Case BriefsHigh Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., noted in a matrimonial matter that the wife was being viewed as a cash cow and the husband became interested in her only after she got a job with Delhi Police.

Instant appeal was directed against the decision of lower court preferred by the appellant wife against the respondent-husband under Section 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 to seek a decree of divorce.

On finding no grounds of cruelty or desertion, the family court dismissed the divorce petition established by the appellant-wife.

At the time of marriage, the appellant was minor, whereas the respondent was 19 years old. Since the time of marriage till the time she secured a job, she was residing at her parental home. Respondent showed no interest in taking the appellant till the time she secured a job.

Appellants started living with the respondent and experienced that he was unemployed and was an alcoholic, he even used to physically abuse the appellant and demanded money from her. Further, she stated that the respondent and his family were only interested in her salary.

Adding to the above, she stated that since she was subjected to physical and verbal abuse, and she was also finding it difficult to balance her work and family life with an abusive, alcoholic, and demanding husband, the relationship between the parties sored, and the appellant was kicked out from her matrimonial home.

For the above-stated reasons, the appellant had preferred the divorce petition.

Analysis, Law and Decision

High Court on making certain queries noted that the respondents claim that he had funded the education of the appellant and it was on account of the fact that the appellant got educated and found a job in Delhi Police, so what will happen to the amounts spent by him.

Further in Court’s opinion, the respondent was absolutely clear that the respondent only wanted to continue with the relationship on account of the fact that the appellant had a job with Delhi Police, and he viewed the alleged expenditure on the wife as an investment, which would not bear fruit in case parties were to part ways with judicial intervention.

“…respondent is primarily eyeing the income of the respondent which she derives on account of her job from Delhi Police.”

The continued distance between the parties even after the appellant attained majority would, in itself, have caused trauma and resulted in cruelty to the appellant apart from everything else.

Bench expressed that the brazenly materialistic attitude of the respondent, with no emotional ties, would have in itself caused mental agony and trauma to the appellant sufficient to constitute cruelty to her. Court cannot ignore, that generally, it is the desire of every married woman – particularly belonging to the economic strata to which the parties belong, to get married and start a family.

In the present case, the husband was only interested in the income of the wife and not in nurturing the marriage.

In matrimonial matters, the quality and quantity of evidence required to accept the plea by one or the other party, cannot be same as that required in criminal proceedings.

Elaborating further, the Court expressed that the standard of proof in matrimonial proceedings is founded upon the preponderance of probabilities, and not upon a fact being established beyond all reasonable doubts. Looking at the overall circumstances, Court decided that the appellant was able to establish the ground of cruelty and desertion.

Hence, the Court opined that there is a clear case of perpetration of mental cruelty against the respondent and hence the marriage of the parties be dissolved by a decree of divorce under Section 13(1)(ia) of the HMA. [Sanno Kumari v. Krishan Kumar, 2021 SCC OnLine Del 4914, decided on 28-10-2021]


Advocates before the Court:

For the appellant: Pranaynath Jha, Advocate along with appellant in person.

For the respondent: Jitender Ratta, Advocate along with respondent in person.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Ujjal Bhuyan and Prithviraj K. Chauhan, JJ., held that wife wishing to stay abroad with the child to maintain her status would not amount to cruelty and desertion

In the instant matter, appellant and respondent after having spent 8 years in courtship got married.

The couple is overseas citizens of Canada and Indian Citizens by birth, however, they acquired Canadian citizenship and thus had dual citizenship.

The circumstances changed for the couple when appellant started experiencing medical problems namely constant back and shoulder pain as well as skin related problems, especially during summer due to rag weed allergy resulting into sleepless nights and miserable days. To add to it, there was recession in 2010 that hit Canada due to which the appellant lost his job resulting into a financial burden upon the respondent.

In view of the above circumstances, the couple decided to permanently return to India.

Respondent visited Kutch without intimating the appellant about her whereabouts over there. After her return from Kutch, when the appellant asked the respondent to resume cohabitation, she refused. Infact, the respondent insisted on a separate accommodation.

It was submitted that the respondent was interested in returning back to Canada.

Respondent visited the appellant’s house along with her father, brother and massi and demanded her passport along with documents and jewelry. When the appellant asked the respondent the reason for such conduct, he was threatened that they would call the police and, therefore, the appellant had returned her passport, documents etc.

Further, respondent was adamant to settle in Canada for a better future, however, appellant expressed his unwillingness to shift to Canada owing to his health issues and other related reasons.

Appellant in order to show his bona fides as well as his love and affection towards the respondent had paid her CAN $ 25,000 plus Rs 1,25,000 in Indian currency to facilitate her departure to Canada. The respondent left for Canada with their son.

Respondent did not return nor made any attempt to contact the appellant and in June 2011, respondent’s massi called the appellant and demanded money on behalf of the respondent.

Later, respondent demanded money from the joint savings by accusing the appellant that he had cheated and abused her financially.

Despite all the efforts, there was no amicable settlement of their dispute and hence appellant was constrained to issue a legal notice calling upon the respondent to come and co-habit with him.

On realising that there would be no hope of any restitution, appellant sought a decree of dissolution of marriage on the ground of willful desertion by the respondent.

Family Court dismissed the petition, inter alia, observing that no case had been made out of the alleged cruelty to the appellant by the respondent-wife; rather they had happily cohabited till the child was born.

Analysis, Law and Decision

Whether appellant was subjected to cruelty by the respondent-wife to such an extent as to entitle him to a decree of divorce in view of the admitted fact that the couple had themselves decided to shift to Canada after their marriage for better prospects and admittedly acquired overseas citizenship of Canada with their free consent and will?

 It is pertinent to note that the respondent had been working as a Regulatory Affairs Associate at Teva Canada Limited which appears to be a pharmaceutical company.

Cruelty and Desertion?

Bench stated that in view of the above-stated status of the respondent, it would not be justified, in any way, expecting her to return to India when she was already well settled over there.

Wish of the respondent cannot be branded as an act of selfishness or the act on her part cannot be said unjustified.

Hence, the respondent’s act could not be said to be cruelty meted out to the appellant by the deserting spouse.

Husband’s allegations: FALSE OR NOT?

Husband did not examine any witnesses to corroborate his claims that the wife’s family had threatened him to return her passport, documents and jewellery or that they demanded any money. No medical records were placed to prove that the appellant couldn’t join the respondent for health reasons.

Appellant’s evidence was quite vague, insufficient and lacking in material particulars.

Court noted that what is surprising is that had it been the intention of the respondent to sever the marital tie, she would not have allowed the appellant to meet their child, Mukund. This aspect is important as per the Bench wherein it was indicated that neither the respondent treated the appellant with cruelty nor did she desire to desert him.

Is there hope to reunite the couple?

Bench reiterated that the matrimonial tie had not reached the stage of such deterioration that was beyond repairs, especially when Mukund was still a child who could be a bond between the couple to reunite them once again.

High Court referred to the Supreme Court decision in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 wherein features/instances of human behaviour relevant in dealing the case of mental cruelty were discussed.

In view of the above decision, Bench stated that it would be difficult to construe that the marriage of the parties had deteriorated to such an extent that it would be impossible to unite the couple.

Supreme Court’s decision in  Bipinchandra Jaisinghbhai Shah v. Prabhavati, AIR 1957 SC 176, was relied upon wherein the essential requisites of desertion were set out.

No case of desertion was made out in the present matter and taking into consideration of facts, circumstances and evidence on record, Bench opined that no case was made out by the appellant for seeking a decree of divorce on the ground of either cruelty or desertion. [Prakashchandra Joshi v. Kuntal Prakashchandra Joshi, 2021 SCC OnLine Bom 958, decided on 24-06-2021]


Advocates before the Court:

Mr. Vikas Singh i/b Ravi Dwivedi, for Appellant.

None for Respondent.

Case BriefsHigh Courts

Madras High Court: T. Raja, J., in the present matter while considering the long separation of parties for almost a quarter-century, granted a decree of divorce by dissolving the marriage between the parties.

Factual Matrix

In the present matter, appellant was married to the respondent and a male child was born out of wedlock. During the pregnancy of respondent, it was alleged that even after doctor’s advise, the respondent/wife had not taken proper care. Ultimately, the respondent delivered a handicapped male child.

Further, it was also alleged that from the date of marriage, the respondent was adamantly raising disputes and quarrels even for cohabitation due to which the appellant was subjected to mental agony.

Although the appellant tolerated all the unlawful activities of the respondent on the belief that she would change her attitude in due course, no improvement thereon had occurred.

No Response for 7 long years

Respondent later left the matrimonial house and never came back even after a lot of requests and visits by the appellant and his parents. When there was no response from the respondent for 7 long years and thereby deserted the appellant, petition was filed before the Family Court seeking divorce on the ground of cruelty and desertion under Section 13(1)(i—a) and (i—b) of the Hindu Marriage Act to dissolve the marriage between the appellant and respondent.

Respondent had sought restitution of conjugal rights under Section 9 of the Hindu Marriage Act. Trial Court concluded that husband, wanted to get rid of the special child and mother and no cruelty was caused by the respondent/wife and no desertion was accused of the simple reason that only the appellant has taken both the respondent with the son by car to her parental house and left them there with the promise that he would come and take them back. But he did not turn up to take them back to the matrimonial home.

When the lower appellate court came to the conclusion that no case of cruelty or desertion was made out, aggrieved thereby, the present appeal was filed by the appellant raising the following substantial questions of law:

  • Whether the appellant/husband is entitled to divorce on the ground of cruelty and desertion and whether the respondent/wife is entitled to the relief of restitution of conjugal rights?
  • Whether the Courts below have properly applied the law of evidence as the question of proof of cruelty and desertion can always be decided only on oath?
  • Whether the finding of the lower appellate Court in putting the blame on the appellant in not taking care of the spastic child is not contrary to the evidence available on record?

Analysis, Law and Decision

Bench expressed that a human problem can be properly resolved by adopting a human approach and applying the same ratio in the cases on hand, when the parties are living separately for 25 long years, not to grant a decree of divorce would be disastrous for the parties.

Adding to the above, Court stated that preservation of a ruined marriage is totally unworkable, as this would be a source of misery for the parties. During the pendency of the matters, the parties declined to accept the proposal for re-union.

Therefore, when the parties were living separately for 25 long years and the mediation efforts were undertaken also proved to be of no avail, this Court following the decision of the Supreme Court in Naveen Kohli v. Neelu Kohli, 2006 (2) CTC 510, Bench decided to dissolve the marriage between the parties.

Moving forward, Court being aware and conscious of the fact that the interest of the respondent needs to be safeguarded, elaborated that Section 25 of the Hindu Marriage Act states that at the time of the passing of any decree or at any tie subsequent, on an application made to it, may order one party to pay the monthly sum as maintenance to other party.

Since the appellant had been paying a sum of Rs 10,000 per month to the wife as maintenance without any default and taking care of his son with the assistance of a helper by paying from his pension bearing in mind that the appellant is a retired Bank Officer, this Court directs the appellant to continue to pay the said sum of Rs.10,000/- per month as maintenance to the respondent without fail.

Lastly, the wife was granted visitation rights and the matter was disposed of in view of the above terms. [V. Ramasamy v. L. Priya, 2021 SCC OnLine Mad 1674, decided on 26-04-2021]


Advocates before the Court:

For Appellant: Mrs K.Sumathi

For Respondent: Mr E.Raj Thilak

Case BriefsHigh Courts

Telangana High Court: The Division Bench of M.S. Ramachandra Rao and T. Vinod Kumar, JJ., while addressing the present matter highlighted the aspects of mental cruelty and desertion.

Respondent 1 who was married to appellant had alleged that since the time of marriage appellant was harassing and ill-treating him and was also abusing along with defaming him in the presence of other villagers.

Appellant filed a false complaint against the husband i.e. respondent 1 and his parents under Section 498-A read with Section 34 Penal Code, 1860 and that the appellant had deserted him and was leading adulterous life with 2nd respondent.

Respondent 1 alleged that the appellant while residing with 2nd respondent demanded big sum of money from the parents of respondent 1, after which she filed another false complaint. Appellant had also attacked and beat up the mother of respondent 1 causing her internal injuries.

Mental Cruelty and Desertion

Summing up the above-stated contentions, respondent 1 contended that leading of adulterous life by appellant with 2nd respondent amounts to cruelty and actions of appellant amounted to defamation, insult and annoyance and since he lost his reputation in the village, he as entitled to decree for dissolution of marriage on the ground of mental cruelty and desertion.

As per the appellant/wife she had denied being in love with 2nd respondent and gave a complaint against the 2nd respondent for sexual harassment.

Appellant denied of all the allegations placed by the husband against her. Further, she also added that her in-laws beat her up during her pregnancy and threw her out of the matrimonial home and she spent four years in her parents’ house during which time the 1st respondent did not bother to call or reconcile with her.

Her in-laws also forcefully took her minor daughter away.

Court below had concluded that respondent 1 could not be expected to live with the appellant since she had illegal contact with 2nd respondent and evidence on record indicated that the appellant was treating respondent 1 with mental cruelty and husband and wife had been living separately since 2015 and the marriage had irretrievably broken down and there was no chance of them living together again. Hence decree of divorce was granted.

Appellant filed the challenge to the above appeal.

Analysis, Law and Decision

One of the grounds for dissolution of a marriage is treatment of one spouse by the other spouse with cruelty, and such cruelty can be either mental cruelty or physical cruelty.

It was noted that the appellant had herself given a criminal complaint against 2nd respondent stating that she was married to 1st respondent and was blessed with a female child , but she was for previous 4 years staying away from her husband and from previous one year the 2nd respondent had lured her with delicious words and told her that he loved her and if she agreed, he will marry her; that she discarded her husband as she was not willing to lead marital life with her husband and when she came to the 2nd respondent and asked him to marry, he refused to marry her. She thus sought to take legal action against the 2nd respondent.

As per the contents of the complaint, appellant had illegal connection with 2nd respondent and had expressed her intention of not willing to lead marital life with 1st respondent who was her lawfully wedded husband.

Fidelity in marital relationship is very important and if one of the spouses is guilty of infidelity, it would certainly amount to causing mental cruelty to the other spouse.

 High Court opined that the Court below did not commit any error in giving the finding that the appellant treated 1st respondent with cruelty by leading adulterous life with 2nd respondent and that she had deserted the 1st respondent and treated him with cruelty and that marriage had irretrievably broken down and there was no chance of them living together again.

Hence no merit in the appeal was found leading to its dismissal.[Laxmi Meenakshi v. Chetty Mahadevappa, 2021 SCC OnLine TS 469 , decided on 09-04-2021]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of A.S. Chandurkar and N.B. Surawanshi, JJ., upheld the decision of the family court.

Present appeal was filed under Section 19 of the Family Courts Acts, 1984 by the appellant-husband, in view of his petition being dismissed by the Family Court for judicial separation and in the alternative for a decree of divorce on cruelty and desertion ground.

According to the husband, he was Mangalik as per his horoscope and hence was in search of a girl who was having a Mangalik horoscope. As per the girl’s biodata, she was depicted as Mangalik.

After her marriage with the appellant she started living in the joint family of her husband where she usually used to stay aloof. Further, it has been stated that she avoided giving her educational certificates on the pretext that they were lost.

On receiving her educational certificates from her father, the husband was shocked to know her actual date of birth therefore she was Non-Mangalik. She had even failed BA-II.

The wife left the matrimonial house at midnight without informing anyone and during the search, she was found with her brother and brother in law who were taking her to her maternal home.

The husband along with his family members went to bring the wife back, but her parents refused to send her and also threatened to involve them in a false case. According to the husband, the wife lodged false complaint on that day.

Husband alleged that the wife caused mental and physical harassment to the husband. He, therefore, contended that the wife deserted him on account of false complaint lodged by the wife and the husband from time to time.

Due to the continuous torture by the wife, the life of the husband had become miserable. He was not in a position to concentrate on his work due to continuous harassment by the wife. The husband, therefore, lost all the hopes that the smooth relations between him and wife were possible. Hence, he filed the petition seeking divorce on the ground of cruelty and desertion.

Wife while declining all the above allegations claimed that she was ready to cohabit with the husband and hence prayed for the dismissal of the petition filed by the husband.

Family Court dismissed the petition of the husband, hence the husband preferred the present appeal.

Analysis, Law and Decision

Points for determination:

  1. Whether the appellant is entitled for decree of divorce?
  2. Whether the learned Family Court dismissing the petition of husband is legally correct?

Bench noted in the cross-examination of the appellant that he admitted that prior to his marriage there were negotiations as well as internal talks and his sister had inquired about the education of the respondent as well as her family background. The appellant also admitted that he married the respondent as he liked her. He also stated that he did not take decision in his life on the basis of horoscope. The marriage was performed after verifying the background, houses and all the details of both the families. His father in his evidence admitted that the horoscopes of the appellant and the respondent were not tallied. Further, he deposed that he did not have any document to show that the appellant was a Mangalik. He even admitted that at the time of marriage the age of the appellant was beyond marriageable age.

Hence, all these admissions belie the case of the appellant that there was cheating on the part of the respondent and her parents at the time of settlement of marriage.

In view of the above, Bench observed that there was no fraud played by the wife or her family.

Appellant failed to make out a case of fraud and even if it is assumed that there was misrepresentation in respect of the date of birth, it does not affect the matrimonial relations between the appellant and the respondent, as the appellant failed to prove that he was Mangalik and he intended to marry the girl having Mangalik Yog.

Father of appellant, admitted that for initial two years of the marriage, there was no dispute between the appellant and the respondent in respect of age difference as well as the respondent being non-mangalik. According to the respondent, the ill-treatment started only after the appellant got government job.

Therefore, evidence laid by the respondent did not spell out cruelty caused by the respondent to him.

With regard to Desertion, Court noted that as per the evidence led by the respondent she was beaten and her sister and her husband saw the marks of beating on her person. After they left, she was again beaten and threatened with life. Apprehending danger to her life, she had to take shelter in the house of neighbour Shri Gordey. From there, she called her parents and her brother, sister Kiran, her husband and others took her from the house of Shri Gordey to her parent’s house

Further, there was no material that depicted that the appellant tried to bring the respondent back for cohabitation.

 “…since the appellant attributed cheating and fraud to the respondent and her parents, it is not possible to believe that he tried to bring the respondent back for cohabitation.”

Therefore, family court rightly appreciated the evidence on record and appellant failed to prove cruelty and desertion on the part of respondent-wife.

In view of the above discussion. The appeal against the family court’s decision was dismissed. [Kartik Narayan Dhawle v. Vaishali Kartik Dhawle, 2021 SCC OnLine Bom 241, decided on 23-02-2021]


Advocates who appeared before the Court:

B.R. Hindustani, Advocate holding for A.N. Ansari, Advocate for the appellant,

S.N. Thengari, Advocate for the respondent.

Case BriefsHigh Courts

Tripura High Court: A Division Bench of S. Talapatra and S.G. Chattopadhyay, JJ., upheld the decision of the trial court and stated that the present matter is a case of an irretrievable breakdown of the marriage in light of cruelty and desertion.

Cruelty & Desertion | Dissolution of Marriage

Allegations of cruelty and desertion were placed against the wife by the husband in light of which the husband approached the Family Court under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce.

Family Court dissolved the marriage.

Aggrieved wife preferred the present appeal under Section 28 of the Hindu Marriage Act, 1955 read with Section 19 of the Family Courts Act, 1984 challenging the legality of the impugned Judgment of the Family Court.

Court considers in the present case whether the grounds of cruelty and desertion against the respondent-wife, the appellant herein, existed on the date of filing of the divorce petition or not.

From the pleadings of the parties and their evidence, it would appear that the respondent-wife left her matrimonial home along with her daughter and she did not live with her husband at any point of time till the petition was filed by her husband on seeking a divorce and even thereafter.

The witnesses of the petitioner including two of his neighbours had categorically asserted that they did not notice any untoward incidents preceding to the departure of the respondent-wife from her matrimonial home.

Further, the bench stated that on perusal of the parties and their evidence discussed, no material was found to show that the respondent-wife was ever forced by her husband to leave his company or that she was thrown away from her matrimonial home.

Wife prosecuted her husband and his relatives under Section 498A IPC which was proved to be unfounded in the Sessions Court as well as in the High Court.

Institution of a complaint under Section 498-A IPC against the husband does not ipso facto constitute mental cruelty unless the court having assessed the totality of the facts and circumstances and also having taken note of the nature of the allegations come to the conclusion that amongst other things the wife also brought unfounded and scandalous allegations with a clear intention to humiliate the husband and his relatives and such conduct of the spouse caused disappointment and frustration in the other spouse.

Whether such conduct of the respondent-wife amounted to the desertion of her husband and caused mental cruelty to him and entitled him to a decree of divorce.

There cannot be a straight-jacket formula for determining cruelty in matrimonial relationships. Whether the alleged conduct of the spouse constitutes cruelty has to be judged in the particular context of the case keeping in view all the attending facts and circumstances of the case.

In the present matter, the petitioner proved that his wife abandoned him along with her daughter when he lost his vision and was in dire need of their company and the support of his wife.

Such conduct of the wife must have hurt the sentiment of the petitioner husband and affected their relationship. After abandoning her husband, she labeled allegations of harassment for dowry against her husband in a proceeding under Section 498A IPC followed by a proceeding under the Protection of Women from Domestic Violence Act.

The unprovoked humiliating treatment by the wife to her husband caused cruelty to the husband.

Apex Court, while laying down the broad parameters for determination of mental cruelty for the purpose of granting divorce in Samar Ghose v. Jaya Ghose, (2007) 4 SCC 511 reiterated the same principle and held as follows as one of the parameters:

“101…(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

Hence, in the present matter, both the grounds of cruelty and desertion existed on the date of filing of the divorce petition. Moreover, there is no denial of the fact that the husband and the wife are staying apart for more than 13 years and during this period they never lived together at any point of time.

Therefore, the present matter is a case of an irretrievable breakdown of marriage and it is quite impossible to save the marriage.

 Trial Court’s decision is upheld and the husband is directed to pay a monthly maintenance allowance for his wife and daughter.[Aparna Dey v. Alok Dey, 2020 SCC OnLine Tri 411, decided on 09-09-2020]

Case BriefsHigh Courts

Bombay High Court: A.S. Kilor, J., held that contravention of the provision of Section 15 of the Hindu Marriage Act, 1955 does not amount to willful disobedience of ‘other process of a Court’ under the provisions of the Contempt of Court Act, 1971.

Willful Disobedience

The petitioner sought action under Section 12(3) of the Contempt of Court Act, 1971 against the respondent for alleged willful disobedience of ‘other process of a Court’ by performing marriage in contravention of the provision of Section 15 of the Hindu Marriage Act, 1955.

Facts 

Respondent preferred a petition under Section 13 of the Act, 1955 against the petitioner for dissolution of marriage on the ground of cruelty and desertion.

Civil Judge had dismissed the petition holding that the respondent failed to prove cruelty and desertion.

Decree of Divorce

The respondent questioned the Judgment and decree which was allowed and thereby declared the marriage between the petitioner and respondent stands dissolved by a decree of divorce.

Petitioner filed the second appeal which is pending before the Court.

While the appeal was in pendency, the contempt petition had been filed alleging that the respondent had performed second marriage in contravention of the mandate of the provision of Section 15 of the Act, 1995 which is willful disobedience of ‘other process of a Court’ as provided by Section 1(b) of the Act, 1971.

Counsel for the petitioner, T.G. Bansod and S.S. Jagtap Counsel for the respondent.

Bench considered the following questions:

“(i) Whether the performance of second marriage by the respondent on 20-03-2016 during the pendency of appeal is unlawful in view of prohibition stipulated under Section 15 of the Act, 1955, and if yes ?

(ii) Whether contravention of Section 15 of the Act, 1955 amounts to willful disobedience of ‘other process of a Court’ as provided in Section 2(b) of the Act of 1971 ?”

Court referred to Section 15 of the Hindu Marriage Act, 1955, which reads as follows:

“Divorced persons when may marry again — When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”

High Court noted that the respondent ignored the prohibition and performed the second marriage under an incapacity to marry, stipulated under Section 15 of the Act, 1955.

Ejusdem Generis

Further, to find out the import of the expression ‘other process of a court’ which is a general term, the principle of Ejusdem Generis would be helpful to apply, in the present matter.

Civil Contempt — Section 2(b) of the Contempt Act, 1971

“Civil contempt means willful disobedience to any judgments, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court.”

The expression ‘willful disobedience of process of a Court’ used under Section 2 (b) of the Act, 1971, must also be related to the disobedience of some command issued by the Court during the process of a Court which includes various stages between the filing of any proceeding to a final decision by the Court.

Bench stated that at any stretch of imagination it cannot be said that contravention of the provision of Section 15, amounts to willful disobedience of ‘other process of a Court’ under the provisions of the Act, 1971.

High Court in view of the above held that during the pendency of the appeal, the performance of second marriage would be a breach of prohibition stipulated under Section 15 of the Act, 1955, but in any case, it would not amount to disobedience of any command of the Court consequently such act would not fall within the ambit of the expression ‘willful disobedience of other process of a Court’ under Clause (b) of Section 2 of the Act, 1971.

No Civil Contempt

In view of the observations laid above, Court stated that the second marriage performed by the respondent in contravention of Section 15 of the Act, 1955 would not fall within the purview of clause (b) of Section 2 of the Act, 1971 and hence no civil contempt has been committed.

Accordingly, the contempt petition was dismissed. [Kanchan v. Prashant Manikrao Bagade, 2020 SCC OnLine Bom 911, decided on 08-09-2020]

Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of H.C. Mishra and Rajesh Kumar JJ., rejected the prayer and dismissed the appeal being devoid of merit.

The facts of the case are such that marriage of the appellant and his wife was solemnized in the year 2007 as per Hindu rites and rituals in the presence of all family friends and relatives and two children are born out of the wedlock. The appellant alleged that wife has been living separately and on numerous incidents caused mental agony to the appellant. He has further alleged in the appeal that the acts of the wife amount to cruelty and desertion of the wife. A suit was filed by the husband for divorce under Section 13 of the Hindu Marriage Act, 1955 on grounds of cruelty, desertion and mental incapacity of the respondent-wife. The Trial Court decided the matter in favour of the wife and aggrieved by the same, the instant appeal was filed challenging the same order.

The appellant represented himself in person and submitted that the wife behaved psychic and rudely and treated him and his parents with utmost cruelty. He cited various incidents to support his argument along with two witnesses, one himself and his mother, namely, Kaushalya Devi but did not produce any documentary evidence.

Counsel Sujeet Neepulam representing the respondent-wife denied allegations of cruelty, desertion and mental illness and submitted further that her actions of leaving home and staying with parents are not willful as the appellant and his family were demanding dowry, refusing which she was ousted from the marital home and brought back and ousted again on many occasions. Four witnesses, namely, Ashok Saw, Naresh Saw, Praveen Kumar and herself were examined to support her argument alongwith documentary evidence i.e. a mutual divorce application dated 13-07-2009 sent by the husband to wife after signing, a letter dated 30-07-2010 to her father giving threat, copy of an FIR instituted by the respondent-wife under Section 498 A of Penal Code, 1860 and Section 3/4 of the Dowry Prohibition Act, 1961  compromise copy after the appellant was arrested subsequent to the filing of FIR and other pertinent documents to support her plea. It was further submitted that the respondent is still willing to lead a respectable conjugal life with her husband, but the husband is not willing to keep her.

The Court observed that appellant was unable to present any substantial evidence except oral evidence of his and his mother whereas the respondent-wife presented various documentary proofs which demolish the case of cruelty from her side instead makes it clear by looking at the mutual divorce application and a written letter of threat to her father or the fact that she compromised to secure bail for the petitioner is enough to indicate the willingness of the respondent-wife to resume the respectable conjugal life with the appellant.

The court relied on judgments titled Jorden Diengdeh v. S.S. Chopra, (1985) 3 SCC 62 and Kaslefsky v. Kaslefsky [1951] P. 38 and held that any husband desirous to get rid of his wife may get desired result by driving out his wife from matrimonial home by force or creating a situation and thereafter taking plea of desertion for more than two years. The law is clear that if one of the parties to the matrimonial home, voluntary and without any plausible explanation has left the matrimonial home giving no option to the other party, then it amounts to desertion. Desertion is a willful and voluntary act by the party to leave something without any rational reason. In the present case, the husband is at fault and this is the reason for separate living of both the parties. Hence, the argument that living separately itself is sufficient in the eyes of law for granting the divorce is not acceptable.

In view of the above, decree for divorce rejected and appeal dismissed.[Sanjay Kumar v. Suman Kumari, 2020 SCC OnLine Jhar 773, decided on 08-09-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ravi Malimath and Narayan Singh Dhanik, JJ., allowed an appeal which was filed aggrieved by the order passed by the trial court in ordering the medical examination of the wife.

The respondent-wife was alleged to have committed various acts of cruelty; that she had also deserted her husband, therefore, he filed the petition before the Family Court under Sections 13 (ia) and 13 (ib) of the Hindu Marriage Act, 1955. During the pendency of the proceedings, on an application made by the husband, the impugned order was passed by the trial court directing the medical examination of the wife to ascertain whether she was in a position to conceive or not. Thus, the present appeal.

The Counsel for the appellant wife, Harshpal Sekhon contended that wife undergoing a medical test to ascertain whether she can conceive or not is something unheard of and further whether she can conceive or not is irrelevant to the facts and circumstances of the case.

The Court while allowing the appeal quashed the Family Court’s Order and  stated that husband had sought for a decree of divorce on the grounds under Sections 13 (ia) and 13 (ib) of the Hindu Marriage Act, 1955. Section 13 (ia) is with regard to cruelty and Section 13 (ib) is with regard to desertion. Therefore, the husband would have to establish these two facts before the court in order to seek divorce on these grounds. The ability of the wife to conceive or not has no relevance or any nexus with sub-section (ia) or (ib) of Section 13 of the Hindu Marriage Act. Her ability to conceive or not is irrelevant in the present proceedings. [Rashmi Gupta v. Yogesh Babu, 2020 SCC OnLine Utt 339 , decided on 01-07-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Asha Menon, JJ., while addressing a matrimonial application stated that,

“Marriage is no doubt a sacrament, but it cannot be a one sided affair.”

Present appeal has been preferred against the Judgment of Family Court wherein the marriage between the appellant/respondent and respondent/petitioner was dissolved as the same was sought on grounds of cruelty and desertion within the meaning of Section 13(1)(i–a) and (i–b) of Hindu Marriage Act.

Facts

Respondent/Petitioner alleged that the conduct of the appellant/respondent was extremely cruel and he possessed a callous and indifferent attitude since the initial years of marriage.

It was also discovered that he had many personality and behavioural problems, wife time and again tried to cope up with husband’s shortcomings an tried to help him acquire stability and status in life, many times forgiving his violence.

On repeated occasions, she found to her consternation, that the appellant/respondent made no effort to either settle down in his job or contribute to the household including taking care of their child’s educational needs.

Things reached a breaking point when despite the request of the respondent/petitioner not to invite his parents to their transit accommodation at Jawahar Lal Nehru University which had limited space and to request them to stay with his sister who was residing in Gurgaon, the appellant/respondent threw a tantrum and left the house in October 2011 without understanding that the reason for the said request was only the pre- board exams of their daughter.

Premised on the above-stated facts, respondent/petitioner filed for divorce.

Appellant/respondent preferred the present appeal on the ground that the petition for divorce has been filed by the respondent/petitioner after nearly 20 years of the marriage and therefore, it ought to have been dismissed.

Counsel for the appellant contended that, language used by respondent/petitioner in her letters does not demonstrates any hard feelings between the couple and thus the story of cruelty was just a figments of imagination of respondent/petitioner on which marriage could not have been dissolved.

Analysis and Decision

A drowning man clutching on to a straw

It is quite evident from the letters written by the respondent/petitioner that while she was doing her very best to preserve the marriage, there was no reciprocation from the appellant/respondent.

“I have been writing to you every week regularly. There is no reply from you? I have left 4-5 inlands in our room letter holder. Pick one of them and write back soon.” In the letter dated 29.07.2000, once again, it starts “how are you? There is yet no letter from you.” Therefore, to submit that these letters disclose a ‘happy family’ scenario, is to blink at the truth.

Bench while noting the log list of instances of cruelty, stated that,

repeated onslaught on her emotions even subsequent to these instances took a toll on the physical and mental health of the respondent/petitioner.

All the relevant events that have continuously occurred in the lives of the parties, reflect a one sided relationship where the appellant/respondent took everything for granted, with no sense of responsibility, while the entire burden of trying to keep the marriage alive was left for the respondent/petitioner to shoulder.

Court also added that, this is a typical case that showcases as to what would amount to cruel behaviour on the part of one spouse to the utter detriment of the other.

Material on record goes to amply demonstrate the sincere efforts made by the respondent/petitioner to salvage the marriage and show that she did more than what was her duty, to preserve it.

Thus in light of the above observations, Family Court’s decision is upheld. [Venkatesh Narasimhan v. V. Sujatha, 2020 SCC OnLine Del 571 , decided on 01-05-2020]

Case BriefsHigh Courts

Chhattisgarh High Court: The Division Bench comprising of Prashant Kumar Mishra and Gautam Chourdiya, JJ. allowed an appeal to grant a decree of divorce in favour of the appellant-husband for being subjected to mental cruelty by the wife.

The present appeal calls in questions the legality, validity and the propriety of the judgment passed by the trial court in which it had dismissed the appellant/plaintiff’s suit for grant of decree of divorce on the ground of cruelty and desertion.

Submissions by the appellant

Appellant submitted that the respondent-wife was not paying proper respect to his parents and used to instruct his mother to prepare meals as per her menu. Respondent wife had returned to her parental house after a few days of marriage and returned after repeated requests and that is when she started pressurizing the appellant to live separately.

Appellant states that even after accepting all her demands, there was no change in her attitude and behaviour. To make the situation worse, she filed a false complaint of demand of dowry, after which she again returned to her parental house and never joined back the company of the appellant-husband.

Therefore, based on the above circumstances, the plaintiff/appellant prayed for a decree of divorce on the ground of mental cruelty and desertion.

Respondent wife denied all the above allegations and in fact pleaded that she was subjected to cruelty, her in-laws retained the Streedhan properties and appellant threatened her that he will obtain a divorce and remarry. Further, she categorically stated that she is willing to join the company of the appellant.

Observation

On perusal of the pleadings and depositions, it was noted that the appellant had been making allegations that the respondent impleaded him, his parents and other relatives in a false criminal case for offence under Sections 498-A and 323 of Penal Code, 1860.

Trial Magistrate had acquitted the accused persons of the charges under Sections 498-A/34 and 323 IPC. Further, it was noted that, the respondent-wife stated that she was subjected to disrespectful and indecent behaviour by the appellant and his family members. Allegation of cruelty and demand of dowry or causing simple hurt was not found by the Trial Magistrate

In the present suit when respondent-wife was examined, a specific question was asked to her that, whether she is willing to reside with the appellant, to which she answered with an emphatic ‘NO’, ‘Never’.

The above makes it clear that she made false allegations along with that she was also not willing to reside with the appellant and all of this was contrary to her own pleading.

Held

The High Court, while relying on the law laid down by the Supreme Court in the case of K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226 in which it was observed that:

“Scandalous, vulgar and defamatory statement by the wife against the mother of the appellant causes mental cruelty to the husband.”

Adding to the above observation, it was also stated that wife failing to prove her complaint in which she has placed unfounded, indecent and defamatory allegation would all amount to causing mental cruelty.

Therefore, in the present case, the respondent-wife made allegations which she had failed to prove and the allegations were to the extent of scandalous and indecent ones against the father-in-law along with the demand of dowry and causing simple hurt, which were all false.

Thus, the appeal to grant the decree of divorce in favour of the appellant to dissolve the marriage between the parties was allowed. [Chandan Singh v. Sangeeta Singh, 2019 SCC OnLine Chh 89, decided on 20-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court:  Deepak Sibal, J. dismissed the present petition as the impugned order was not defective on the ground that framing of the issue was not challenged by the petitioner and evidence were led only on the same ground. 

A petition was filed against the dismissal order in which application filed by the petitioner was prayed for withdrawal of divorce petition with permission to file afresh.

The brief facts of the case were that petitioner filed a petition under Section 13 of the Hindu Marriage Act, 1955 for dissolution of the marriage between the parties on the ground of cruelty.  During the course of the trial, at the final argument stage, petitioner filed an application under Order 23 Rule 1 of the Code of Civil procedure, 1908 seeking withdrawal of his divorce petition with permission to file a fresh petition on the same cause which through the order impugned in the present proceedings has been dismissed.

Manish Kumar Singla, counsel for the petitioner submitted that there was a formal defect in the petition as averments had been made in the petition with regard to the respondent-wife having deserted the petitioner but since between the alleged date when the respondent-wife had deserted him and the filing of his petition the statutory period of 2 years had not elapsed, the Trial Court erred in not permitting the petitioner to withdraw his divorce petition with permission to file a fresh one on the same cause.

Karan Bhardwaj, counsel for the respondent submits that with regard to the issue of desertion, there was no formal defect in the petitioner’s petition and therefore, the petitioner cannot be allowed to withdraw his petition with permission to file fresh one on the same cause.

The Court opined that the respondent-wife had refused to join the company of the petitioner would not give a cause to the petitioner to seek divorce on the ground of desertion and there was no formal defect in the petitioner’s defect. It was further submitted that the ground of desertion was neither available to the petitioner nor taken by him. During the pendency of the petition, even if such ground has become available, the same would not make the petitioner’s petition as defective. Thus the matter was dismissed. [Kulwinder Singh v. Manmohan Kaur, 2019 SCC OnLine P&H 1337, decided on 25-07-2019]

Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J. while hearing a revision petition, remitted a matrimonial case to the Family Court, Kalpetta for consideration and disposal afresh, after hearing both the parties.

Revision petitioner herein sought maintenance in Family Court, Kalpetta, from the respondent-husband. She was aggrieved by the judgment that dismissed her plea to seek maintenance on the ground that she had engaged in adultery, and also because she was employed and getting enough income to maintain herself. Hence, she filed the instant revision petition.

The petitioner contended that there was no visual or documentary evidence produced by the respondent to prove an act of adultery. The decision was passed on the basis of the respondent submitting one instance of lapse of virtue on the part of the petitioner. 

It was submitted before the Court that it is a common fact as held by the same court in Sandha v. Narayanan, 1999 SCC OnLine Ker 64 that to constitute an act of adultery, there should be a continuous course of conduct or living in the state of quasi-permanent union with the adulterer, and in the case of unchastity or a few lapses of virtue, it will not prevent a wife from claiming maintenance from her husband. As there was no evidence to prove the continuation of adultery, the revision petitioner had stated the judgment of the Family Court to be legally unsustainable.

It was further contended that the Family Court Judge failed to consider the status of her employment in light of Chaturbhuj v. Sitabhai, (2008) 2 SCC 316 that the term “unable to maintain herself” means the inability of the wife to maintain herself in the same manner in which she used to live with her husband, and will not take into consideration the efforts of the wife to maintain herself after desertion. The petitioner provided a certificate as evidence that she was not employed as staff but was kept as a data entry operator apprentice and was only given money to manage the expenses for bus charges, etc.

Owing to the aforementioned contentions, this Court directed the Family Court to reconsider the case in detail by hearing both the sides, and pass an order disposing of the case, without any delay within a period of three months from the date of production of a certified copy of this judgment. [Faseela v. Shafeek, RP (FC) No. 115 of 2019, decided on 23-05-2019]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of A.M. Shaffique and N. Anil Kumar, JJ. dismissed a matrimonial appeal filed by the husband of a lady who was granted a divorce by the Family Court on the grounds of cruelty and desertion.

Respondent herein had filed a petition against her husband (appellant herein) before the Family Court, seeking divorce alleging cruelty and desertion. The contention urged by the respondent was that the appellant was demanding her to bring patrimony and she had to suffer cruelty at the hands of the appellant on account of such demands. Apart from this, the appellant also demanded her parents to sell the property which was allotted to her share in the will executed by her parents. Further, she was asked to perform perverted sex against her liking. As a result, she left the matrimonial home and started living separately since 30-12-2005. She also had a case that no attempt had been made by the appellant after the said date to take her back to the matrimonial home, and he had also not taken care of her or their child’s interest in any manner. Thus, such acts amounted to desertion for more than 2 years.

The Family Court after evaluating the evidences found that the wife was successful in proving cruelty and therefore she was entitled to a divorce. It was also found that the husband had deserted the wife and the child for more than two years and therefore the wife was entitled to divorce on the ground of desertion as well. Aggrieved thereby, the appellant filed an appeal.

Counsels for the appellant, Sebastian Champapilly, Annie George and Kurian Antony Edassery, argued that there was no material to prove any form of cruelty being meted out against the respondent. Further, it was contended that the respondent had left the matrimonial home without the knowledge and approval of the appellant. She had also not stated any specific reason for remaining away from the matrimonial home and therefore the allegation of desertion was not proved.

Whereas, counsel appearing for the respondent-wife, R. Reji, submitted that the court below had relied upon sufficient material to arrive at the finding that the wife had been subjected to severe cruelty and thus was justified in granting a divorce.

The Court held that “There is no perversity or illegality in the said finding warranting any interference.” As far as the appellant placed reliance upon certain photographs to prove that the couple had been leading a happy married life, the Court observed that “At the time of taking the photographs, they seem to be in a happy mood but that by itself does not mean that the couple was leading a happy married life, and there was no demand for patrimony.”

It was observed that the Family Court had placed reliance upon sufficient material to arrive at a finding that the appellant-husband had ill-treated his respondent-wife, which amounts to mental and physical cruelty. There was no reason to interfere with the said finding of fact, and there was no perversity or illegality in the said finding warranting any interference of this Court.

In view of the above, it was held that the matrimonial tie between appellant and respondent was irretrievably broken and there was no chance for a reunion. Thus, the appeal was dismissed. [Anish Jacob v. Rinku Jacob, 2019 SCC OnLine Ker 2210, decided on 21-05-2019]

Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Alok Singh and Ravindra Maithani, JJ. contemplated the present appeal filed by the appellant-husband, where the order passed by the Family Court dismissing a suit for divorce was challenged. 

Factual matrix of the appeal was that marriage was solemnized between the parties in 2007. The appellant contended that the alleged behavior of the respondent – wife was not good towards the husband and his family members. Marriage was solemnized against the wishes of the respondent. She threatened them to implicate in a false case of dowry and treated them with cruelty. It was further contended that a divorce petition on the said grounds of cruelty was filed by the appellant and was subsequently dismissed by the trial Court. Appellant sought dissolution of marriage mainly on two counts viz. cruelty and desertion.

P.K. Chauhan, Advocate for the appellant submitted that the learned trial Court failed to appreciate the evidence available on record in the right perspective and had attained a wrong conclusion. Thus, impugned judgment and decree was liable to set aside and decree of divorce was to be granted. 

The Court placed reliance on the judgments of Supreme Court in Ramchander v. Ananta, (2015) 11 SCC 539 and Adhyatma Alwar v. Adhyatma Bhattar Sri Devi, (2002) 1 SCC 308, where the Court explained the scope of ‘cruelty’ and ‘desertion’. 

The Court observed that in the present case, in order to prove cruelty at the hands of wife, the appellant stated that the respondent used to quarrel with him. She maltreated him and his family members. It was alleged that she threatened them to implicate in false case of dowry. The Court further found no evidence to prove desertion or cruelty by the respondent as was stated in the plaint. The Court stated that, the appellant made bald allegations against the respondent. Appellant failed to point out the cause of quarrel. It was further noted that, respondent did not want to marry him but in the statement on oath he himself admitted that he did not want to marry with her. Appellant stated that their marriage was solemnized without any dowry but his father himself contradicted his statement. He stated that respondent’s father gave Rs 30,000 – 40,000 in the marriage. Court took note that appellant husband had completed his B.Sc. but was still unemployed and hence the conduct of the appellant revealed that appellant was not interested to shoulder his responsibility. Court concluded that appellant has failed to prove cruelty and desertion at the hands of respondent – wife. Accordingly, appeal failed and was dismissed. [Deepak Kumar v. Meena, 2019 SCC OnLine Utt 546, decided on 01-07-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Sudhanshu Dhulia and Ramesh Chandra Khulbe, JJ. entertained an appeal by the appellant-wife under Section 19 of Family Courts Act, 1984 against the impugned judgment granting divorce passed by Principal Judge of Family Court.

Facts giving rise to this appeal were, the respondent had filed a suit earlier under Section 13 of Hindu Marriage Act, 1955 which was decreed already. When the marriage was solemnized between the parties, the respondent was working as a Sepoy in the Indian Army and it was a smooth sail for both of them. Subsequently, respondent-husband filed for divorce and for dissolution of marriage on the grounds that appellant was suffering from epilepsy prior to marriage and such essential fact was not disclosed to him, the appellant also suffered from different ailments which served as a hindrance, physically and mentally in their prosperous marriage. But the actual ground on which suit was filed for divorce was cruelty and desertion.

The Court observed that parties are living separately for a long time, the issues framed by the Family Court were sufficient to grant a divorce in this particular case. It was also observed that the Family Court found that appellant suffered from epilepsy and was treated for the same in addition to it she also suffered from tuberculosis, and such physical suffering of the appellant served as mental cruelty upon the husband. The expert opinion stated that due to such ailments the appellant was not in a fit state to conceive a child. The Court appreciated that such ailments were not relevant grounds to prove cruelty and to dissolve the marriage prime facie but non-disclosure of such important facts before marriage led to cruelty which is a proper ground for divorce.

The Court stated that there was enough evidence before the court below to establish that there was cruelty on the part of the appellant/wife, such as threatening the husband to falsely implicate in criminal cases and making a complaint to the superior officers of the husband. The wife had also made unnecessary allegations against the respondent before the Commanding Officer, which lowered his esteem in the eyes of his superior officer.

Hence, the Court awarded permanent alimony and disposed the application of maintenance under Section 125 CrPC, it also found that there was no need to interfere with the Order of Family Court and setting aside the divorce decree.[Himani v. Rohit Bisht, 2019 SCC OnLine Utt 448, decided on 13-05-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Sanjeev Sachdeva, J. disposed of a petition holding that the petitioner (wife) was not entitled to maintenance under Section 125 CrPC for a period prior to the grant of divorce.

The petitioner and the respondent (husband) were married. They were living separately since 2004. Divorce was granted in 2015 on an application filed by the respondent on the ground of mental cruelty and desertion by the wife. The decree of divorce was upheld by the Supreme Court. Prior to that in 2007, the petitioner had applied under Section 125 CrPC for interim maintenance. By the impugned judgment, the trial court dismissed the application for maintenance on petitioner’s failure to show that she had sufficient cause to live separately.

S.K. Srivastava and Gurjeet Singh, Advocates for the petitioner assailed the impugned judgment while Senior Advocate Kirti Uppal with Sidharth Chopra and Shaini Bharadwaj, Advocates representing the respondent supported it.

The High Court referred to Section 125(4)which states that wife is not entitled to receive maintenance is not entitled to receive maintenance if without any sufficient reason she refuses to live with her husband. Relying on Rohtash Singh v. Ramendri, (2000) 3 SCC 180, the Court held that as the divorce decree was passed on ground of desertion which was upheld by Supreme Court, the petitioner was clearly disentitled to maintenance under Section 125. However, it was cleared that she could still file application for maintenance provided she is able to satisfy the condition of Section 125(1)(a) that she is unable to maintain herself. [Archita v. Sunil Seth, 2019 SCC OnLine Del 6484, Order dated 11-01-2019]

Case BriefsHigh Courts

Chhattisgarh High Court: A Single Judge Bench comprising of Goutam Bhaduri, J. dismissed an appeal filed against the order of the lower court regarding a divorce suit filed by the appellant/husband on the ground that the respondent/wife deserted him.

In the present case, it has been stated that, after the marriage of appellant and respondent, the respondent got an opportunity of a job and was selected as an Assistant Professor in the Education Department and she had to join her posting somewhere else other than her place of matrimonial home. Further, the husband suggested the wife not to join her place of posting, but she did not hear the advice and however supported by her family members and without the consent eventually, she joined her job at other place. It was pleaded for this very reason, that the wife deserted the husband, therefore, the marriage be annulled by a decree of divorce under Section 13(1)(i-b) of Hindu Marriage Act.

“Husband was completely depending as a parasite on his mother and father, therefore, despite the fact that the husband was agreed for his wife to join the job, he could not oppose.”

The Court below found no ground to hold that the wife had deserted the husband, therefore, dismissed the petition, which lead for the instant appeal.

The High Court on considering the circumstances and submissions of the present appeal, concluded its decision while stating that,

“When the girl is well educated, it is not expected that she would be kept in a boundary of matrimonial obligation only in confinement. It is for the husband and wife to balance the marital ties, which they are duly bound to do for each other”.

The Court while referring to the Supreme Court decision in Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676, in which it was observed that “wishes of the husband to throw a choice to the wife to hear to his wishes to make a choice” as has happened in this case will slaughter her core identity. Therefore, the husband and wife are to be equally treated and if the wife opted to join the job at different place, she cannot be otherwise forced at the behest of the husband or his family members to remain at her matrimonial home alone.

Thus, the grounds stated by the appellant in regard to desertion cannot be entertained as the job against the wishes of the husband does not justify the claim that the wife has deserted and except that no ground of mental cruelty has been pleaded or evidence has been adduced. The appeal was accordingly dismissed. [Hemant Parasar v. Kamini Parasar,2018 SCC OnLine Chh 663, order dated 26-11-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Mangesh S. Patil, J. dismissed a husband’s challenge to the award of compensation to his divorced wife granted by the Additional Sessions Judge.

The appellant-husband and respondent-wife were married in 2003. Subsequently, they developed discord and the wife left the husband alleging harassment. The husband filed petition for restitution of conjugal rights which was allowed. However, even after that, the parties couldn’t live together. Thereafter, the husband filed a divorce petition on grounds of desertion by the wife. The said petition was allowed and the marriage between the parties was dissolved, which decree had become final. Subsequent to that, the wife filed an application for maintenance under Section 125 CrPC. The application was rejected by the Judicial Magistrate; however, on appeal, the Additional Session Judge allowed the same. Aggrieved by the order of the Additional Sessions Judge, the husband had filed the present petition.

The High Court perused the record and found that the facts stated above were the admitted position of the parties. Marriage between the parties was indeed dissolved by a decree of dissolution which had become final. The question before the  Court was whether, under Section 125 CrPC, the Court could grant maintenance to a wife who was divorced on grounds of desertion. For adjudication, the Court relied on the Supreme Court decision in Rohatash Singh v. Ramendri, 2000 (3) SCC 180  wherein it was held that even such a wife can claim maintenance under the section; however, it would be available to her only from the date on which decree for dissolution of marriage had been passed. Accordingly, the husband’s challenge to award of maintenance granted to the wife was dismissed. However, it was held that the wife would be entitled to maintenance only from the date of divorce decree, and not from the date of filing of an application under Section 125 as held by the Additional Sessions Judge. The petition was disposed of in the terms above. [Dnyaneshwar Eknath Kachre v. Sunita,2018 SCC OnLine Bom 2243, dated 24-08-2018]

Case BriefsHigh Courts

Chhattisgarh High Court: An appeal filed challenging the decision of the District Judge whereby he dismissed appellant’s petition filed under Section 13 of Hindu Marriage Act, 1955, was dismissed by a Single Judge Bench comprising of Sharad Kumar Gupta, J.

Brief facts of the case were that the appellant-husband filed a divorce petition against the respondent-wife on the grounds of cruelty and desertion. The said petition was dismissed by the learned District Judge holding that the grounds on which divorce was sought by the petitioner (appellant) were not proved. The appellant filed the instant appeal challenging the said decision contending that the trial court did not examine the evidence in proper perspective and reached a wrong conclusion.

For deciding the appeal, the Court referred to various decisions of the Supreme Court as well as other High Courts and observed the essence of ‘desertion’- For the offence of desertion, two essential conditions must be there; (1) the factum of separation and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Two elements are essential as far as deserted spouse is concerned; (1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial house to form the necessary intention. Mere severance of relation or separation without desertion is not sufficient. Desertion is not walking out of the house but is withdrawing from home. Desertion consists in withdrawing not from a place but from a state of things.

In regard to ‘cruelty’, the Court observed that a consistent course of conduct inflicting immeasurable mental agony and torture constitute cruelty within the meaning of Section 13(1)(ia) of HMA. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

The Court held that the appellant failed to prove any of the elements to establish desertion or cruelty on the part of the respondent. No cogent evidence was provided by the appellant that could establish the grounds for divorce as prayed for by the appellant in the divorce petition. Thus, the Court on dismissing the appeal held that the impugned judgment of the trial court which was challenged in this appeal does not suffer from any infirmity. [Sanjeev Kumar Kaushik v Mongra Bai, 2018 SCC OnLine Chh 480, dated 24-04-2018]