No Spouse Expected To Continue Matrimonial Relationship At Risk Of Malicious Criminal Prosecution: Allahabad High Court

The Allahabad High Court has held that under Section 13 of the Hindu Marriage Act, 1995 (Uttar Pradesh Amendment) a spouse cannot be expected to continue a matrimonial relationship at the risk of malicious criminal prosecution as it may lead to loss of dignity and reputation, apart from other consequences like being arrested.

The bench comprising Justice Saumitra Dayal Singh and Justice Donadi Ramesh held that

“For the purpose of Section 13 of the Act, as amended by the U.P. Amendment, legally, no spouse whether male or female may be expected to continue in a matrimonial relationship at the risk of malicious criminal prosecution. Criminal prosecution certainly leads to loss of dignity and reputation, besides other consequences that may arise, if a person is arrested or tried for the offence alleged.”

Challenging the order of restitution of conjugal rights, counsel for appellant-husband claimed that the parties were married in 1992. It was submitted that the parties only cohabited for 2 years during which the relationship was bitter. The appellant further alleged cruelty attributable to the respondent-wife which included using foul language and wilfully deserted the appellant on various occasions.

It was argued that the respondent-wife permanently deserted the appellant in 1995 and since then the parties never cohabited. It was pleaded that no child is born out of the wedlock and the respondent is gainfully employed as a Primary Teacher. Though allegations of demand of dowry were made by the respondent-wife, it was submitted that her brother refuted any such demand in his oral testimony.

Accordingly, it was argued that the Family Court had misread the evidence and not considered the fact that the wife had treated the appellant and his family with cruelty and had wilfully deserted her matrimonial home.

Since despite notice, the counsel for respondent did not appear, the Court proceeded ex-parte.

The Court observed that “subjective and inherently varied, individual human behaviour in the context of matrimonial relationship may be construed as cruelty to ones' spouse, depending on facts of each case and its proven effect on the other spouse. The complete denial of company to one's spouse, without any justifiable reason, may itself amount to cruelty. It is not cohabitation or physical intimacy that may dictate the definition of cruelty.”

The Court observed that abandoning spouse without any reasons amounts to cruelty on the spouse who has been left alone. Observing that the Hindu marriage is a sacrament and not a contract, the Court held that desertion by the spouse without any rhyme or reason leads to the death of the soul and spirit of the Hindu marriage, thereby constituting cruelty.

The Court observed that the respondent-wife had deserted her husband in 1995 and had lived separately since then. It was observed that she was gainfully employed as well.

The Court further upheld the allegations of cruelty by the wife on grounds of filing false criminal case against the husband before any other proceedings were instituted by the husband. It was held that appellant being a government employee, false criminal prosecution against him put him at a grave risk.

The Court observed that “Once, it was known from before to the respondent that there was no demand of dowry in the marriage, the fact that she chose to make such allegations most recklessly against all family members of the appellant including the minor siblings of the appellant, leaves us with no doubt that the conduct of the respondent was extremely cruel.”

Holding that the order of the Family Court was based on surmises and conjectures, the Court set aside the decree of restitution of conjugal rights and granted a decree of divorce in favour of the appellant-husband.

Case Title: Basant Kumar Dwivedi v. Smt. Kanchan Dwivedi [FIRST APPEAL No. - 480 of 2010]

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