“Overseas wife”, 11 years old marriage, husband visited wife for few days on yearly visits from Canada: A moribund marriage or not? Del HC decides

Delhi High Court: While addressing a matter of divorce proceedings, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., expressed that,

“…every marriage, where the couple stays apart from each other for work or other obligations consensually, is a broken one.”

Instant appeal was filed by the appellant/wife against the respondent/husband under Section 19 of the Family Courts Act, 1984 to assail the decision of the Family Court whereby the petition filed under Section 13(1)(ia) of the Hindu Marriage Act, 1955 by the appellant/wife for grant of divorce from the respondent/husband on the grounds of cruelty was dismissed.

Aspects that needed this Court’s consideration were:

(i) Whether the long periods of continuous separation between the parties led to the matrimonial bond being breached beyond repair, which tantamounted to cruelty and,

(ii) Whether the conduct of the respondent before, or after the filing of the Divorce Petition has been such as to cause mental cruelty to the Appellant to such an extent, that she cannot be reasonably expected to live with the Respondent.

Analysis, Law and Decision

Longtime Separation

High Court observed that judicial view – in context of longtime separation of parties has been well settled with time. In the Supreme court decision of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, while enumerating instances of human behaviour which may be relevant in cases of mental cruelty, Court had indicated an illustrative list of instances.

Recently in the decision of Sivasankaran v. Santhimeenal, 2021 SCC OnLine SC 702, the Supreme Court held that the court could dissolve a marriage when there is actually no chance of the marriage surviving, and it is broken beyond repair. Court relied on Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, it was held as follows:

  1. Undoubtedly, it is the obligation of the court, and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. …”

Bench observed that,

It is not to say that every marriage, where the couple stays apart from each other for work or other obligations consensually, is a broken one.

However, a marriage where there is neither sharing of emotions, nor of dreams, joys, sorrows, memories (happy or sad), is merely a legal bond.

In the present matter, it was noted that the appellant was treated as overseas wife of the respondent. Appellant was there to only serve respondent in India on short visits after yearly gaps.

Further, it was stated that in the past seven years, after the institution of the divorce proceedings, the parties have admittedly not communicated with each other.

High Court added that the period of separation and the deciduous meetings of the parties were enough to show that their matrimonial bond was broken and beyond repair.

After the marriage, which is now 11 years old, the parties lived together only for a few days together in Lucknow, Agra, Delhi, Nainital and Mumbai, when the Respondent came back from Canada on vacations.

Bench found there was neither a matrimonial home, nor the possibility of ever having one and the damage to the marriage was evident.

The parties in the present appeal are at an age, where they may start a new life, if given a chance. However, keeping them tied to a legal bond would only mean snatching away from them the chance to ever lead a fulfilling life.

 In Court’s opinion, there was no reason to keep the moribund marriage alive.

Respondent’s conduct as appellant’s husband

High Court moving to another aspect, stated that the admitted lack of any financial support – not even occasional, displays the indifferent and inert attitude of the respondent towards the appellant clearly displayed his lack of will to be with the Appellant – either in Canada, or in India.

Another significant point which was noted in the matter was that there were no confidence-building measures that the respondent took to give an assurance that the appellant would be well taken care of and not harmed or left helpless, of she followed him into a far off strange world.

The most bizzare aspects in the matter were the respondent’s allegations for appellant’s father, wherein it was stated that the father of the appellant upon learning of the marriage of the parties, had stated that the petitioner should be “gang raped” for the kind of act she has performed and that the “the petitioner should have been aborted at the time of birth” and that “the petitioner is a curse to the family”.

On noting the above, Court expressed that,

Any self-respecting daughter would find it difficult to continue to have anything to do with a man, who has made such scandalous allegations against her father.

Lastly, while concluding the matter, Bench found that the respondent treated and continues to treat, the appellant’s family with disdain and respondent’s conduct would have caused immense mental cruelty to the appellant, sufficient for her to reasonably conclude that she cannot continue her relationship with the respondent.

Hence, the above conduct noted of the husband caused mental cruelty to the wife and in view of the above discussion, marriage of the parties will be dissolved by a decree of divorce on the ground of cruelty contained in Section 13(1)(ia) of the Hindu Marriage Act. [Vandana Singh v. Satish Kumar, 2022 SCC OnLine Del 19, decided on 3-1-2022]


Advocates before the Court:

For the appellant: Mr Praveen Mahajan, Adv. with appellant in-person.

For the respondent: Mr Amit Bhatnagar & Ms. Namrata Ranga, Advs. with the respondent in person

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