Wife leaving matrimonial home, from time to time, without any fault on husband’s part, is mental cruelty: Delhi HC grants divorce to husband

Delhi High Court

Delhi High Court: The appeal under Section 19 of the Family Courts Act, 1984, was filed by appellant-husband, against the judgment dated 11-4-2022 passed by the Principal Family Judge, Family Court, Delhi (‘the Family Judge’) vide which the petition for divorce filed by appellant under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 (‘HMA’), was dismissed. The Division Bench of Suresh Kumar Kait and Neena Bansal Krishna*, JJ., opined that it was respondent-wife who subjected appellant to a life of uncertainty with there being no settlement and mental peace in the matrimonial life, despite 20 years of being spent together and thus it was a case of mental agony to appellant entitling him to a divorce, on the ground of cruelty under Section 13(1)(ia) of HMA. Further, the Court concluded that respondent had deserted appellant without any reasonable cause and thus appellant was entitled to divorce, on the ground of desertion as well.


Appellant, who was a MBBS Doctor, got married to respondent, who was also a MBBS Doctor, in 1992, according to the Hindu Customs and Rites. They were blessed with one daughter in 1994 and one son in 2002. Appellant claimed that respondent possessed an intemperate and volatile nature, who inflicted a vast panoply of cruelties upon appellant and deserted him on at least seven occasions, including the last and final desertion on 10-6-2011. Appellant also claimed that since the day of their marriage, he was conveyed that respondent wanted to marry another person.

Appellant submitted that respondent not only deserted the matrimonial home but also left the children behind, who suffered terribly because of the extraordinary behaviour of respondent. The daughter was preparing for her MBBS Entrance Examination, while the son was of the tender age of 8 years. Respondent’s acts amounted to perpetuating cruelty towards appellant and were damaging for the health, education, and mental well-being of the children, who were disturbed by such acts and unconscionable conduct of respondent. Thus, appellant filed the present petition for divorce on the grounds of cruelty and desertion.

Respondent submitted that appellant always acted on the instigation and advice of his mother, who used to unnecessarily interfere in all the affairs of their matrimonial life. She claimed that all the gifts that she received at the time of her marriage or subsequently, were taken away by the mother-in-law, who gave it to appellant’s sister, who got married recently. Despite the humiliating conduct of the mother-in-law, she still suffered humiliation and degradation and tried to settle in the matrimonial home.

The Family Judge concluded that appellant failed to prove the allegations as made in the petition and there was no cruelty committed by respondent and that respondent was not responsible for desertion and it was appellant whose conduct showed reasonable cause for respondent to have left the matrimonial home. The divorce petition was, accordingly, dismissed.

Analysis, Law, and Decision

The Court stated that each incident of separation which led to separation was not denied by respondent, but the narration of each incident would show an unreasonable attitude of respondent.


The Court observed that according to appellant, he was compelled to arrange a flat only because respondent had issues with his mother and was not willing to return into the matrimonial home, where his mother was also residing. Though, respondent had denied that she ever insisted on separate residence but the very fact that appellant arranged a separate residence lends credence and truthfulness to his claim that respondent wanted accommodation separate from his mother.

The Court opined that though respondent admitted that from time to time, she left the matrimonial home on account of her discomfort in the matrimonial home, but she had not been able to explain any cogent reason which made her feel stifled, scuttled, suffocated/choked, or restricted in her activities. The Court further opined that it was absolutely evident that because of the differences and the issues with the mother-in-law, respondent found it not easy to adjust in the matrimonial home for some reasons or the other which became a cause for her to leave the matrimonial home, repeatedly.

The Court referred to the testimony of appellant, who stated that on 10-6-2011, the day when respondent finally left appellant, she performed her last rites in the kitchen and also tied a “Rakhi” on appellant’s hand while telling him that henceforth, he would be like a brother to her and she abandoned the relationship of husband and wife.

The Court relied on Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 (‘Samar Ghosh Case’), wherein the Supreme Court observed that a prolonged period of continuous separation could lead to the irreparable breakdown of the matrimonial bond, constituting mental cruelty and cessation or deprivation of cohabitation and conjugal relationships, was an act of extreme cruelty.

The Court opined that respondent did not bring forth any act of cruelty on appellant’s part; rather the entire evidence showed that respondent was dissatisfied, unhappy with the conduct of appellant’s mother which made her so unhappy in the matrimonial home that she felt lack of space, control, and respect in the house, and she left the matrimonial home. It was a clear case where respondent left the matrimonial home, from time to time, without there being any act or fault on appellant’s part. Such withdrawals by respondent from time to time were acts of mental cruelty to which appellant was subjected, without any reason or justification.

The Court observed that the Family Judge had dissected each incident individually and separately, but life was not made up of isolated incidents. Each day’s experience adds up to the next day and the entire period of matrimonial relationship must be considered as a whole. The Court relied on Parveen Mehta v. Inderjit Mehta, (2002) 5 SCC 706, wherein the Supreme Court held that the instances of cruelty were not to be taken in isolation, but cumulative effect of facts and circumstances emerging from evidence, had to be taken into consideration to draw a fair inference whether a spouse had been subjected to mental cruelty due to conduct of another spouse.

The Court opined that it was respondent who subjected appellant to a life of uncertainty with there being no settlement and mental peace in the matrimonial life, despite 20 years of being spent together. It was a case of mental agony to appellant entitling him to a divorce, on the ground of cruelty under Section 13(1)(ia) of HMA.


The Court relied on Bipinchandra Jai Singhbai Shah v. Prabhavati, 1956 SCC OnLine SC 15, wherein the Supreme Court defined and explained the essential ingredients for proving the ground of desertion that were, factum deserdendi i.e., the factum of separation and animus deserendi i.e., an intention to desert for a permanent period. Also, the desertion should have been without any reasonable cause and for over two years before filling the petition.

The Court noted that in the present case, the petition was filed on 28-11-2014, after about three and a half years of respondent leaving the matrimonial home on 10-6-2011. The Court also observed that respondent had no intention of continuing in the matrimonial relationship and this was evident from the fact that no serious conciliatory efforts were made by her, to return to matrimonial home. The efforts were made by appellant through family friends and relatives, but admittedly failed. The Court concluded that respondent had deserted appellant without any reasonable cause and thus appellant was entitled to divorce, on the ground of desertion.

The Court held that the Family Judge, erred in dismissing the divorce petition and thus, the Court allowed the appeal and set aside the impugned judgment dated 11-4-2022 and allowed the divorce on the ground of cruelty and desertion, under Sections 13(1)(ia) and 13(1)(ib) of the HMA.

[Vikas Gupta v. Rajni Gupta, 2024 SCC OnLine Del 2442, decided on 2-4-2024]

*Judgment authored by: Justice Neena Bansal Krishna

Advocates who appeared in this case :

For the Appellant: Geeta Luthra, Senior Advocate; Kamakshi Gupta, Manas Agrawal, Advocates

For the Respondent: Reena Jain Malhotra, Advocate

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