Irretrievable Breakdown Of Relationship, Can't Compel Couple To Live Together Via Judicial Separation: Madhya Pradesh HC Grants Woman Divorce
Finding a woman entitled to a divorce decree, the Gwalior bench of Madhya Pradesh High Court said that once the relationship between the couple had "reached irretrievable breakdown" along with desertion of over five yers, then compelling them to live together won't serve any purpose by granting a "judicial separation" decree.
In doing so the high court also noted the "erroneous" approach of the family court which had though found that the woman was subjected to cruelty however on possibility of a reunion had passed the order for judicial separation. It also observed that judicial separation can only be granted only if either party has agreed to it.
A division bench of Justice Anand Pathak and Justice Roopesh Chandra Varshney in its order observed, “From the evidence available on record, it appears that respondent was in habit of torturing the appellant for everything…but the Family Court swayed away by the fact that since the couple resides for 19 years therefore, passed the decreed of judicial separation. Once the relationship between the two reached of irretrievable breakdown, marked with desertion, more than 5 years, then compelling the couple to live together will not serve much purpose by giving decree of judicial separation. Survival of marriage for 19 years does not mean that all things were good between the couple and the relationship would have continued till the end".
"From the evidence available on record, it appears that appellant mentioned various instances of cruelty towards her. The Family 14 F.A. No.1142/2023 Court in its finding itself explained that appellant is subjected to mental as well as physical cruelty thus, the appellant has successfully proved her case, still on possibility of reunion, passed the order for judicial separation.Therefore, approach of Court below was erroneous," it added.
The appellant/wife had filed an appeal under Section 28 of the Hindu Marriage Act, 1955 before the high court against the judgment and decree passed by Principal Judge, Family Court whereby although the family court found cruelty against the appellant/wife but did not pass the decree of divorce instead passed a decree of judicial separation.
The appellant and the respondent got married in 2000 and had two children. It was alleged that the respondent had been torturing the appellant mentally and physically from the very next day of their marriage. Further, it was alleged that the appellant was threatened by the respondent to leave her job and when she did not listen, she was physically tortured. During appellant's pregnancy, it was alleged that the respondent husband did not take care of her or support her. In 2019, the respondent told the appellant and children to go to her maternal house and not to come back to his house. Thereafter, the appellant filed an application under section 13(1)(i)(i-a) of the HMA seeking divorce on the ground of cruelty.
The Family Court found cruelty against the appellant but looking to the fact that parties had led married life for almost 19 years happily, passed the decree of judicial separation.
The counsel for the appellant submitted that the appellant has been tortured from the next day of her marriage over petty issues and that the Respondent used to pass objectionable comments on her existence. It was further submitted that respondent used to beat the appellant on not getting food on time. He even used to beat her in front of their children and guests. The appellant had tried to sort things out several times but to no avail. Thus, the appellant for the welfare of her children decided to part ways with the respondent and filed a petition for divorce on the ground of cruelty.
The division bench observed, “The concept of Judicial Separation rests upon the consent and circumstances of the couple and hope of survival of their relation while the divorce is the decree which is based upon the allegations and counter allegations of the parties in lis".
Perusal the provisions of the Hindu Marriage Act the court said that it clearly indicated that a decree of judicial separation can be passed only if either party has agreed to it.
It said, "Court cannot bound the parties to cohabit with each other without their will or any application/ petition filed in that behalf. In the present case, appellant filed application under Section 13(i-a) of the Hindu Marriage Act seeking divorce on the ground of cruelty and she neither want judicial separation nor she prayed so in any of her averments made before the Family Court. She wanted divorce throughout".
The court concluded that the Family Court has erred in passing the decree of judicial separation. Setting aside the family court order the high court said:
"In the conspectus of facts and circumstances of the case, this Court is of the considered view that the Family Court erred in passing the decree of judicial separation. Hence, the instant appeal is allowed. The judgment dated 04-03-2023 and decree of judicial separation passed by the Family Court in HMA No.136/2019 is hereby set aside. The application under Section 13(i-a) of the Hindu Marriage Act filed on behalf of the appellant/wife stands allowed. Resultantly, appellant is found entitled to get decree of divorce. Office is directed to draw decree of divorce accordingly".