(1). However,

as proved earlier the actions of the defendant do not amount to desertion.

As a result, the defendant seeks to approach the Court under Section 10(2) of HMA, where

either party can file a petition to the Court for rescinding judicial separation if the Court is

satisfied of the truth of the statements and considers it just and reasonable to do so.

Hence, the judicial separation granted by the Court earlier should be rescinded in light of the

actions of the Petitioner.

II. Rajiv is taking Advantage of his wrong under Section 23(1)(A) of the HMA

In the case of Hirachand Srinivas Managoankar v. Sunanda, the Supreme Court held that

reasonable interpretation of the law does not lead to the conclusion that section 10(2) gives the

petitioner the right to obtain a divorce even though he has not tried to cohabitate with the
respondent and has even acted in a way to hinder any such attempt. This very judgement was

followed in the case of Prasant Kumar Pradhan v. Bharati Behera where the Court observed

that while the judicial separation is irrevocable, it is not final in the sense that it cannot be

reversed. As a result, every effort must be made by parties to preserve the sanctity of the

marriage before granting a divorce. Hence, despite abandoned attempts of cohabitation after

obtaining a decree of judicial separation, the divorce was not granted.

Similarly in casu the Court should ensure that before issuing a decree of divorce, the individual

must make an attempt to ensure that the Petitioner is not taking advantage of his own wrong

under Section 23 of HMA.

In the present case, the petitioner obtained the decree of judicial separation, post which the

Defendant made multiple attempts at reconciliation which were rebuffed. The petitioner

himself lacked the willingness to live up to his marital obligations and in response filed the

decree of judicial separation with a view of obtaining divorce ultimately, upon completion of

a period of one year. As a result, the actions of the Petitioner constitute as him attempting to

take advantage of a wrong under Section 23(1)(A) of HMA.

III. Sunita can claim restitution of conjugal rights under Section 9 and Section 23A

of HMA

A bare reading of Section 9 and Section 23A of HMA provide the defendant with the right to

claim restitution of conjugal rights as a relief in a counter claim in divorce. In light of this,

Sunita can claim restation on account of Desertion of the Petitioner i.e Rajiv through

withdrawal of the society of the Defendant without reasonable excuse. As per Sushila Bai v.

Prem Narayan Rai, the withdrawal from society constitutes as the refusal of one spouse to

continue with their matrimonial obligations and withdrawal is not necessarily from the place
but also from the particular state of affairs. Furthermore, the concept of reasonable excuse

cannot merely reduced to a formulae and would in fact vary as per the circumstances and

situations of the couple. While there are certain reasonable excuses provided by BM Gandhi

such as cruelty, adultery, desertion etc.

However in the present case, the actions of Rajiv constitute as withdrawal from the society of

the spouse without any reasonable excuse. The ground of desertion being not applicable has

been proved under argument 1 and hence the Court must take into account the general neglect

of Rajiv to carry out his matrimonial obligations. Rajiv has failed on multiple occasions to

reconcile with Sunita or sort out any differences in the marriage.

As a result, under Section 9 of the HMA, the aggreieved party has the right to contact the court

and request restitution of the conjugal rights when either the husband or the wife withdraws

from the society of the other party without a reasonable explanation. Hence, this claim of Sunita

should be entertained by the Family Court.