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The Telangana High Court has recently dismissed a husband's appeal challenging a Family Court order denying him divorce, holding that although the husband sought divorce on ground of cruelty by wife he made specific allegations of adultery and desertion against her which he also failed to prove with evidence.  

A Division Bench of Justices K. Lakshman and K. Sujana dismissed Family Court Appeal, affirming the 2015 order passed by a Family Court judge at Nizamabad.

"though the appellant made an allegation that the respondent deserted him in the year 2010, he has filed the aforesaid OP against the respondent seeking dissolution of marriage on the ground of 'cruelty' only. He has not filed the aforesaid application seeking dissolution of marriage on the ground of 'desertion'. Therefore, he cannot allege the ground of 'desertion' in the aforesaid OP. Like-wise, though the appellant made a specific allegation that the respondent lived in adulterous life with one..., he has filed the aforesaid OP only on the ground of 'cruelty', but not on the ground of 'adultery' and he has not made the said (person) as party to the aforesaid OP. His first son (RW.2) deposed against him. On consideration of the said aspects only, learned Family Court dismissed the aforesaid OP filed by the appellant," the court said.

To recap, the husband had sought dissolution of marriage under Section 13(1) (ia) of the Hindu Marriage Act, 1955, alleging cruelty.

According to the husband, the parties got married in 1992. Before the Family Court, the husband claimed that he worked in foreign countries at the relevant point of time, and duly sent earnings to his wife. However, according to the husband, at around the same time, the wife was maintaining an illicit relationship with another person.

According to the husband's version, the respondent-wife attempted suicide after being caught by their elder son. In addition to the above, the husband said that the respondent periodically quarrelled with the son, failed to account for money sent by him, and eventually started living separately from the husband in 2010.

According to the petitioner, this was followed by a false complaint against him under Section 498A of the IPC by the wife. On top of that, on 21.08.2010, the wife and her relatives allegedly trespassed into his house, and assaulted his relatives who were present.

The wife refuted the allegations levelled against her and told the family court that the original divorce petition was filed to get rid of her.

Saying that the husband failed to prove cruelty allegations, the Family Court dismissed the OP. Aggrieved, the husband approached the High Court in appeal.

In the appeal, the wife remained without representation.

The High Court noted that the husband's specific case was that the wife had an illicit relationship with another man, and that they were caught red-handed by their elder son. But the plea for divorce was based for cruelty, and not adultery, the court pointed. It was also said by the court that the husband couldn't prove that his wife attempted to commit suicide upon being caught by their son. On the other hand, the respondent wife examined their son as RW2 before the family court, upon which he had denied witnessing such incidents.

The Court also observed that the husband alleged that the wife left his company without intimation, but examined no witness to prove it. He also alleged that the wife and her relatives trespassed into his house and assaulted a distant relative.

“…Mere allegation is not sufficient and the appellant has to prove the same by producing cogent evidence…” the court said.

On the allegation that he had sent money to the wife from abroad, and that she failed to account for it, the Court noted that except filing Exhibit P1 passbook, the husband had not let in any evidence. The wife and the elder son also deposed to disprove the same, the court added further.

The court iterated that in a petition seeking divorce on the ground of cruelty, the husband has to plead and prove the same by producing reliable and cogent evidence.

Referring to Samar Ghosh v. Jaya Ghosh[2007], the Court noted that human mind and behaviour are complex, and what amounts to cruelty in one case may not amount to cruelty in another, depending on upbringing, sensitivity, education, family and cultural background etc.

The court further held that though the husband alleged desertion in 2010 and adultery with another person, the OP was filed only on the ground of cruelty. He had not sought divorce on the ground of desertion or adultery, nor made the other person a party. The elder son deposed against him in the matter, the court pointed out.

Noting that three sons were born out of the wedlock, and that all of them are now majors, the court held that the appellant-husband was not entitled to any relief.

The court also quoted Durga Prasanna Tripathy v. Arundhati Tripathy [2005] wherein the apex court opined that 'marriages are made in heaven'.

“…. The appellant failed to make out any case to interfere with the order under challenge. It is a reasoned and well-founded order. Thus, the present appeal is devoid of merits and the same is liable to be dismissed. …The present Appeal is accordingly dismissed. In the circumstances of the case, there shall be no order as to costs…”, the court ordered.

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