No Desertion/Cruelty If Wife Visits Her Parents' House Frequently Without Taking Husband's Consent: Allahabad High Court

The Allahabad High Court has observed that the act of the wife in visiting her parents house frequently without taking consent of her husband and other family members can neither constitute the offence of desertion nor amounts to cruelty.

The Bench of Justice Sunita Agarwal and Justice Krishan Pahal observed thus as it allowed an appeal filed by the Appellant/wife challenging the judgment and order passed by the Additional Principal Judge, Family Court, Bareilly under Section 13 of the Hindu Marriage Act granting divorce decree in favor of the husband.

The case in brief 

Appellant/Wife (Mohit Preet Kapoor) and Respondent/Husband (Sumit Kapoor) got married in December 2013.  In July 2017, the husband filed a divorce petition on the ground that the appellant, his wife, had left her matrimonial home in January 2015 without any rhyme or reason, in his absence, alongwith her family members.

The cause of action for filing the divorce petition was stated to have arisen in January 2015 when the appellant's wife had left her matrimonial home along with her father and brother and lastly in January 2017 when she refused to accompany the respondent to her matrimonial home.

Another ground for seeking divorce was that the appellant had refused to do the household work and misbehaved with the family members of the respondent. She used to go to her paternal home or to her relatives without any information to the respondent or his family members. And also that she filed matrominal cases against hi  and family members

Meanwhile, an application under Section 24 of the Hindu Marriage Act was filed by the wife in September 2017 seeking maintenance which was allowed and an amount of Rs.5,000/- per month was awarded to the appellant and Rs.2000/- for her daughter towards monthly maintenance.

On the other hand, the wife came up with a categorical statement that she alongwith her daughter was thrown out of her matrimonial home by the respondent in July 2016 and the respondent (husband) had not brought any legal action with a view to asserting his right to restitute his conjugal rights.

Court's observations 

At the outset, the Court noted that from the act and conduct of the parties, it cannot be inferred that the appellant had deserted her husband (respondent) with the intention to bring cohabitation permanently to an end by leaving her matrimonial home on 10.01.2015 in the absence of her husband.

"The appellant was pregnant at that time and she may have gone to her parents house which was barely 400 metres, for sometime. Further, the act of the appellant in visiting her parents house frequently without taking consent of her husband and other family members cannot constitute the offence of desertion on her part," the Court said.

Consequently, the Court concluded that the cause of action as alleged to have been accrued firstly on 10.01.2015 and lastly on 15.01.2017, the period of two years of desertion, was not proved from the material on record.

Further, the Court noted that when the application under Section 24 of the Hindu Marriage Act was filed, the husband contested the same on various pleas and did not come forward to pay interim maintenance even for his daughter.

"The respondent or his counsel never participated in this proceeding which shows that the respondent-husband himself is not willing to take care of his wife and even his minor daughter. It seems that he has deserted her wife on his own and is running away from his responsibility of a father towards his minor daughter," the Court further observed.

Against this backdrop, the Court set aside the conclusion arrived by the lower court that the appellant/wife had deserted her husband without any reasonable cause from 10.01.2015 and further on 15.01.2017.

Regarding the ground of cruelty, the Court observed that the ground of cruelty was not made out. The Court concluded that the respondent-husband could not prove cruelty from any act or conduct or behavior of the appellant by leading any evidence much less cogent evidence.:

"The act of the appellant in visiting her parent's house, in any case, even without the permission of the respondent does not amount to cruelty. The facts that the appellant was admitted in the hospital by the respondent at the time of her delivery or he had borne expenses for treatment of their daughter do not go against the appellant rather these facts support the case of the appellant that she did not leave her husband that too permanently with the intention of bringing the cohabitation to an end and has never done any act to deprive the respondent of the pleasure of fatherhood. "

With this, the divorce decree granted by the trial court was set aside and the Court directed the respondent to pay an amount of Rs.30,000/- per month towards the maintenance of his daughter. The wife was also granted maintenance as was decided by the lower court in September 2018.

Case title - Mohit Preet Kapoor v. Sumit Kapoor [FIRST APPEAL No. - 351 of 2020]

Case citation: 2022 LiveLaw (AB) 290

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