Entering Into Second Marriage Even With Wife's Consent May Constitute Cruelty: Patna High Court

The division bench of Justices Jitendra Kumar and PB Bajanthri observed, “As such, even lodging of criminal cases under Section 498A of the IPC by the Respondent-wife cannot be construed as cruelty to the Appellant-husband. After perusal of the averment made in the petition, we further find that as per averment of the Appellant-husband, he has entered into second marriage, though allegedly with the consent of the Respondent- wife."

"However, as a common knowledge, such second marriage is not tolerated by any wife and that is why entering into second marriage itself amounts to cruelty to the first wife giving her reason to live separately and giving cause of action to file complaint cases under Section 498A of the IPC and as such, the submission of Ld. counsel for the Appellant-husband that he has proved the ground of cruelty for dissolution of marriage has no substance,” the bench added.

The above ruling was delivered in an appeal challenging a judgment and order from the Principal Judge of the Family Court in Sheikhpura, which had dismissed the appellant's request for a divorce under Section 13 of the Hindu Marriage Act, 1955, filed against his spouse.

The Appellant-husband's case, as outlined in the pleadings, revolves around his marriage to the Respondent-Defendant in 1978.  Appellant-Plaintiff alleged that, with the consent of the Respondent-Defendant-wife, he entered into a second marriage in 2004. Subsequently, their relationship deteriorated, leading to their separation in 2005, and they have not cohabited since then.

In 2010, the Respondent-wife initiated legal action by filing a complaint under Section 498A of the IPC and Sections 3 and 4 of the Dowry Prohibition Act in the Court of Chief Judicial Magistrate, Sheikhpura. She also lodged another criminal case under Section 498A read with Section 34 of the IPC.

However, the Appellant-husband obtained anticipatory bail in both cases, contingent upon him providing Rs. 5,000 per month for the Respondent-wife's maintenance and depositing an additional Rs. 5 lakhs within a year for their daughter's marriage. The anticipatory bail order also mandated that both parties would apply for mutual divorce following their daughter's marriage. Following this directive, the Appellant deposited Rs. 5 lakhs in his daughter's account, and her marriage took place in 2013.

Following their daughter's marriage, the Appellant-husband requested the Respondent-wife to file a mutual consent divorce petition under Section 13(B) of the Hindu Marriage Act, 1956. However, the Respondent-wife declined to initiate the divorce petition. Consequently, the Appellant filed the present divorce petition on two grounds: firstly, based on the commitment made by the Respondent-wife before the Court, and secondly, on the grounds that they have been living separately for over ten years.

In response, the Respondent-Defendant-wife appeared before the Family Court and submitted her written statement, whereby she stated that prior to 2004, the Appellant-husband terminated her pregnancy against her wishes.

The Respondent-wife admitted that the Appellant had entered into a second marriage in 2004 without her consent, despite her desire to continue living with him.

However, she claimed that she learned about the divorce petition filed by the Appellant-husband in the Court of District Judge, Munger, without her consent, after she filed a Maintenance Case. She alleged that the divorce petition was initiated to avoid making maintenance payments to her.

The primary issue before the court was whether the Appellant-Plaintiff had proved the grounds of cruelty and desertion to get a decree of divorce under Section 13 of the Hindu Marriage Act, 1956 against the Respondent-wife.

The court observed that the appellant had not raised allegations of desertion or cruelty in his pleadings, and the evidence presented beyond these pleadings could not be considered when granting the relief sought. Furthermore, it became apparent from the evidence that the husband had left his home himself, not the respondent-wife, who continued to reside in their village.

Regarding the cruelty aspect, the court found that the appellant had not included any specific allegations in his petition that would legally constitute cruelty under Section 13(I)(ia) of the Hindu Marriage Act.

The court noted that the appellant had testified during his examination-in-chief that, when he left his home to live in Patna, the respondent-wife, who remained in their village, had mistreated his parents. However, such allegations were not part of the original pleadings and were therefore not admissible as proof of the grounds for divorce.

“In the averment, though he has averred that Respondent-wife had lodged two criminal cases against him under Section 498A of the IPC, but he has not averred in the petition or even in his examination-in-chief that the criminal cases lodged by the Respondent-Defendant are false and fabricated and they were lodged in order to harass the Appellant-husband,” the court added.

“As such, we find that there is no merit in the present appeal warranting any interference in the impugned judgment. The Family Court has rightly dismissed the matrimonial case of the appellant seeking divorce. The present appeal is dismissed, accordingly, upholding the impugned judgment. Both the parties shall bear their own costs. Let the decree be drawn accordingly,” the court concluded.