In view of irretrievable break down of marriage between the spouses and impossibility of any reconciliation between them, the Apex Court under Art. 142 of the Constitution can pass an order granting divorce.
The court also granted permission to the husband to have custody of minor girls. Smt. Kanchan Devi v. Pramod Kumar Mittal, AIR 1996 SC 3192: (1996) 8 SCC 90.
Wife leaving the matrimonial home with all her household articles and son would indicate her intention not to come back and desert the husband. Patwant Kaur v. Sarabjit Singh, 2006 (3) CCC 267 (P&H).
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In Baldev Raj v. Bimla Sharma, AIR 2006 HP 33, the Court held Miat the two prayers in a suit for restitution of conjugal rights and for a decree of divorce are two diametrically opposite prayers, and therefore, cannot be made together. These prayers are mutually destructive of each other.
The purpose of restitution of conjugal rights is that the Court should intervene in a matter and because one party may have deserted the other, direct it to join the company of the spouse. It is obvious that such an order is to be passed so that the matrimonial home is saved and the married couple can live together.
It is no doubt true that in case after decree for restitution of conjugal rights is passed and is not complied with by the spouse for a period of one year or more after the passing of decree it gives a right to the other spouse to claim divorce. However, in the same petition it does not appear reasonable that both the prayers for restitution of conjugal rights and decree for divorce can be made.