A Division Bench comprising Chief Justice M.S. Sonak and Justice Manoj Prasad was hearing an appeal against the judgment dated November 30, 2023, passed by the Family Court, Bermo at Tenughat, Bokaro, dismissing the husband's petition for divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.

The parties were married on April 30, 2005, and had two children. The husband alleged that his wife maintained her distance from him, frequently quarrelled with him and his family members, and spoke to another man over his mobile phone. He further alleged that she had an extramarital relationship and had left the matrimonial home on April 15, 2015. The wife denied the allegations and submitted that she had been subjected to torture and dowry demands. She further alleged that it was her husband who had established an extramarital relationship with a woman working with him.

The Family Court dismissed the husband's divorce petition after finding that the allegations of cruelty and desertion had not been established. Examining the appeal, the High Court observed that cruelty under the Hindu Marriage Act could be physical or mental and must be of such a nature that matrimonial life becomes incompatible and conjugal life cannot be restored.

On the allegations of physical cruelty, the Bench noted that the husband's witnesses included his colleagues and friends, whose evidence could not be accepted without suspicion. His mother, who was allegedly subjected to quarrels by the wife, had not been examined. The Court also declined to rely upon the testimony of the couple's 11-year-old daughter, noting that she had admitted during cross-examination that her evidence had been prepared under her father's dictation.

Turning to the allegation of mental cruelty, the Bench observed that the husband's accusation of an extramarital relationship was based, among other things, on his wife's conversations with an unknown man over his mobile phone. The Court held that such accusations reflected gender-based stereotypes, where a woman speaking to a man, even a friend, resulted in allegations of adultery or an extramarital relationship. It expressly held that such allegations amounted to cruelty towards the wife. The Bench observed:

“Coming to the second dimension of cruelty, i.e. mental cruelty, which centres on an allegation that the wife is alleged to have had an extramarital relationship. Such allegations, if proved, may amount to mental cruelty in appropriate cases, but in the present case there are allegations and counter-allegations. The husband's allegations begin with an assertion that his wife had an extramarital relationship, including statements that she used to talk to an unknown male over the husband's own mobile phone. To our considered view, such allegations are typical gender-based stereotypes, where, if a woman talks to a man, even if he is a friend, charges of adultery or of an extramarital relationship are levelled. We are, therefore, of the considered view that such allegations amount to cruelty towards the wife. Counter-allegations by the wife of an extramarital relationship against her husband, without appropriate proof, may also amount to cruelty...”

On the question of desertion, the Court noted that although the divorce petition had not specifically invoked Section 13(1)(i-b) of the Hindu Marriage Act, the pleadings contained allegations of desertion and an issue had been framed on that ground. It observed that failure to mention a particular statutory provision would not defeat a party's case where the pleadings otherwise supported it.

However, the Court concluded that the husband had failed to establish either cruelty or desertion and upheld the Family Court's dismissal of his divorce petition.

Regarding interim maintenance, the Bench noted that an earlier order under Section 24 of the Hindu Marriage Act had already been affirmed by the High Court. It therefore declined to pass a separate order but permitted the wife to seek modification before the competent court if circumstances changed.

Appearance:

For the Appellant: Mr. Atanu Banerjee, Advocate

For Respondent No. 1: Mr. Ranjan Kumar, Advocate

For Respondent No. 2: Mr. Ashwini Bhushan, AC to Sr. SC-II