Delhi High Court: In a case wherein, an appeal was filed under Section 19 of the Family Courts Act, 1984 against the judgment and order dated 04-09-2018 granting divorce under Sections 13(1)(ia) and 13(1)(ib) of Hindu Marriage Act, 1955 (‘the Act’), the Division Bench of Suresh Kumar Kait and Neena Bansal Krishna, JJ.* opined that once vindictiveness crept in and the wife filed various complaints, legal suits and even alienated the child from the husband, it could be concluded that various acts of cruelty were committed towards the husband. The Court partially modified the impugned judgment and decree dated 04-09-2018 by setting aside the divorce on the ground of desertion but upheld the divorce on the ground of cruelty.
Background
On 06-05-1996, the appellant-wife and respondent-husband got married as per Hindu customs and rites, and out of such wedlock a child was born. The husband was in an Indian Army, due to this he got posted at different locations, therefore the wife along with her child stayed at her matrimonial home in Delhi.
When the child was one year old, the wife undertook a job and later, she along with the child joined the husband to his posted location, but eventually returned within six months. During 2002 and 2003, the husband was posted at different locations and the wife along with the child joined him. However, in 2007 the husband went on a UN Mission to Congo (‘Congo Mission’), during which the wife and the child stayed in the matrimonial home. After returning from his Congo Mission on March, 2008, the husband took up a house on rent and provided the facilities of Sahayaks from the Army to take care of household chores, but the wife’s attitude of nagging and always finding fault created an adverse impact on the husband’s mind.
In June, 2008, the husband requested the wife to join him in Kasauli, where he was posted, but she refused. The husband claimed that the wife abandoned him and never cohabited with him. On the wife’s insistence, the child was admitted to boarding school in Kasauli for two years, but again on her insistence, the child was shifted to a school New Delhi.
The husband claimed that since his return from the Congo Mission, the relations between him and the wife were estranged because of the wife’s indifferent attitude. She hardly talked to him which caused deep frustration and depression in his mind. The husband submitted that the wife wrote numerous complaints to the Commanding Officer, Family Welfare Organization and the Army Head Quarters, and made frivolous and false allegations against him for deserting her and the child. The husband further asserted that he had been deserted by the wife and also shifted to Pune alongwith the child to avoid any amicable resolution of the disputes.
The husband filed a divorce petition on the grounds of cruelty and desertion under Sections 13(1)(ia) and 13(ib) of the Act. The Family Court held that the wife had treated the husband with cruelty and consequently, divorce was granted to him on the grounds of cruelty and desertion.
Analysis, Law, and Decision
As per the wife, the husband had no intention of being in a matrimonial relationship as he did not apply for family accommodation in Kasauli. The Court opined that admitting a child in a boarding school showed that family accommodation was not taken. However, the wife herself preferred to not join the husband in Kasauli because of her job and the decision to put the child in boarding school was made jointly by the parties. Therefore, the Court opined that Family Court had rightly concluded that the husband had no ulterior motive of deserting the wife by not undertaking family accommodation.
The Court opined that daily consumption of an alcohol did not make the husband alcoholic, or added up to his bad character, especially when no other incident had happened because of his alcohol consumption. The Court further opined that a person who lived alone, might find solace by having friends and merely because the husband talked to his friends, it could not be concluded that it was a cruel act and he ignored his wife. The parties had been living separately because of their work and they were bound to make friends, such friendships could not be termed as cruelty.
Further, on issue regarding the wife’s contention that the husband had developed special affection and illicit relationship with another person for a period of time, the Court opined that the Family Court had rightly concluded that such act of the husband was already condoned by the wife, who despite the incident, had expressed her willingness to continue to reside with the husband. The Court opined that once an act which lasted for a short time had been condoned, it could not be considered as cruelty while deciding a divorce petition.
The Court stated that the Family Court had observed that in 2014, the wife had filed a petition under Protection of Women from Domestic Violence Act, 2005, wherein she impleaded the child as co-petitioner, and the child was not even aware about those proceedings. Further, in 2018 the wife instituted a suit in the child’s name against the husband. Thus, the Court opined that the wife on account of differences with the husband, retaliated by using child as a tool.
The Court relied on Prabil Gopal v. Meghna 2021 SCC OnLine Ker 2193, and opined that in the present case, the child was totally alienated and was also used as a weapon against the father. Nothing could be more painful for a parent to see the child drift way and being used a weapon against the father. The Court opined that the husband, as a father had never failed to provide for the child and 20% of his salary was also being paid to the child for her maintenance. The Court opined that the Family Court had rightly concluded that such child alienation was an extreme act of mental cruelty towards a father who had never shown any neglect for the child.
Further, regarding the issue of false allegations made by the wife towards the husband, the Court relied on Joydeep Majumdar v. Bharti Jaiswal Majumdar, (2021) 3 SCC 742, and opined that such conduct from an educated spouse could not be expected and these complaints made by her proved her vengeance to bring down the husband. Once vindictiveness crept in and the wife filed various complaints, legal suits and even alienated the child from the husband, led to the conclusion that various acts of cruelty were committed towards the husband.
The Court concluded that the Family Court had rightly held that the husband was entitled to divorce on the ground of cruelty under Section 13 (1)(ia) of the Act, and merely because the husband had passed away on 02-12-2021 and his legal heirs were impleaded as a party, the present situation did not change. The Court further noted that the Family Court had also granted the divorce on the grounds of desertion and it was evident that the things had gone to an extent where the parties could not restore marital ties. Therefore, it could not be held that it was a case of desertion by the wife for a period of more than two years from the date of separation.
Thus, the Court partially modified the impugned judgment and decree by setting aside the divorce on the ground of desertion but upheld the divorce on the ground of cruelty.
[ABC v. XYZ, 2023 SCC OnLine Del 6099, decided on 13-09-2023]
*Judgment authored by- Justice Suresh Kumar Kait and Justice Neena Bansal Krishna
Advocates who appeared in this case :
For the Appellant: Anu Narula, Advocate;
For the Respondent: Arvind Chaudhary, Advocate
