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Prolonged separation from spouse without cause itself cruelty u/s 13(1)(ia) Hindu Marriage Act
Charu Chug Alias Charu Arora Vs Madhukar Chugh
FIRST APPEAL No. - 177 of 2017
About/from the judgment:
The High Court has upheld the divorce granted by the Court below to a couple living separately for almost 13 years.
In the divorce petition filed by the husband, the Court below had decided the issue of dissertation against him. However, divorce was granted on grounds of mental cruelty inflicted by the wife on the husband.
The bench held that cruelty need not only be physical in nature. In case of mental cruelty, it may be impossible for the spouse to continue in the martial relationship.
Since the wife had admitted that they had not lived together continuously, the Court held
“We, therefore, find that apart from issue no. 2 of cruelty the Court below appreciated that it is a case of irretrievable breakdown even if the desertion is not proved as per definition of Section 13 (1)(ia) and (ib). Admittedly at least 13 years have passed since both are living separately, which by itself amounts to cruelty under Section 13 (1)(ia) of the Act.”
As per factual matrix of the case, marriage between the parties was solemnized as per Hindu rites in 2002 and the wife lived at her paternal home after marriage for some time. She went to live with her husband for a brief period, thereafter, went back to her paternal home and then joined service in a different city from her husband. Though initially the wife moved with her husband to Mumbai, she eventually moved away.
In the divorce petition, the husband asserted that he was subjected to mental and physical cruelty. He asserted that he was deserted by his wife and there was irretrievable breakdown of marriage. However, in the written statement, the wife had alleged beating and torture and demand of dowry. She had further alleged adultery.
During the divorce proceedings, conciliation was tried, however, since the wife had not appeared on the subsequent date, it was deemed that she was not interested in conciliation and the Court below proceeded with recording evidence. The Court below held the marriage had irretrievably breakdown even if the desertion is not proved as per definition of Section 13 (1)(ia) (cruelty) and (ib) (dissertation).
The Court also held that since the wife was unable to prove the allegations of extra marital affair against the husband. The Court also noted that the allegations regarding physical torture made by the wife were false since no FIR was lodged and her eye problem had been persisting since before the marriage. Accordingly, the Court below held that mental cruelty was caused to the husband.
High Court Verdict
The Court observed that living separately for more than 13 years itself amounts to cruelty under Section 13(1)(ia).
The Court relied on Rakesh Raman vs. Smt. Kavita wherein relying on a judgment of its three judge bench in Samar Ghosh vs. Jaya Ghosh, the Supreme Court observed that mental cruelty includes
“Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”
Further, reliance was placed on Rajib Kumar Roy vs. Sushmita Saha wherein the Supreme Court held that
“Whatever may be the justification for the two living separately, with so much of time gone by, any marital love or affection, which may have been between the parties, seems to have dried up. This is a classic case of irretrievable breakdown of marriage”.
Relying on the decision of the Supreme Court in Samar Ghosh, the Court held that since undue harassment and mental cruelty had been established before the Court below, the divorce was rightly granted.
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