6 Jun 2023 10:46 AM GMT
Dismissing the petition of a husband against his wife alleging cruelty and desertion, the Himachal Pradesh High Court has observed no wife can be forced to live in matrimonial home with husband keeping another lady with him."...Respondent had justifiable ground to live separately as no wife can be forced to live in matrimonial home with husband keeping another lady with him," a...
Dismissing the petition of a husband against his wife alleging cruelty and desertion, the Himachal Pradesh High Court has observed no wife can be forced to live in matrimonial home with husband keeping another lady with him.
"...Respondent had justifiable ground to live separately as no wife can be forced to live in matrimonial home with husband keeping another lady with him," a bench comprising Justice Satyen Vaidya observed.
In the instant matter the appellant-husband and respondent-wife had been living separately since 1995. The Appellant filed a petition for dissolution of marriage in the Trial Court on grounds of cruelty, which was dismissed and hence this instant appeal came to be filed.
The appellant assailed the impugned judgment and decree, on the ground that it was result of mis-appreciation of the evidence. The appellant argued that he had proved the issue with regard to cruelty of his wife by overwhelming evidence, which was ignored by learned Trial Court.
As per husband, he had proved that the respondent had deserted him without there being any cause and despite efforts had not returned back.
After perusing the contents of the petition Justice Vaidya noted that no specific instance constituting cruelty had been pleaded except making an averment that the attitude of respondent towards husband and his family members was hostile from the beginning of married life.
Observing that the Hindu Marriage and Divorce (Himachal Pradesh) Rules 1982 require the allegations of cruelty to be specified in the petition with particularity of time and place, the bench said that the contents of petition are completely non-compliant to above referred rules.
Deliberating on the ground of cruelty raised by the Appellant (husband), the Bench while relying on Dr. N.G Dastane Vs. Mrs. S. Dastane [(1975) stated that onus of proof is on the person who alleges cruelty and standard of proof is that of preponderance of probabilities, and hence merely stating that wife had a quarrelsome attitude is not enough to discharge the standard of proof.
“Not only the husband had failed to plead and prove the acts of cruelty on the part of respondent, the defence of respondent justifying her conduct to live separately stood probabelised”, the bench observed.
Bench noted that stating in general terms during cross-examination that the wife had quarrelsome nature and even after several pleadings she did not return to the matrimonial home, are not enough cruelty on her part.
The Bench also observed that desertion as a ground for divorce was not specifically pleaded by the Appellant and the issue was wrongly framed by the Trial Court.
“The statements of husband and his father as PW-1 and PW-2 were in general terms without specifying any particular incident. The facts were narrated only in generalized terms, which cannot be held sufficient for discharging the burden of the husband as petitioner”, the bench reasoned.
Moreover, it noted that one of the villagers had deposed and verified that husband had married another lady. This statement remained unchallenged. Thus, based on preponderance of probabilities Court concluded that even if desertion had been cited as a reason for divorce, the Respondent had sufficient justification to live apart from her spouse.
In view of the same the bench dismissed the petition.
Case Title: Nain Sukh Vs Seema Devi
Citation: 2023 LiveLaw (HP) 37
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