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]

Case BriefsHigh Courts

Karnataka High Court: While deciding an appeal filed under Section 28 of the Hindu Marriage Act, 1955, a Division Bench comprising of L. Narayana Swamy, J and Dr. H.B. Prabhakara Sastry, J. dissolved the marriage solemnized between the appellant-husband and the respondent-wife holding that the wife deserted the husband for a continuous period of not less than two years.

The husband filed the petition under Section 13(1)(ib) of HMA against his wife, seeking dissolution of their marriage. The said petition was dismissed by the learned Principal Judge. The appellant contended that the court below committed a serious error even after assessing the evidence of the respondent who categorically stated in her disposition that she did not want to live with the appellant.

The High Court perused the material on record and submissions made in behalf of the parties. The Court found that the respondent in her cross-examination admitted that she resided with her husband for two years after the marriage and she had lived in her parental home after the marriage for about six years. This meant that after her marriage for more than half of the period she lived at her parental home. It was also noticed that even after graduating in her studies she did not join the husband to live with him. The respondent did not give any reason for her living separately from her husband. It was found that in total, the respondent lived separately from her husband for about 16 years, which fact was established. Accordingly the factum of separation was also established.

It was also observed that ‘desertion’ mentioned under Section 13(1)(ib) of the HMA is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state. In the instant case, the wife sated that she was not ready to live with the husband. As such, the animus deserendi on the part of the wife was established.

Accordingly, the appeal was allowed. The impugned order was set aside and the marriage between the parties was dissolved. [Dundappa v. Renuka, MFA No. 21724 of 2010 (MC), order dated 11.10.2017]

Case BriefsHigh Courts

High Court of Delhi: While judging the legality and validity of the divorce decree granted to the husband respondent by the learned trial court, the Bench comprising of Pradeep Nandrajog and Yogesh Khanna, JJ., observed that since desertion is often invoked as ground of divorce however it cannot be tested by merely ascertaining which party left the matrimonial home first but if one spouse is forced by the conduct of the other to leave, the desertion could be by such conduct of other spouse thus, the Court setting aside the divorce granted to a husband/respondent held that the learned Judge, trail court had misread the evidence while granting a decree of divorce on the ground that wife /appellant left the matrimonial home without the consent of her husband thereby deserting him and failed to join his company, despite his repeated requests, thereby committing cruelty upon him by denying him  matrimonial bliss.

The Court while examining the contentions of the parties observed that the trail court had erred in passing the divorce decree as it disbelieved all the allegations lodged against the wife/appellant by the husband/respondent and only on the ground that the wife left the matrimonial home without according any reason, granted the divorce decree. The Court while setting aside the divorce decree observed that since the wife never wished to bring her marital ties permanently to an end but was forced by the conduct of the respondent to leave the matrimonial home and that it is the respondent who is guilty of constructive desertion as he failed to prove the behavior of the appellant towards him was such that it ever caused a reasonable apprehension in his mind that it was not safe for him to continue the matrimonial relations with the appellant. The Court further observed that desertion is not a withdrawal from a place, but from a state of things and it is the repudiation by one of all obligations of marriage and it cannot be tested by merely ascertaining which party left the matrimonial home first.  [Nisha Rani v. Sohan Singh Nehra, 2017 SCC OnLine Del 6404, decided on 6th January 2017]

Supreme Court Cases

Cases Reported in 2014 SCC Vol. 7 August 28, 2014 Part 4

For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. Malathi Ravi v. B.V. Ravi, (2014) 7 SCC 640