The Allahabad High Court has affirmed that under Section 10 of the Hindu Marriage Act, 1955, if there is no cohabitation between husband and wife for a year following a decree for the restoration of marital rights or judicial separation, the separation order remains valid.
In its ruling, the bench of Justice Soumitra Dayal Singh and Justice Donadi Ramesh stated that if no cohabitation occurs within the stipulated statutory period, the affected party has the option to file for divorce based on the absence of cohabitation.
The court observed that during the relevant period, there was no cohabitation between the parties, thus deeming the judicial separation decree appropriate.
Consequently, the court dismissed the wife’s appeal.
The case involved a dispute from Urai, Jalaun, where the husband alleged that his wife had left him in 2002.
Despite his efforts to revive the marital relationship, the wife did not resume cohabitation, leading him to seek restoration of marital rights.
The wife countered with a request for judicial separation.
In 2006, the trial court dismissed the husband’s case but granted judicial separation as requested by the wife under Section 10 of the Act.
One year later, the husband claimed that there had been no cohabitation, while the wife asserted that they had lived together.
Believing the husband’s claim, the trial court ordered a divorce for both parties.
The wife challenged this decision in the High Court.
The High Court concluded that the trial court correctly found no reason to doubt the husband’s claim that the parties had not lived together, and thus, their marriage had not been revived within one year of the judicial separation decree.
The court noted that there was no evidence proving that the marriage had revived after 11 May 2006.
Additionally, regarding the applicability of Section 13(1A) of the Act, the court held that it depended on cohabitation, which clearly did not occur.
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