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]


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Case BriefsHigh Courts

Gauhati High Court: Hitesh Kumar Sarma, J., while disposing of a criminal revision petition filed against the order of the Additional Sessions Judge, modified the date from which the amount of maintenance was to be paid by the petitioner-husband to the respondent-wife on an application filed by her under Section 125 CrPC.

The parties were married to each other. After about 3-4 months of the marriage, the respondent left the matrimonial home on the pretext of visiting her ailing brother, and never returned. She has been living separately ever since. Subsequently, she filed an application under Section 125 CrPC, claiming maintenance from the petitioner. the case of the respondent was that starting from the very first night of marriage, she was subjected to torture by her husband and in-laws for not bringing a dowry of Rs 10,000 and other property.

The Sub-Divisional Judicial Magistrate held that the respondent was not able to prove her case and therefore, rejected her application. The Additional Sessions Judge, however, reversed that decision and directed the petitioner to pay Rs 1000 per month to the respondent. Aggrieved thereby, the petitioner filed the instant revision petition.

On perusal of the record, the High Court noted: “While there is an allegation of torture on the wife/respondent by the petitioner/husband, the fact remains that she was not driven out by her husband and she left on her own. This fact is not denied by the petitioner/husband and as such remained intact. This Court is also mindful of the fact that the respondent/wife left the company of the petitioner/husband within 2/3 months of their marriage and in the back of her mind, the fact that she was subjected to torture was always playing and the fact of torture evidently is not denied by the petitioner in his evidence.”

On such facts, the Court observed: “Although the respondent/wife left the house tangibly on her own yet the circumstances, as appears from the evidence, are such that the wife/respondent had to leave the house of the petitioner/husband under compelling reasons due to the torture meted out to her although such fact was not disclosed in so many words in her petition. No attempt by the petitioner/husband to take her back and also not providing maintenance during her separate stay for a long time is indicative of lack of persuasion on his part although an effort to persuade would have been the course usually adopted by any husband.”

In the circumstances aforesaid, the High Court was of the opinion that the finding in the impugned order that the respondent was entitled to maintenance was correct. It was, however, held that the petitioner would pay the amount of maintenance as directed, not from the date of application before the Sub-Divisional Judicial Magistrate; but only from the date of order passed by the Additional Sessions Judge. Order was made accordingly. [Pradip Das Sarkar v. Uma Sarkar, 2019 SCC OnLine Gau 5017, decided on 07-11-2019]

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sandeep Mehta and Abhay Chaturvedi, JJ., allowed a Habeas Corpus Petition and allowed the petitioner to stay with his wife, and directing the authorities to provide her with adequate protection.

In the instant case, the corpus, Urmila, a Government teacher posted at Jalore District, was staying at Nari Niketan, Jodhpur expressed her willingness to stay with the petitioner, her husband, with whom she was legally married. However, she conveyed an apprehension that she and her family might be under scrutiny and subject to harassment from the members of the community. The Counsel representing the petitioner, Pradeep Choudhary, thus prayed to the Court for providing adequate measures against such mishaps.

The High Court, in an in-camera proceeding, took into consideration the prayer of the petitioner and directed the police authorities to accompany the petitioner, his wife, and the family till they reach the matrimonial home. The petitioner was also provided an assurance of necessary steps to be taken in case of any untoward incident taking place by the members of the society.[Dinesh Suthar v. State of Rajasthan, 2019 SCC OnLine Raj 1229, decided on 01-07-2019]

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]