The Allahabad High Court observed that once cruelty is proved, the suit for divorce must be decreed and the suit for restitution of conjugal rights must be dismissed.

The Lucknow Bench observed thus in a batch of appeals under Section 19(1) of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 (HMA) filed by the husband against the judgment of the Family Court by which the regular suit of husband for dissolution of marriage was dismissed and the regular suit of wife for restitution of conjugal rights was decreed in her favour.

A Division Bench comprising Justice Rajan Roy and Justice Om Prakash Shukla held, “… we have no hesitation in determining that once cruelty was proved, the suit for divorce had to be decreed and the suit of the wife had to be dismissed, subject of course to the provision of Section 13A of Act, 1955, but, the Family Court has erred on facts and law in not doing so. The point of determination is answered accordingly.”

Advocate Rohit Tripathi appeared for the appellant while Advocate D.P. Singh Somvanshi appeared for the respondent.

Facts of the Case -

The appellant was the husband and the respondent was the wife who got married in 1986. Two sons were born out of their wedlock but as per the appellant, after conceiving both sons, his wife was not interested in him at all and started misbehaving with him in front of servants and other members of the family. It was alleged that one day, the wife locked him in toilet and also used to connect/co-relate him with a lady residing next door. She even abused his parents and thereafter, stopped giving food to him.

Since 2003, the wife was living separately with the husband under the same roof and hence, he instituted a suit under Section 13 of HMA for declaring his marriage as null and void. Thereafter, the wife lodged four cases against the husband under Domestic Violence Act, Section 125 of Criminal Procedure Code (CrPC), Sections 498A, 323, 504, 506, and 406 of Indian Penal Code (IPC), and Dowry Prohibition Act. She also instituted a suit for restitution of conjugal rights. As the Family Court decreed the suit in favour of the wife, the husband approached the High Court.

The High Court in the above context of the case noted, “It is apparent that Section 13 of the Act, 1955 provides for grant of divorce and enumerates various grounds on which the same may be granted. It enacts that “any marriage solemnized whether before or after the commencement of this Act’ may be dissolved on petition presented either by the husband or by the wife or any of the grounds specified therein. Clause (i-a) of sub section (1) of section 13 of the Act, 1955 declares that a decree of divorce may be based by a court on the ground that after solemnization of marriage, the opposite party has treated the petitioner with cruelty subject to the State amendments to Section 13 (1) (i-a) in this regard. There are other grounds also mentioned in the said sub section (i) of section 13 of Hindu Marriage Act and each of these grounds are independent of each other.”

The Court added that each of the grounds are mutually exclusive to each other which is evident by use of the disjunctive ‘or’ to separate each ground from the other and there is no reason to read ‘or’ conjunctively as it will lead to absurdity and thus, cruelty can by itself be a ground for dissolution of marriage.

“However, it seems that learned Family Court, after returning a finding that “cruelty” has been inflicted by the respondent-wife on the appellant-husband, refused to grant divorce to the husband presumably on the ground that the ground of “desertion” could not be proved by the appellant-husband”, it said.

Furthermore, the Court noted that instead of allowing the suit for divorce, the Family Court decreed the suit of the respondent for restitution of conjugal rights which is apparently incongruous and irreconcilable with finding on the issue of cruelty recorded in the context of the suit for divorce in favour of the appellant/husband and against the wife. It said that such finding itself constituted a valid ground and a reasonable cause within the meaning of Section 9 of HMA for the husband not to live with the wife and for the Family Court to dismiss the suit of the wife under Section 9 HMA, but this material aspect has been omitted from consideration.

“… it is not a fit case for grant of alternative relief of judicial separation under Section 13A of the Act, 1955. … The marriage between the appellant and respondent is dissolved. Liberty is granted to the respondent to initiate separate proceedings under Section 25 of the Act, 1955 as per law”, it concluded.

Accordingly, the High Court allowed the appeals and set aside the impugned judgment and decree.

Cause Title- ABC v. XYZ (Neutral Citation: 2024:AHC-LKO:40090-DB)


Appellant: Advocates Rohit Tripathi and Syed Zulfiqar Husain Naqv.

Respondent: Advocates D.P. Singh Somvanshi, Saurabh Misra, Ajeet Kumar Singh, and Ved Prakash Verma.

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