READ JUDGEMENT | Mere Demand For Separate House By Wife Not ‘Cruelty’: Karnataka HC Sets Aside Divorce Decree Despite Couple Being Separated Since 15YRS

A division bench of Justice Alok Aradhe and Justice S Vishwajith Shetty thus set aside the decree of divorce granted to a husband on the ground of cruelty and desertion by his wife, despite couple living separately since 2007.

The couple got married in March 2002 as per Hindu rites and customs and a daughter was born to them in June 2003. After wife left home with child and did not return, husband filed for divorce in 2007. A family court in Bengaluru granted divorce to the husband on grounds of cruelty and desertion. 

The wife has now challenged this family court order in Karnataka High Court. 

Husband’s Side

It was the case of the husband that his wife was demanding for setting up a separate house immediately after the marriage and because he had the responsibility of his widowed mother and a younger brother in his house, he had rejected the demand of the appellant for setting up a separate house.

Further, it was said that the wife was in a habit of quarrelling with his family members for no reason and she used to leave the matrimonial house and go to her sister’s house and mother’s house without informing him or his mother or brother. Because of this behaviour and conduct of the wife, his life was made miserable.

In January 2007, the appellant-wife without informing him left the matrimonial home along with the child and there afterwards she did not return back.

Wife’s Argument to Contest Divorce:

The wife had opposed the petition and denied all the allegations levelled against her. 

It was said that the judge of the Family Court has erred in granting a decree of divorce since the husband had failed to prove the ground of cruelty and desertion against the wife. The Family Court has proceeded to allow the petition mainly for the reason that the wife had filed a criminal case against the husband and his relatives.

Further, that the wife had a valid reason to stay away from her husband and therefore it cannot be said that she had deserted the husband. She accused her husband of torturing her for having not brought enough dowry and there afterwards no attempt was made by him to bring her back and instead, he got issued a legal notice immediately there afterwards seeking divorce.

Irretrievable Breakdown in Marriage

The husband has also submitted that the parties have been residing separately ever since the year 2007 and all efforts made for conciliation has failed and therefore, the marriage has irretrievably failed and there is no point in continuing such a marriage.

Further, it was said the wife had left the company of her husband without there being any valid reasons and she is also guilty of filing false complaint against her husband and his relatives only with an intention to harass and coerce them.

Karnataka High Court

Noting the allegations and defense from both sides, the bench was of the opinion that acquittal in 498-A case does not mean husband and his family was not guilty. The bench remarked,

The jurisdictional Magistrate had acquitted the accused persons in the said case (lodged by the wife against the husband) on the ground that the prosecution had failed to prove the guilt of the accused beyond reasonable doubt and therefore, they were entitled for the benefit of doubt. Therefore, it cannot be said that the wife had lodged a false complaint against the husband and his family members.

It added,

Mere filing of a criminal case itself cannot be termed as “cruelty”. For the purpose of Section 13(1)(ia) of the Act, “cruelty” could be wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger.

Husband failed to prove desertion

According to the high court, the husband was unable to prove by examining any independent witness that his wife was in the habit of leaving the matrimonial house and she used to go to her sister’s and parents’ house without informing him.

It also relied on Om Prakash v. Rajni where the Delhi High Court has held that demand by the wife for a separate residence would not amount to “cruelty” in all cases.

The bench further observed,

Without animus deserendi there can be no desertion within the meaning of Section 10(1)(a) of the Act. In the present case, the husband has failed to prove that the wife had intention to put an end to the marital relation and cohabitation and on the other hand, the material on record would go to show that she and her family members had made all efforts to join the husband, but they were all in vain.

The Karnataka High Court thus set aside the judgement and decree passed by the court of IV additional Principal Judge, Family Court at Bangalore, dated 15th March 2016.

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