Can a Wife seek Divorce just because Husband is living abroad? YES says HC, it's Mental Cruelty [Read Judgement]

  

The Delhi High Court taking into consideration Mental Cruelty as a ground of divorce has made a significent observation that a marriage where there is neither sharing of emotions, nor of dreams, joys, sorrows, memories, is merely a legal bond.

The division bench comprising of Justice Vipin Sanghi and Justice Jasmeet while dealing with a divorce petition observed that not living together for any significant length of time, since inception of marriage do amounts mental cruelty.

Brief Facts of the Case

The present appeal has been filed by the Appellant-Wife against the Respondent-Husband under Section 19 of the Family Courts Act, 1984 to assail the judgment passed by the Family Court whereby the petition filed under Section 13(1) (ia) of the Hindu Marriage Act, 1955, by the Appellant-Wife for grant of divorce on the grounds of cruelty, was dismissed.

It was the case of the Appellant-Wife that the Respondent-Husband resided in Canada and used to visit his family occassionally during which their relationship started and eventually ended in matrimonial bond. She alleged he deceived her about his actual age and that had initially, cleverly, convinced her not to inform either of their parents about their marriage. They had a brief honeymoon before Respondent-Husband's return. He also took back with him all marriage documents and photographs.

Later on, he made short trips back to India in a nearly year long and more's gap and was physically, mentally and sexually abusive towards the Appellant-Wife during them owing to which she filed for Divorce.

The Respondent in his written statement denied all allegations and inturn alleged that t it was due to the pressure from the Appellant’s family, that she was refusing to reside with the Appellant, as they were against their inter-caste marriage. If given a choice, she would choose to live with him, he claimed in his submission.

The Respondent kept insisting that the Appellant is being pressurized by her brother not to live with the respondent, and she still wanted to stay with him. He also stated that he is ready to make arrangements for her to come to Canada and stay with him. The Appellant, however, refuted this allegation, and maintained her stand that the marriage was deceitful and a violent one, and she is not inclined to continue the same. 

The Family Court in its impugned judgement had concluded that the Appellant-Wife was not able to establish that she was subjected to cruelty – whether physical or mental. The Family Court was of the view that she has not been able to prove that the conduct of the respondent amounted to cruelty within the parameters of Section 13(1)(ia) of the Act rather, it was the Appellant who had committed cruelty on her husband, by concealing her marital status and by leveling several non-specific allegations regarding ill treatment and cruelty, without giving any specific details with regard to those allegations.

High Court Observation

The Court viewed the case as having two aspects which needed to be decided, whether (i) the long periods of continuous separation between the parties led to the matrimonial bond being breached beyond repair, which tantamounted to cruelty and, (ii)  the conduct of the respondent before, or after the filing of the Divorce Petition has been such as to cause mental cruelty to the Appellant to such an extent, that she cannot be reasonably expected to live with the Respondent.

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While dealing with the first aspect, the Court referred to precedent set by Apex Court in  in Samar Ghosh Vs. Jaya Ghosh, 2007 Latest Caselaw 273 SC while enumerating instances of human behavior which may be relevant in cases of mental cruelty in context of longtime separation.

The Court also cited recent SC Ruling in Sivasankaran Vs. Santhimeenal, 2021 Latest Caselaw 386 SC wherein it held that the court can dissolve a marriage when there is actually no chance of the marriage surviving, and it is broken beyond repair.

The Court went onto note:

"The objective of the institution of marriage is to bring two souls together, who embark on the adventurous journey called life. They share experiences, smiles, sorrows, achievements and struggles. They uplift and support each other in all situations with their emotional, mental and physical presence. On this journey of life, they create personal, social and spiritual bonds, everlasting memories, future plans, through which they co-exist in the society. An essential aspect of marriage is being present in each other’s life, physically and emotionally. It is not to say that every marriage, where the couple stays apart from each other for work or other obligations consensually, is a broken one. However, a marriage where there is neither sharing of emotions, nor of dreams, joys, sorrows, memories (happy or sad), is merely a legal bond."

 In the present case, the Court noted that  the parties have never lived together for any significant length of time, since inception of their marriage.

"It appears, that the Respondent treated the Appellant as his overseas wife, only to use her as a temporary companion, and to have someone to serve him when he came to India on short visits after yearly gaps. In the past seven years, after institution of the divorce proceedings, the parties have admittedly not communicated with each other."

 Rejecting Respondent-Husband's submissions, the Court stated:

"In the present case, there is neither a matrimonial home, nor the possibility of ever having one. The damage to the marriage is evident. These instances do not amount to ordinary wear and tear of day-to-day life. The parties in the present appeal are at an age, where they may start a new life, if given a chance. However, keeping them tied to a legal bond would only mean snatching away from them the chance to ever lead a fulfilling life. Continuation of this matrimonial bond, itself, is sufficient to cause immense mental cruelty to the appellant, at least, if not to both the parties. In the facts of the present case, we see no reason to keep this moribund marriage alive. The ground of cruelty is, thus, clearly made out as expounded in Samar Ghosh (supra)."

 As far as the the second aspect is concerned, the Court ruled that issue is not about the appellant/ wife being in need of monetary support but as to how the respondent conducted himself in his role as the appellant’s husband.

"The admitted lack of any financial support – not even occasional, displays the indifferent and inert attitude of the respondent towards the appellant. This is also clearly displayed by his lack of will to be with the Appellant – either in Canada, or in India. The respondent claims that the appellant herself withdrew from the process of her immigration to Canada, to be with him. There is nothing placed on record by way of evidence, by the respondent, to show as to what steps he took to persuade the appellant to join his company in Canada, or to return to India and be with her. The said conduct of the respondent clearly shows that it was not a priority for him to save his marriage with the appellant. This indifference shown by the respondent towards the appellant would certainly have caused doubts and consternation in the mind of the appellant, and her decision – not to immigrate to Canada, only because the respondent was calling her, can well be appreciated. There appear to be little, rather no confidence building measures that the respondent appears to have taken, to give an assurance that the appellant would be well taken care of, and not harmed or left helpless, if she followed him into a far off strange world."

 In view of the above, the Court allowed the appeal and set aside the impugned judgment and decree, and accordingly dissolve the marriage between the parties by a decree of divorce on the ground of cruelty contained in Section 13(1)(ia)of the Hindu Marriage Act.

Read Judgement Here:

 

 

 

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