Allegations Of Extra-Marital Relationship If Proved Have Direct & Substantial Bearing On Issue Of Desertion: Karnataka High Court Sets Aside Divorce Decree

The Bench observed that the husband failed to provide independent evidence or witnesses to prove his allegations of mental cruelty, such as the wife’s claim that he suffered from HIV/AIDS.

Conversely, the Court highlighted that the wife’s application to produce additional evidence—purportedly proving the husband had fathered children with another woman—went to the "root of the matter," as such an illicit relationship would legally justify her decision to live separately and negate the charge of desertion.

​The Division Bench of Justice Suraj Govindraj and Justice Chillakur Sumalatha observed, “The evidentiary significance of such material cannot be understated. Allegations of an extra-marital relationship, if proved, have a direct and substantial bearing on the issue of desertion. A spouse cannot be compelled, either in law or in equity, to cohabit with a partner who is simultaneously maintaining a relationship with another person. In such circumstances, the refusal of the wife to join the husband would not only be justified but would also negate any inference of animus deserendi…Conversely, a finding of desertion in favour of such a spouse would result in placing a premium on conduct which the law does not countenance.”

Advocate Hanamanthraya Sindol appeared for the Appellant, while Advocate Neeva M. Chimkod appeared for the Respondent.

Factual Background

The appellant-wife challenged the judgment of the Principal Senior Civil Judge and CJM, Bidar, which dissolved her marriage. She sought to set aside the decree of divorce and requested the recovery of lower court records along with legal costs.

The respondent-husband initiated the original petition for divorce. While the marriage and the birth of two sons were admitted, the husband alleged that the wife deserted him without cause. He contended that despite his efforts to seek restitution of conjugal rights, the wife refused to join him at his place of posting and instead made defamatory allegations regarding his character and health, specifically claiming he suffered from HIV/AIDS.

The wife contested the petition, alleging that the husband’s cruelty, dowry demands, and illicit relationship forced her to live with her parents. She further noted that she had filed for maintenance as the husband failed to support the family.

The Family Court found the wife's allegations of HIV/AIDS and infidelity to be unsubstantiated and held that such baseless accusations constituted mental cruelty. The Court also determined that the wife’s refusal to reside with her husband amounted to desertion. Consequently, the trial court granted the decree of divorce, leading to the present appeal.

Contention of the Parties

The wife argued that the Family Court applied a double standard by accepting the husband’s oral testimony while rejecting the wife's claims for lack of documentary proof. It was contended that since neither party produced documents at trial, the husband's version should not have been upheld without independent corroboration. Furthermore, she asserted there was no third-party evidence to support the allegations of vulgar language or cruelty attributed to the wife.

It was further alleged that the husband was cohabiting with another woman prior to filing for divorce. She maintained that such misconduct provided the wife with a justifiable reason to live separately, thereby negating the charge of desertion. To support this, an application for additional evidence was filed, including school records and photographs purportedly proving the husband had fathered children with another woman. She submitted that these facts fundamentally undermined the grounds upon which the divorce was granted.

Observations of the Court

The High Court formulated several key points for determination: whether the husband’s allegations of cruelty could be accepted without independent evidence; whether the finding of desertion was valid if the husband was cohabiting with another woman; and whether the decree of divorce suffered from legal infirmity.

The Court observed that the husband’s case rested on allegations that the wife and her parents subjected him to ill-treatment and made stigmatic claims that he suffered from HIV/AIDS. While the Court acknowledged that such accusations would constitute mental cruelty under the Hindu Marriage Act, it found that the husband failed to prove these claims. The husband only examined himself and produced no documentary evidence or independent witnesses, such as neighbors or relatives, to corroborate his testimony.

The Court held that the Family Court erred by applying inconsistent evidentiary standards. It noted that the lower court rejected the wife’s claims for lack of evidence but accepted the husband’s uncorroborated assertions. The Court ruled that where allegations are of a grave and serious nature, a degree of corroboration is required. Since the husband failed to discharge the burden of proof, the finding of cruelty was deemed unsustainable.

Regarding desertion, the High Court emphasized that the concept required both physical separation and the intention to end the marriage (animus deserendi) without reasonable cause. The wife contended that her separation was not voluntary but was compelled by the husband’s relationship with another woman. The Court noted that if a spouse provides a justifiable reason for living separately, the charge of desertion cannot stand.

“In light of the above discussion, we are of the considered opinion that the finding of the Family Court on desertion is vitiated by an incomplete appreciation of the material issues and requires reconsideration. The plea raised by the wife, coupled with the additional material sought to be produced, goes to the root of the matter and cannot be brushed aside without a proper evidentiary inquiry”, the Court said.

The Court took serious note of an application for additional evidence filed by the wife, which included a school admission record for a child born to the husband and another woman. The Court observed that if these documents were proven, it would indicate the husband was fathering children with another woman during the subsistence of the marriage. Such conduct would justify the wife’s refusal to cohabit and negate any claim of desertion.

Conclusion

The Court concluded that the Family Court’s judgment was vitiated by errors in the appreciation of evidence and the application of legal principles. It held that the findings were based on insufficient material and reflected a biased application of evidentiary thresholds. The Court emphasized that an appellate court must interfere when findings are based on no evidence or when relevant material is ignored to prevent a miscarriage of justice.

Consequently, the Court allowed the appeal and remitted the matter for fresh consideration to ensure a proper evidentiary inquiry.

Cause Title: W v. H [Neutral Citation: 2026:KHC-K:3775-DB]

Appearances:

Appellant: Advocate Hanamanthraya Sindol

Respondent: Advocate Neeva M. Chimkod

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