Restitution of conjugal rights and divorce: bona fide efforts to resume cohabitation were required, and non-compliance was not proved.

A husband seeking divorce on the ground of non-compliance with a decree for restitution of conjugal rights had to show continued bona fide efforts to take the wife back and proper arrangements for her return. The wife's letters expressing willingness to return, supported by certificates of posting, attracted the presumption of posting and receipt under the Evidence Act, and that presumption was not rebutted. The husband admitted that he made no enquiry, sent no letter, and took no step after the decree, while the surrounding conduct and reconciliation efforts by the wife's relatives negatived deliberate default by the wife. The court therefore held that the wife had not failed to comply with the restitution decree and divorce was not available to the husband.

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Issues: Whether the wife had failed to comply with the decree for restitution of conjugal rights so as to entitle the husband to divorce under Section 13 of the Hindu Marriage Act, 1955.

Analysis: The husband could succeed only if he established that, after the decree for restitution, he had continued his bona fide offer to take the wife back and had made appropriate arrangements to facilitate her return. The evidence showed that the matrimonial dispute arose out of serious allegations of cruelty and hostility in the family dwelling house, that the earlier decree for restitution was passed to give a fair trial to the husband's offer, and that the words permitting return to the husband's house "though not necessarily at Naihati" indicated that a separate matrimonial home could be contemplated. The wife's letters expressing willingness to return, supported by certificates of posting, attracted the statutory presumption of posting and receipt under Section 114 illustration (f) of the Indian Evidence Act, 1872, and that presumption was not rebutted. The husband admitted that he made no enquiry, sent no letter, and took no step to bring the wife back after the decree. The surrounding conduct and the attempts at reconciliation by the wife's relatives also negatived any case of deliberate non-compliance by the wife.

Conclusion: The wife had not failed to comply with the decree for restitution of conjugal rights, and the husband was not entitled to a decree for divorce.

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