The Delhi High Court has held that if a husband is living with another woman when the couple has been in separation it would not be construed as cruelty.

The Court was deciding an appeal under Section 19 of the Family Court Act, 1984 read with Section 96 of CPC filed by a woman (wife/appellant) challenging the judgment granting divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955 to the respondent/husband.

A Division Bench comprising Justice Suresh Kumar Kait and Justice Neena Bansal Krishna observed, “… the allegations of appellant-wife are that the respondent-husband had got married. However, neither any specific details nor any proof whatsoever of the alleged second marriage has been tendered on record or given in the complaints mentioned above. Even if it is accepted that the respondent-husband has started living with another woman and has two sons during the pendency of Divorce Petition, that in itself, cannot be termed as cruelty in the peculiar circumstances of this case when the parties have not been co-habiting since 2005.”

The Bench said that after such long years of separation with no possibility of re-union, the respondent/husband may have found his peace and comfort by living with another woman, but that is a subsequent event during the pendency of the Divorce Petition and cannot disentitle the husband from divorce from the wife on the proven grounds of cruelty.

Advocate R.K. Bali appeared on behalf of the appellant/wife while Advocate Sahil Malik appeared on behalf of the respondent/husband.

Brief Facts -

The appellant and respondent got married in the year 2003 according to Hindu customs and rites and no child was born from the said wedlock. The respondent i.e., the husband asserted that their marriage was simple and dowryless. The appellant i.e., the wife came to reside in the matrimonial home but merely two days after the marriage, she started complaining that she felt suffocated in the joint family which comprised of her husband, his parents and brother.

The appellant insisted that separate residence from the family members be set up. She also insisted to take premises where her brother-in-law was residing. The efforts of the respondent to dissuade his wife from setting up a separate residence did not meet any success. The respondent asserted that the appellant refused to have physical relationship and always refused to his advances by calling him imponent. She also took abortion after getting pregnant and the couple started living separately.

The High Court in view of the above facts noted, “Such prolonged differences and criminal complaints made the life of respondent-husband bereft of peace and conjugal relationship which is the bedrock of any matrimonial relationship. Thus, it can be held that this conduct of appellant-wife indisputably amount to cruelty, as observed by the learned Judge, Family Courts.”

The Court said that the appellant has not been able to prove any other act of cruelty by the respondent disentitling him from taking divorce.

“The first complaint of alleged marriage of the respondent-husband to a second woman i.e. Pinki has been made in April, 2018 at the time when the Divorce Petition was pending before the learned Judge, Family Courts. No application was filed for leading additional evidence to prove the allegations made in the said complaint. Further, though a copy of the complaint under Section 200 CrPC has been filed but no details have been given if this complaint was ever filed before the Court and what was the fate of the said complaint”, further noted the Court.

The Court, therefore, concluded that the Family Court has in detail considered all the incidents and has rightly held that the appellant had subjected the respondent to cruelty.

Accordingly, the High Court dismissed the appeal.

Cause Title- Sushila v. Joginder (Neutral Citation: 2023:DHC:6636-DB)

Click here to read/download the Judgment