S.13 Hindu Marriage Act | Once Finding Of Cruelty Recorded, Divorce To Be Granted Irrespective Of Proof Of Desertion: Allahabad High Court

The Allahabad High Court has held that once the finding regarding cruelty has been recorded by the Family Court, marriage between the parties ought to be dissolved. The Court held that only because desertion is not proved, the marriage cannot be restituted.

The Court held that the grounds of divorce provided in Section 13(1) of the Hindu Marriage Act are mutually exclusive and if any one of the grounds is made out, the divorce ought to be granted. It held that use of the word 'or' after each ground makes them disjunctive.

Section 13(1)(ia) of the Hindu Marriage Act, 1955 provides for divorce on grounds of cruelty. The state amendment of Uttar Pradesh to Section 13(1)(ia) provides for divorce when petitioner has been repeatedly or persistently been subjected to cruelty so as to “cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party.”

Referring to grounds for divorce mentioned in sub-section (1) of Section 13, the bench of Justice Rajan Roy and Justice Om Prakash Shukla held that

“It has to be understood that each of these grounds are mutually exclusive to each other which is evident by use of the disjunctive 'or' to separate each ground from the other and there is no reason to read 'or' conjunctively as it will lead to absurdity. Thus, cruelty can by itself be a ground for dissolution of marriage. However, it seems that learned Family Court, after returning a finding that “cruelty” has been inflicted by the respondent-wife on the appellant-husband, refused to grant divorce to the husband presumably on the ground that the ground of “desertion” could not be proved by the appellant- husband.”

Factual Background

Parties got married in 1986 and had two sons. Appellant-husband alleged that after conceiving, the respondent-wife had started misbehaving with him, abused his parents, etc. It was stated that since 2003, the communication between the parties was either through the sons or through text messages even though they were living separately under the same roof. Under the said circumstance, appellant filed for divorce under Section 13 of the Hindu Marriage Act, 1955.

It has been stated that after the divorce petition was instituted by the husband, the wife lodged several criminal cases under the Domestic Violence Act, Dowry Prohibition Act, Section 125 CrPC and also a suit under Section 9 of the Hindu Marriage Act for restitution of conjugal rights.

Denying all allegations in the written statement filed before the Family Court, the respondent-wife claimed to be taking care of the husband and the children.

Hearing both suits under Section 13 and Section 9 of the Act together, the Family Court denied the dissolution of marriage and directed restitution of conjugal rights. Aggrieved the appellant husband approached the High Court.

Counsel for appellant-husband submitted that once the Family Court had found that the wife had committed cruelty over the husband, dissolution of marriage ought to have been ordered. It was further stated that the wife had never challenged the finding of cruelty against her and the appellant was being forced to live the wife despite cruelty being meted out to him.

Further, it was submitted that the parties are staying separately since March, 2012, from 3 weeks before the verdict of the Family Court and that no attempt for any reconciliation had been made by the wife, which meant irretrievable breakdown of marriage.

Per contra, counsel for respondent-wife stated that the wife had made all efforts for reconciliation and that merely living separately does not amount to irretrievable breakdown of marriage.

High Court Verdict

The Court observed that once the finding of cruelty was recorded in the order by the Family Court, the petition under Section 13 of the Act could not be dismissed directing restitution of conjugal rights. The Court held that the fact of desertion not being proved was immaterial.

Holding that conditions for grant of divorce under Section 13 of the Hindu Marriage Act are mutually exclusive to each other, the Court held that divorce should have been granted once finding of cruelty had been recorded by the Family Court.

The Court held that the finding of cruelty inflicted by the wife upon the husband which was recorded by the Family Court was “incongruous and irreconcilable” with the directing of restitution of marriage. It was held that the finding of cruelty was enough for not granting decree of restitution of marriage under Section 9 of the Act.

Observing that the parties had been living separately for more than a decade and that all attempts at mediation and settlement had failed, the Court held that the marriage had irretrievably broken down.

“There are bitter allegations of cruelty from both the sides and multiple litigations have taken place between the two in the last more than a decade. This embittered relationship between the appellant and respondent which has not witnessed any moment of peace for the last more than a decade or more is a martial relationship only on paper. The fact is that this relationship has broke down irretrievably long back.”

Accordingly, the High Court declared the marriage between the parties as dissolved leaving it open for the wife to seek alimony in separate proceedings.

Case Title: Dr. Bijoy Kundu v. Smt. Piu Kundu 2024 LiveLaw (AB) 374 [FIRST APPEAL No. - 31 of 2021]

Citation: 2024 LiveLaw (AB) 374

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