Bombay high court upholds Mumbai family court order rejecting woman’s challenge to husband’s second divorce petition for non-resumption of cohabitation | Mumbai News

Mumbai: The Bombay high court has upheld Bandra family court’s order that rejected a woman’s challenge to a second divorce petition filed by her husband for non-resumption of cohabitation under the Hindu Marriage Act.“Since the statute itself provides for a remedy due to failure of resumption of cohabitation…I do not find any error committed by the judge, family court, while passing the order, hence no interference is warranted,” said Justice Manjusha Deshpande on Thursday.The couple married in Dec 2011. The husband filed for divorce in 2014. The wife later filed for restitution of conjugal rights. In July 2017, the husband’s petition was dismissed, while her plea was allowed. He was directed to resume cohabitation within two months. He did not challenge the order. The wife, in March 2018, filed an execution petition for compliance of the order and also for maintenance. In Jan 2019, the family court allowed her execution plea, attached one-third of his salary till further orders for non-compliance of restitution of conjugal rights. Following warrant of attachment, in April 2019, they entered consent terms and the husband volunteered to pay her Rs 20,000 monthly. Thereafter the husband again filed for divorce. In Nov 2023, the family court rejected the wife’s application challenging its maintainability. She moved the HC.Section 13 (1A) (ii) of the Hindu Marriage Act provides that if there is no resumption of cohabitation between the parties for a period of one year or more after decree of restitution of conjugal rights, either can present a petition for dissolution of marriage. The husband’s advocate, Purva Naik, said as his client agreed to pay maintenance, the execution petition was disposed of. As a result, the proceedings for restitution of conjugal rights attained finality and cannot be agitated again. Pointing out that failure to resume cohabitation created a right in favour of the husband to file a second divorce petition, Naik added that the family court passed the order in consonance with the legal position.Justice Deshpande disagreed with the wife’s advocate, Saroj Jadhav, that a consecutive divorce petition is hit by principles of res judicata as the same ground of cruelty — decided by earlier family court — was agitated. She said that while there was only an additional incident of cruelty, the subsequent petition is filed raising ground available to the husband by “operation of law, it is a statutory remedy available to the respondent, which cannot operate as res judicata”. “The second ground has become available due to non-resumption of cohabitation after passing of decree of restitution of conjugal rights,” she explained. Further, the section provides for a “cooling-off period” of one year, in case there is no resumption of cohabitation “this right becomes available to either parties”. The second divorce petition was presented two years after the July 2017 order, Justice Deshpande noted while dismissing the wife’s petition.