Wife leaves matrimonial home and never returns after several requests and legal notice under S. 9 of HMA, alleges husband of several cruelties without any evidence: Would it amount to desertion and cruelty by wife? Del HC answers

Delhi High Court: Noting the separation of 12 years between the husband and wife, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., found that the wife had subjected the husband to desertion and cruelty, hence decree of divorce be granted.

An appeal was filed challenging the decision wherein the petition seeking divorce under Sections 13(1) (ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 was dismissed.

Factual Matrix

Appellant submitted that the respondent along with the child left the matrimonial home without informing or seeking the appellant’s consent. Since the respondent refused to return back home, a physical altercation between the appellant and his brother on one side and the respondent’s brother on the other side occurred.

When a legal notice was sent to the respondent to resume the conjugal relationship, she did not respond to the notice nor did she rejoin her matrimonial home. Due to being troubled by the same, the appellant filed a petition under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights.

Rather than joining the appellant back, the respondent filed a complaint alleging harassment due to dowry demand and domestic violence. Since the respondent was adamant about not joining the appellant, he withdrew his petition filed under Section 9 of the Hindu Marriage Act, 1955.

Later the divorce petition was filed by the appellant under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 on grounds of cruelty and desertion.

An order of interim maintenance was passed by the Family Court for the respondent and her son, the said order has been challenged by the present appeal.

Analysis, Law and Decision

High Court noted that the conduct of the appellant shows that, at least, till the time he filed the petition under Section 9 of the Hindu Marriage Act, 1955 he wanted to make his marriage work.

Respondent’s conduct demonstrated clear intention on her part to desert the appellant along with a lack of sensitivity to the physical and emotional needs of the appellant. The allegation of dowry demands, abuse, physical and mental torture and harassment, amongst other cruelties, were all unsubstantiated.

Family Court’s approach that it was for the appellant to prove in negative – that he and his family had not subjected the respondent to harassment or cruelty the dowry, was palpably wrong and against all canons of justice and Fairplay.

“…allegations have not been established and amount to a clear and categorical character assassination of the appellant as well as his family members.”

Further, the Bench also expressed that,

“…appellant had to make 30-40 visits to the police station in connection with the said complaint. A police station is not the best of places for anyone to visit. It must have caused mental harassment and trauma each time he was required to visit the police station, with the Damocles Sword hanging over his head, and he not knowing when a case would be registered against him and he would be arrested.”

Concluding the matter, Bench held that the husband made out a case of being subjected to cruelty and desertion at the hands of the respondent. Therefore, High Court observed that there was no chance of reconciliation between the parties and the marriage was irretrievably broken down.

Therefore, the decree of divorce was granted. [Ritesh Babbar v. Kiran Babbar, 2022 SCC OnLine Del 726, decided on 10-3-2022]


Advocates before the Court:

For the Appellant:

Mr. Sumeet Verma and Mr. Mahinder Pratap Singh, Advocates along with appellant (in-person).

For the Respondent:

Mr. Pratyush Chirantam, Advocate with the respondent in person.

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