Mere Allegation Of Wife Ousting Husband From Matrimonial Home Not Enough To Show Desertion, He Must Show Attempts To Get Back: Allahabad HC

The Allahabad High Court has held that a mere allegation of the wife ousting the husband from the matrimonial home is not sufficient to show 'desertion' by her under Section 13 of the Hindu Marriage Act. The Court held that the husband must show that he tried to return to the house.The bench comprising Chief Justice Arun Bhansali and Justice Vikas Budhwar held,“Except for making allegations that the respondent declared that she shall alone stay in the house, nothing has been indicated with regard to efforts made by the appellant to get back in the matrimonial home and in those circumstances, it cannot be said that there has been desertion on the part of respondent so as to bring the case within the ambit of Section 13(1)(i-b) of the Act.”However, the Court granted divorce to the parties on the grounds of cruelty by the respondent-wife. It held that the allegations made by the wife against the appellant-husband in various pleadings/ complaints/ statements had no basis and were false, reckless and defamatory in nature, which amounted to cruelty to the husband.The Court relied on the Supreme Court's decision in Raj Talreja vs. Kavita Talreja to hold thus,“In view of what has been found hereinbefore, the allegations made against the appellant in various pleadings/complaints/statements have apparently no basis and the same, as laid down by Hon'ble Supreme Court in the case of Raj Talreja (supra), being reckless, defamatory and false, would be an act of cruelty to the appellant, which has been sufficiently proved. In view thereof, the judgment of the Family Court rejecting the petition of the appellant seeking dissolution of marriage cannot be sustained and, therefore, liable to be set aside.”In Raj Talreja vs. Kavita Talreja, the Supreme Court had held that where patently false allegations have been made against one spouse by the other that are defamatory in nature and lower the spouse's reputation in the eyes of his/her peers, then such allegations amount to cruelty. It was further held that even though the wife, in that case, had made false allegations amounting to cruelty, she could not be denied alimony.In the factual matrix of the case, it was alleged that the wife ousted the husband from their house and claimed herself to be the house owner. Further, she was accused of misbehaving with him and her family.The husband filed a case for the custody of the children, whereas the wife filed a complaint alleging domestic violence. The case under the DV Act was dismissed for lack of evidence. Further complaints were filed against the husband, alleging murder and other things. Since the attempt to resolve the dispute had failed, the appellant prayed for the dissolution of the marriage.In response to the divorce petition, the wife pleaded that she was willing to live with her husband if he corrected his behaviour. Holding that the appellant-husband had failed to prove cruelty by his wife, the Family Court rejected the divorce petition.Challenging the order of rejection of the divorce petition, counsel for the appellant-husband argued that the parties had been living separately since 2007, and the wife's cruelty was evident from the record. It was submitted that the marriage was turbulent from 2001 to 2007, and thereafter, the wife lodged several criminal cases against the husband.The Court observed that even though evidence had been led on the issue of desertion, the Family Court had not framed any issue regarding desertion and had only cursorily mentioned it.“The duty of the Court in farming issues, as provided under Order XIV C.P.C., is not a mere formality, as the issues are the foundation on which the evidence is required to be led/modulated by the parties and failure to frame proper issues not only deprives the parties to lead evidence appropriately, the judgment delivered also lacks comprehension and, therefore, proper framing of the issues is a sine qua non for the purpose of a proper trial.”The Court observed that the issue of whether the appellant left of his own accord or was ousted from his house required consideration, including whether leaving of the appellant under the circumstances would amount to 'desertion' under Section 13 of the Hindu Marriage Act.The Court observed that 'desertion' as defined in the Explanation to Section 13(1) of the Act means the other party to the marriage leaving the petitioner without reasonable cause and without consent including willful neglect of the petitioner by the other party to the marriage.The Court held that the incident of wife ousting the husband from the house has been relied on by the appellant to show that his wife had deserted him, but he failed to show any action taken by him to get back into the house. Accordingly, the Court held that divorce could not granted on grounds of desertion by wife.Regarding the wife's allegations of cruelty, the Court observed that the Family Court had violated Rule 30 of the U.P. Family Court Rules, 2006, which requires the court ...

Mere Allegation Of Wife Ousting Husband From Matrimonial Home Not Enough To Show Desertion, He Must Show Attempts To Get Back: Allahabad HC

Upasna Agrawal

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