Allahabad High Court: In an appeal filed by a husband under Section 19 of the Family Courts Act, arising from judgment and order passed by Ist Additional District Judge, Ghazipur in Divorce Petition, whereby the Court has dismissed the divorce suit instituted by him, the division bench of Saumitra Dayal Singh and Donadi Ramesh, JJ. while setting aside the impugned judgment, dissolved the marriage between the parties, and said that given that the parties have lived separately for more than 23 years and barely cohabited during their 35 years of marriage, it is evident that the wife is unwilling to revive the matrimonial relationship. Her refusal to live with the husband may itself constitute an act of cruelty, as it appears she is only seeking to maintain the legal fiction of marriage, without any substantial reason to continue the relationship. This conduct of the wife may be seen as contributing to the irretrievable breakdown of the marriage.
The Court noted that the parties were married in 1990, with the ‘Gauna’ ceremony taking place in 1992. They had a child in 1995 but lived together intermittently, with the husband claiming they cohabited for only 8 months until December 1996. The wife, however, asserts that they lived together intermittently until August 2001. After 23 years of separation, their child is now 29 years old, and no proceeding for restitution of conjugal rights has been initiated by the wife. The husband alleged cruelty on the part of the wife, primarily citing her independent behavior, such as traveling without observing ‘Parda’.
The Court did not accept these actions as cruelty, as both parties are educated, and differences in behavior and perception do not meet the legal definition of cruelty. The Court noted that the husband also accused the wife of verbally insulting him due to his poor economic status, but no specific details or evidence were presented to support this claim.
Moreover, the Court noted that the husband alleged that the wife had an immoral relationship with a person referred to as “Punjabi Baba”. However, no credible evidence was presented to substantiate this claim, and there was no proof of such an adulterous relationship. The only fact that could be established was that “Punjabi Baba” had lived in the husband’s residential colony, but he had been forced to leave due to protests from other residents. There was no proof that the wife had any immoral or adulterous relationship with him, and the District Judge rightly dismissed this claim due to the lack of evidence.
The Court remarked that difference of perception towards life may give rise to different behaviours by individuals. Such a difference of perception and behaviour may be described as cruel by others by observing the behaviour of another. At the same time, such perceptions are neither absolute nor such as may themselves give rise to allegations of cruelty unless observed and proven facts are such as may be recognized in law to be acts of cruelty.
The Court highlighted that the act of the wife being free-willed or a person, who would travel on her own or meet up with other members of the civil society without forming any illegal or immoral relationship, may not be described as an act of cruelty committed, in these facts.
Noting that the other act of cruelty attributed to the wife, is of causing verbal insults to the husband for reason of his poor economic status, the Court said that the parties have, for the most part, maintained normal relations during their marriage, but the alleged acts of insults by the wife were not supported with details of time or place, nor were they proven in court. As a result, the Court found no error in the District Judge’s decision not to act on the husband’s claim of insults.
The Court also noted that in terms of cohabitation, the husband provided clear evidence that the parties had barely cohabited between 1990 and 1995, the period during which their child was born. The wife admitted to living separately but visiting her matrimonial home intermittently, with her last visit occurring in 1996 for her son’s ‘Mundan’ ceremony. The period from 1996 to 2001 is disputed: the husband claims no cohabitation, while the wife asserts that she lived with him until 2001. However, no credible evidence was presented to support the claim of cohabitation after 1996, and no evidence was provided to suggest the parties lived together within two years of the divorce suit being filed in 2001. Since the filing of the suit, the parties have remained separated for 23 years, and mediation attempts have failed.
The Court said that given that the parties have lived separately for more than 23 years and barely cohabited during their 35 years of marriage, it is evident that the wife is unwilling to revive the matrimonial relationship. Her refusal to live with the husband may itself constitute an act of cruelty, as it appears she is only seeking to maintain the legal fiction of marriage, without any substantial reason to continue the relationship. This conduct of the wife may be seen as contributing to the irretrievable breakdown of the marriage.
After referring to Rakesh Raman v. Kavita, 2023 AIR (SC) 2144, the Court concluded that the finding recorded by the Court below as to mental cruelty, cannot be sustained.
The Court said that the husband may claim mental cruelty on the grounds of desertion by the wife, who has willfully abandoned the husband for an extended period, now exceeding 23 years. The wife’s refusal to cohabit with the husband and her failure to seek restitution of conjugal rights further solidify the claim of desertion. This wilful act of the wife and her refusal (even now) to cohabit with the husband to revive her matrimonial relationship appears to be an act of desertion committed of degree as may itself lead to dissolution of her marriage.
The Court noted that the wife has not only refused cohabitation with the husband, but she has also never made any effort to seek restitution of her conjugal rights.
Regarding permanent alimony, the Court noted that both parties are gainfully employed, and their only child, now 29 years old, remains in the custody of the wife. No request for permanent alimony was made, nor was there any need to provide for it under the circumstances.
The Court concluded by allowing the appeal and setting aside the impugned judgment and order.
[Mahendra Prasad v. Bindu Devi, 2024 SCC OnLine All 7729, decided on 10-12-2024]
Advocates who appeared in this case:
Counsel for Appellant: Sankatha Rai,S.N. Pandey
