Accusing Wife Of Extramarital Affair Is Mental Cruelty, Ground To Live Apart: Karnataka High Court Denies Divorce To Husband Claiming Desertion
The Karnataka High Court has upheld an order denying divorce to a husband claiming desertion, observing that mere accusation of the wife having an extra-marital affair amounts to mental cruelty and would be a cogent reason for her to live apart.
The court was hearing the husband's appeal challenging a family court order dismissing his plea for divorce under Section 13(1(b) of Hindu Marriage Act sought on the ground of desertion.
The husband alleged that his wife was in an extra-marital relationship and she had left the matrimonial home in April 2015, when her extra marital relationship was discovered by the petitioner.
A division bench of Justice Jayant Banerji and Justice TM Nadaf in its order observed that merely living separately for considerable period of time may not amount to desertion, but what is to be proved is the animus for separate living attributable on the party/spouse living apart.
"Though the respondent has been placed ex-parte, there is no cogent evidence placed by petitioner to substantiate his claim of desertion by the respondent. The trial Court in paragraph No.17 has clearly stated that despite taking the contention that the respondent is having extra marital relationship, but the petitioner has failed to prove the same by leading substantial evidence and by producing substantial proof in line with such statement and further observed that the allegation of extra marital relationship without proof would operate as mental cruelty and perhaps this may be the reason for the wife to live apart," the court said.
Finding force in the arguments of the amicus curiae appointed in the matter the court said that desertion in the absence of "animus with the spouse living apart for considerable years" will not be termed as desertion within the meaning under Section 13(1)(b) of HM Act.
The bench said that the explanation to the provision is very specific and clear that desertion means a party to the marriage living apart without there being any reasonable cause and without consent or against the wish of other spouse.
"As rightly held by the trial Court, there is nothing on record in proof of such animus with the respondent to live apart depriving the petitioner of marital happiness," it said.
The court said that the burden is on the party who approaches the court to prove his case on his own strength and discharge the onus cast on him, irrespective of whether the other side has contested the case or not. It said,
"A party who has approached the Court has to establish his case on his own, otherwise he is not entitled for any relief sought in his petition. In the case on hand as rightly observed by the trial Court, mere accusation of relationship with some other person itself is a mental cruelty and perhaps is the reasonable cause for the wife to live apart. We find that the trial Court having considered the entire material placed before it dismissed the petition, on the failure of the petitioner-husband to prove the ingredients of desertion a ground for dissolution of marriage, with valid reasons"
The wife had filed a criminal case against her husband under Section 498A IPC (cruelty) and Section 3 and 4 of Dowry Prohibition Act; the case after trial ended in an acquittal.
The husband thereafter moved a divorce plea before the trial court, which was dismissed holding that though the husband had specifically contended that the wife was having extra marital relationship with someone else, however he had failed to produce any proof to that effect. The wife did not appear before the trial court or before the high court.
The appeal was dismissed.
Case title: X v/s Y
MISCELLANEOUS FIRST APPEAL NO. 918 OF 2021