Court’s Decision
The Himachal Pradesh High Court at Shimla, through Justice Vivek Singh Thakur, dismissed a husband’s appeal under Section 28 of the Hindu Marriage Act, 1955, challenging the District Judge’s refusal to grant divorce on the grounds of cruelty and desertion under Section 13(1)(ia) and (ib).
The Court held that the husband had failed to prove either cruelty or desertion, observing that he had entered into a second marriage and fathered a child, thereby disentitling himself from alleging desertion. The Judge emphasized:
“When the husband himself solemnizes another marriage and begets a child, the wife’s decision not to live with him cannot, by any stretch of imagination, be termed desertion or cruelty.”
Accordingly, the Court upheld the trial court’s findings and dismissed the appeal, reiterating that the husband’s conduct itself constituted cruelty towards the wife.
Facts
The marriage between the parties was solemnized on 30 May 1993 at Shimla according to Hindu rites. The couple started living separately in January 1994.
The husband alleged that his wife could not adjust to village life in Tattapani after being brought up in urban Shimla and voluntarily left the matrimonial home. He claimed to have made several efforts — including visits with relatives and panchayat members — to bring her back, but she refused.
The wife, however, contended that the husband had abandoned her at her parental home in Shimla and never came to take her back. She further alleged that he had contracted a second marriage and fathered a daughter named Kajal, born on 5 March 1996, without obtaining divorce or her consent.
In 2001, the wife approached the Himachal Pradesh Women Commission, seeking return of her jewellery and maintenance. The husband allegedly agreed to return her dowry items but never complied. Subsequently, in 2003, she filed a maintenance petition under Section 125 Cr.P.C., which was allowed in 2006 with ₹3,000 per month maintenance, later upheld in revision by the Sessions Court.
The husband filed the divorce petition in 2008, claiming cruelty and desertion.
Issues
- Whether the wife had treated the husband with cruelty as alleged.
- Whether the wife had deserted the husband without reasonable cause.
- Whether the husband’s subsequent marriage and conduct disentitled him from claiming divorce.
Petitioner’s Arguments
The husband’s counsel argued that the wife had deserted him without just cause since January 1994 and had refused reconciliation. He claimed she was unwilling to live in a small town and voluntarily withdrew from his company.
It was further argued that her refusal to resume cohabitation and her categorical statement before the court that she was “not ready to live with the husband and there was no possibility of compromise in the future” amounted to cruelty and mental agony.
Reliance was placed on several Supreme Court and High Court decisions including:
- Kamaljit Bhullar v. Nimrat Preet Singh Bhullar (1991 (1) SLC 156);
- Rishikesh Sharma v. Saroj Sharma (2006) 3 SCC 389;
- Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511;
- Vinod Kumar Subbiah v. Saraswathi Palaniappan (2015) 8 SCC 336; and
- Narendra v. K. Meena (2016) 9 SCC 455.
He contended that prolonged separation of more than 30 years and total breakdown of marriage justified dissolution under the “irretrievable breakdown” principle.
Respondent’s Arguments
The wife’s counsel refuted all allegations, asserting that the husband was the one who deserted her and subsequently married another woman. She highlighted that she had made repeated attempts, through relatives and local elders, to reconcile, but he refused.
She also argued that the allegation of illicit relationship made by the husband in his reply to the maintenance petition amounted to character assassination and mental cruelty. She maintained that her refusal to live with him was due to his second marriage and ongoing cruelty, not desertion.
Analysis of the Law
The Court reiterated that cruelty under Section 13(1)(ia) encompasses both physical and mental cruelty, and desertion under Section 13(1)(ib) requires both the factum of separation and intention to abandon (animus deserendi).
Relying on Section 23(1)(a) of the Hindu Marriage Act, the Court stressed that a petitioner cannot take advantage of his own wrong. A spouse who has remarried or engaged in extramarital relations cannot claim to be a victim of desertion.
The Court also drew attention to the family register (Ex. RW-1/A), which confirmed that the husband had fathered a daughter in 1996, establishing that he had been in a relationship since at least 1995.
Justice Thakur observed that the husband’s false accusations of infidelity, coupled with his own conduct of remarrying, amounted to mental cruelty towards the wife.
Precedent Analysis
- Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 – Laid down broad parameters for determining mental cruelty, including conduct causing humiliation or mental pain. The Court noted that the husband’s unfounded allegations and remarriage squarely met this test.
- Narendra v. K. Meena (2016) 9 SCC 455 – Held that false allegations or refusal to live with a spouse can amount to cruelty, but distinguished here since the husband’s own misconduct was the cause of separation.
- Parveen Mehta v. Inderjit Mehta (2002) 5 SCC 706 – Explained that desertion implies both physical separation and intention to end cohabitation. The High Court held that the wife’s refusal to return after the husband’s second marriage could not be considered desertion.
- Vinita Saxena v. Pankaj Pandit (2006) 3 SCC 778 – Cited for the principle that cruelty must be inferred from the cumulative effect of conduct, not isolated acts.
- Rishikesh Sharma v. Saroj Sharma (2006) 3 SCC 389 – Used by the husband to support breakdown of marriage; however, the Court rejected its applicability since the petitioner himself was at fault.
Court’s Reasoning
The Court carefully analyzed the evidence and concluded that the husband had failed to establish cruelty or desertion.
The wife’s statement that she was unwilling to live with the husband could not, by itself, establish desertion when seen in the context of his remarriage. The Court observed that:
“Her refusal to live with the husband must be read in the context of his subsequent marriage. It is a reasonable response, not desertion.”
The Court also noted that the husband’s false allegations of infidelity and denial of maintenance demonstrated cruelty towards the wife. Furthermore, his relationship since 1995 and the birth of a child in 1996 confirmed that the cause of separation was his own misconduct.
Conclusion
The High Court held that the husband’s conduct — entering into another marriage, fathering a child, and maligning the wife’s character — constituted cruelty against the wife and negated his claim for divorce.
Accordingly, the Court dismissed the appeal, affirming the District Judge’s order rejecting the divorce petition. It concluded:
“It is the husband, on account of whose cruelty, the wife has been compelled to live separately. He cannot take advantage of his own wrong.”
Implications
This judgment reaffirms the principle that a spouse who commits marital misconduct cannot seek divorce on grounds arising from that misconduct.
Key takeaways include:
- Remarriage or extramarital relations bar claims of desertion.
- False allegations of infidelity amount to mental cruelty.
- Courts prioritize equity under Section 23(1)(a) to prevent misuse of divorce provisions.
The ruling reinforces judicial sensitivity towards women abandoned by husbands who later attempt to legalize their separation through divorce petitions.
