Husband Obtaining Divorce Decree From Foreign Court Without Informing Wife Constitutes Cruelty: Rajasthan High Court

The Rajasthan High Court has observed that a husband obtaining an ex-parte divorce decree from a foreign court without informing the wife, amounts to cruelty under the Hindu Marriage Act. The division bench of Justice Arun Monga and Justice Sunil Beniwal further affirmed that in the present case, the ex-parte decree of divorce passed by a Court in California, USA, could not be relied upon since no certified copy of the same as proved by the husband, and the wife was not given effective opportunity to contest the same."Our opinion, ibid, is based on the decisive factor informing us about the conceded circumstance that the respondent-husband secured an ex parte decree of divorce from a court in the United States way back in 2015. The appellant-wife asserts that she became aware of this development only in 2018. Regardless of the precise timeline of such knowledge, the factual significance of this event unliterally by husband cannot be understated. The husband's act of one-sidedly dissolving the marriage abroad is a clear and unequivocal manifestation of his intention to sever the marital bond, apart from leaving the wife shocked, which is nothing but an act of cruelty upon her". The Court was hearing a challenge to the Family Court's decision rejecting the wife's plea for divorce on the ground of irretrievable breakdown of her marriage. The Family Court rejected the wife's petition on the ground that there was no record to prove the allegations of cruelty and harassment, and the irretrievable breakdown of marriage was not a ground in itself under Section 13 HMA to grant divorce. It was the petitioner's case, that her the marriage solemnized in 2010 and after being taken to the USA by her husband, she was being harassed and subjected to cruelty. It was further alleged that her husband had illicit relationship with other woman and forced her out of the home, after which she came back to India in 2013 and since then they have been living separately. The wife further submitted that thereafter the husband had taken an ex-parte divorce decree from a court in California in 2015, without giving any notice to the wife which constituted mental cruelty. It was only after the wife got to know about the decree in 2018 that she filed for divorce in India. Hence, their marital relationship had irretrievably broken down. While opposing all the claims of cruelty and harassment, as well as abandonment, the husband submitted that the wife had left USA on her own, and he admitted to the contention of irretrievable breakdown of marriage, as well as the ex-parte divorce decree by a court in California. After hearing the contentions, the Court highlighted that even though the Family Court had found that the marriage was irretrievably broken down it was held that it could not be dissolved on that ground under Section 13, HMA. In this background, the Court made reference to Supreme Court decisions to hold that in many instances, Supreme Court had invoked its inherent powers to dissolve marriages that were irretrievably broken down, and in this regard had also made a suggestion to the government to bring an amendment under HMA for incorporating this as a ground for divorce. “…the Apex Court has proceeded to observe that compelling the parties to continue in a marriage which has broken down beyond repair would itself amount to cruelty to both the parties. Accordingly, cruelty being one of the grounds under Section 13 of the Act of 1955, a marriage may be dissolved on such count.”The Court took into account the acts of both the Parties. It was opined that husband's act of one-sidedly dissolving marriage in abroad was clear reflection of his intention to break the marital bond, leaving the wife shocked, which inflicted cruelty on her. On the other side, instead of saving her marriage, wife's act of taking instituting independent divorce proceedings in India reinforced the fact that neither party wanted to resume cohabitation.The Court also took into account that the parties were engaged in multiple litigation and their relationship had turned really sour presenting no possibility of reconciliation. It was held that any attempt of compelling them to cohabit would be impracticable, unrealistic and inflict cruelty upon them. The Court further held that husband failed to take any reasonable steps to persuade the wife to return, rather within a short span, initiated proceedings for child custody and obtained a foreign divorce decree in 2015. Such conduct could not be termed as reasonable, and amounted to cruelty upon wife. “Matrimonial relief must be grounded in the realities of the relationship, not in a theoretical preservation of marital ties that have, in substance, already disintegrated…In these peculiar circumstanced, to mandate that the parties resume living together would amount to a legal fiction imposed in disregard of their demonstrated mutual intentions and lived realities. Such a direction would serve no constructive...

Husband Obtaining Divorce Decree From Foreign Court Without Informing Wife Constitutes Cruelty: Rajasthan High Court

Nupur Agrawal

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Husband Obtaining Divorce Decree From Foreign Court Without Informing Wife Constitutes Cruelty: Rajasthan High Court

Nupur Agrawal

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