Living together in marriage not ‘irreversible act’: Delhi HC | Delhi News


Observing that living together in a marriage is not an “irreversible act”, the Delhi High Court on Tuesday upheld a family court order that granted divorce to a man on the ground of cruelty.

A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna observed that under the Hindu Marriage Act (HMA), divorce is granted only on the grounds of adultery, cruelty, desertion etc., and irretrievable breakdown of marriage has not been recognised as a ground. It said that marriages under the old Hindu law were considered as a sacrament and that there was no concept of divorce.

The bench also noted that “despite phenomenal change in social ethos”, the HMA recognises the ground of divorce only on “fault theory”.

“Unless the opposite party was shown to be at fault (adultery, cruelty, desertion or other grounds as specified under Section 13 of HMA) no divorce can be granted. With the passage of time, experience has shown that many a times, the marriages do not work because of incompatibility and temperamental differences, for which neither party can be blamed. However, since only fault theory prevails, these parties end up warring with each other for years to come only because they have no way of exiting this relationship. While many debates have been held to introduce ‘irretrievable breakdown of marriage’ as a ground, it has not met the approval and consent of the legislation,” the bench said.

It further observed that it is bound by the limits defined under the HMA and unless the fault of the other spouse is shown, “the parties are left to suffer acrimonious relationship with no way to exit”.

Dismissing a woman’s appeal against a February 25, 2020 family court order that granted divorce to her husband on the ground of cruelty under the HMA, the bench observed that the parties had been living separately for 15 years and there was no chance of reconciliation between them. The long separation “peppered with false allegations, police reports and criminal trial” by the woman had become “a source of mental cruelty”.

Any insistence either on continuing this relationship or modifying the family court order will only be inflicting further cruelty upon both parties, the court said.

“Living together in a marriage is not an irreversible act. But marriage is a tie between two parties and if this tie is not working under any circumstances, we see no purpose in postponing the inevitability of the situation,” the bench added, dismissing the woman’s appeal.

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The parties got married in 2006 and had a child the next year. However, the woman left her matrimonial home in 2008. The husband sought divorce on the ground that the wife was aggressive, quarrelsome and violent towards him and his family members, frequently left the matrimonial home without informing him and filed numerous false complaints against him and his family.

The woman argued that the divorce petition was frivolous and the decree granted was liable to be rejected. She said that she was harassed on account of dowry and was beaten. The woman had also filed an FIR in 2016 under sections 498A (husband or relative of husband of a woman subjecting her to cruelty) and 406 (punishment for criminal breach of trust) of the Indian Penal Code against her husband and his family members.

The family court observed that as per the man’s testimony, the marriage was very good in the beginning but he had “proved” various incidents in his testimony which “clearly” reflected that he was subjected to cruelty by the woman. The family court further said that “no adverse inference can be drawn against the respondent/husband and his family members merely because of registration of case under Section 498A IPC”. The family court said that there was “sustained cruelty” committed by the appellant/wife upon the respondent/husband over a period of time and allowed the man’s plea for divorce on the ground of cruelty under the HMA.

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