“The conduct complained of must be “grave” and “weighty” and trivial irritations and normal wear and tear of marriage would not constitute mental cruelty as a ground for divorce“– HC
Observing that the suit for divorce has been filed in the year 2019 i.e., after more than twenty years of marriage, and the sole ground of cruelty of not taking care of the in-laws is not sufficient to prove the claim since the in-laws had already died way back before the filing of the suit, the Jharkhand High Court upholds the findings of the Family Judge in denying a decree for divorce.
The High Court ruled that there must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home.
At the same time, the Court clarified that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause, and the deserted spouse must prove that there is a factum of separation, and there is an intention on the part of the deserting spouse to bring the cohabitation to a permanent end.
Facts of the case:
The dispute arose after 20 years of marriage of the appellant with the respondent when they started living separately in the year 2016, which was solemnized in the year 1996 as per Hindu rites and customs. Alleging mental torture, trauma, nuisance, threat to kill, and voluntary sexual intercourse of the respondent with another person, the appellant filed a petition under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955 for a decree of divorce on the ground of cruelty and desertion. The Family Judge, however, dismissed the suit by holding that none of the grounds, either of cruelty or desertion, stood established by the appellant. This has led to the present appeal by the husband before the High Court.
Submissions of the Appellant:
The counsel for the appellant submitted that the issue of cruelty and desertion has not been taken into consideration in the right perspective, even though the fact about living separately has well been established.
Submissions of the Respondent:
The counsel for the respondent contended that, so far as alleged for commission of cruelty is considered, the ground has been raised before the Family Judge that the respondent-wife is not taking care of the in-laws. It was submitted that the father-in-law has died after 6-7 months of the marriage of the parties and mother-in-law has also died sometime in the year 2016 while the marriage was solemnized sometime in the year 1996 and the appellant for grant of decree of divorce has been filed in the year 2019, as such, the ground of not taking care of the in-laws is absolutely incorrect.
Observations of the Court:
Referring to the decision of the Apex Court in Arulvelu and Anr. v. State (2009), the Bench of Justice Sujit Narayan Prasad and Justice Rajesh Kumar reiterated that “if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law”.
The Bench also quoted the decision of Apex Court in Shobha Rani v. Madhukar Reddi (1987), where it was held that “cruelty is the conduct in relation to or in respect of matrimonial conduct in respect of matrimonial obligations. It is the conduct which adversely affects the spouse. Such cruelty can be either “mental” or “physical”, intentional or unintentional”.
The Court observed that the offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce, it must exist for a period of at least two years immediately preceding the presentation of the petition or, where the offence appears as a cross-charge, of the answer.
Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted, added the Court.
The Court explained that the definition of “desertion” is required to be referred as defined under explanation part of Section 13 of the Hindu Marriage Act, 1955, which means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage.
The suit has been filed in the year 2019 and the sole ground, therefore, cannot be said to be sufficient to prove the ground of cruelty of not taking care of the in-laws since the in-laws had already died way back before filing of the suit, as such, said ground has been disbelieved by the Family Judge, added the Court.
The decision of the Court:
While concluding that the Family Judge, on consideration of the issues, has not found the ground for dissolution of marriage, the High Court is of the view that the appellant has failed to establish the element of perversity in the judgment of the Family Court, and therefore, dismissed the appeal.
Case Title: Arun Kumar vs. Soni Devi
Case Number: F.A. No. 172 of 2024
Coram: Hon’ble Justice Sujit Narayan Prasad and Hon’ble Justice Rajesh Kumar
Counsel for Appellant: Sr Adv Sanjay Kumar
Counsel for Respondent: Sr Adv Rajeeva Sharma and Adv Om Prakash
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