Accusation Of Relationship With Other Person Is Mental Cruelty & Reasonable Cause For Wife To Live Apart: Karnataka High Court Upholds Dismissal Of Husband's Divorce Plea

The High Court was considering an appeal filed under Section 19(1) of the Family Courts Act, 1984, by the husband, calling in question the judgment of the Family Court dismissing his petition filed under Section 13(1(b) of the Hindu Marriage Act, 1955, seeking divorce on the ground of desertion.

The Division Bench of Justice Jayant Banerji and Justice T.M.Nadaf held, “The party litigant has to prove his case on the strength of his own by substantial evidence to discharge the onus cast on him, irrespective of the question whether the other side has contested the case or not. A party who has approached the Court has to establish his case on his own, otherwise he is not entitled for any relief sought in his petition. In the case on hand as rightly observed by the trial Court, mere accusation of relationship with some other person itself is a mental cruelty and perhaps is the reasonable cause for the wife to live apart.”

Advocate K S Ganesha represented the Appellant, while Advocate Archana K.M. represented the Respondent.

Factual Background

The marriage between the petitioner husband and the respondent wife was solemnised in the year 2011 as per Hindu rites and customs. They were blessed with a female child. As per the Petitioner husband, the respondent wife, after the birth of the child, without there being any reason, started visiting her parental house and refused to return. This made the petitioner go to her place and bring her back. When the petitioner joined his work at Hassan, the respondent insisted for separate house, and the petitioner arranged for the same. The petitioner stated that the respondent, during the stay, contacted another man and both of them started to meet frequently. When the petitioner learnt about the exchange of messages on the mobile phone, the respondent promised to discontinue her relationship with the man. However, the respondent left the matrimonial home in April 2015, when her extramarital relationship was discovered by the petitioner.

Thereafter, the respondent filed a criminal case against the petitioner for the offences punishable under Section 498A of the Indian Penal Code, 1860 (IPC) and Section 3 and 4 of the Dowry Prohibition Act, 1961 (DP Act). A case was registered, and subsequent to investigation, the Police filed a charge sheet. The Criminal case after trial ended in an acquittal. The petitioner issued a legal notice calling upon the respondent to come and join the marital life. The respondent, despite service of notice, neither replied nor complied with the demand made in the notice. Having left with no other alternative, the petitioner husband filed a petition under Section 13(1)(b) of the HM Act for dissolution of marriage on the ground of desertion. On service of notice, the respondent remained absent and was placed ex parte. The Trial Court dismissed the petition.

Reasoning

The Bench, at the outset, explained that mere living separately for a considerable period of time may not amount to desertion. “What is important to be proved is the animus for separate living attributable on the party/spouse living apart. Though the respondent has been placed ex-parte, there is no cogent evidence placed by petitioner to substantiate his claim of desertion by the respondent”, it added.

The Bench noted that the Trial Court had clearly stated that despite taking the contention that the respondent was having extra marital relationship, the petitioner failed to prove the same by leading substantial evidence and by producing substantial proof in line with such statement and further observed that the allegation of extramarital relationship without proof would operate as mental cruelty and perhaps this may be the reason for the wife to live apart.

“We find force in the arguments advanced by Smt.Archana that, the desertion in the absence of animus with the spouse living apart for considerable years in the case on hand since 2015, will not be termed as desertion within the meaning stated under Section 13(1)(b) of HM Act. The explanation appended to the said provision is very specific and clear that desertion means a party to the marriage living apart without there being any reasonable cause and without consent or against the wish of other spouse. As rightly held by the trial Court, there is nothing on record in proof of such animus with the respondent to live apart depriving the petitioner of marital happiness”, the Bench noted.

The Bench was of the view that the Trial Court, having considered the entire material placed before it, dismissed the petition, on the failure of the petitioner-husband to prove the ingredients of desertion as a ground for dissolution of marriage, with valid reasons. Thus, the Bench dismissed the appeal.

Cause Title: A v. B ( Case No.: MISCELLANEOUS FIRST APPEAL NO. 918 OF 2021 (FC))

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