Art.4(8) Law Of Divorce | Wife Refusing To Live With Husband And His Paramour Doesn't Mean She "Freely Consented" To Separation: Bombay HC

A husband insisting a wife to live in the house where he lives with his paramour is a good enough reason for her to stay separately and this 'separation' cannot be regarded as the wife's 'free consent' to separation, to afford a ground to the husband to seek divorce under the Law of Divorce (Divorce Act, 1910), ruled the Bombay High Court at Goa, recently.

Single-judge Justice Makarand Karanik noted that the husband in the instant case, claimed that his wife abandoned him and refused to join the conjugal relationship in May 1993, which was just within a year of their marriage, which was registered in November 1992. The judge noted from the material on record that the husband was living his another woman, with whom he had an affair even prior to his marriage with the respondent wife and has two sons from her. 

The judge noted that when the respondent wife was pregnant, the husband insisted that she should join him in the 'new' matrimonial home, where he resided with another woman. He further took into account the fact that the wife continued to reside with the husband's parents and her son for over two decades.

The court further noted that the wife filed domestic violence proceedings only in 2010 and that the husband responded to a court's query that he would have abandoned the other woman, had the respondent wife come to stay with him.

"The evidence on record demonstrates that the husband was living with 'A' in the new matrimonial home. The husband wanted the respondent-wife to reside in this matrimonial home. I find force in the submission the respondent wife that this was a good enough reason for her to stay separately. Such de facto separation can never be regarded as 'freely consented' to afford a ground to the husband for divorce under Article 4(8) of the Law of Divorce," Justice Karnik observed.

No doubt, the factum of separation for ten consecutive years exists, the judge noted.

"The cause for separation in terms of Clause 8 may have been the husband having relationship outside the marriage. However, such de facto separation in terms of Clause 8 must be freely consented. The evidence on record shows that the wife continues to reside in the original matrimonial home along with her in-laws. The wife is justified in refusing to reside with her husband in the new matrimonial home where he is residing with 'A'. This is not a case where de facto separation is freely consented," the judge held.

With these observations, the bench dismissed the husband's second appeal challenging the orders of the trial court and also the first appellate court, both concluding that he failed to prove that the wife subjected him to cruelty or abandoned him and gave 'free consent' to afford a ground to the husband to seek divorce. 

Appearance:

Advocates Shivan Desai and M Viegas appeared for the Husband.

Advocate Prachi Sawant appointed through legal aid scheme, represented the Wife.

Case Title: Arshad Khalifa vs Gulzar Khalifa (Second Appeal 29 of 2024)

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