The Kerala High Court (Ernakulam Bench) has held that a wife’s demand for a separate residence away from the husband’s family, without sufficient reason or justification, by itself constitutes matrimonial cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1956. Where the wife’s allegation of ill-treatment by the husband and his mother is contradicted by her own admissions in recorded conversations, the demand for separate residence is rendered without any valid basis.
The Court specifically pointed out that prolonged desertion and separation of a spouse, even when not specifically pleaded as a ground for divorce, constitutes mental cruelty within the meaning of Section 13(1)(ib) of the Act.
Also read Allahabad HC: Cooling-Off Period Before Fatal Shooting Rules Out Exception 4 to Murder
The Division Bench comprising Justice Sathish Ninan and Justice P. Krishna Kumar noted that the wife’s own admission during cross-examination of the recorded telephonic conversation with the husband’s father contradicted her written objection that she had been ill-treated by the husband and his mother. The court found her explanation during re-examination that those statements were made only to avoid divorce to be too feeble to merit acceptance. The wife was evasive in answering questions about the contents of the recorded conversation between the husband and her brother, and the husband’s evidence withstood cross-examination.
The court accepted the husband’s version that the wife did not answer his calls and that he was compelled to contact her brother, who conveyed the twin conditions for her return. The court observed that a demand for a separate residence away from the husband’s family, without sufficient reason, by itself constitutes an act of cruelty. Since the wife’s allegation of ill-treatment was rendered improbable by her own admission in the telephonic conversation, the demand for a separate residence was without any valid justification.
The court further noted that the evidence clearly established desertion by the wife without justifiable cause, and that the parties had been living separately for at least nine years. Referring to the Allahabad High Court’s decision in Deepak Bose v. Shrabonee Bose [(2022 SCC OnLine All 1967), the court held that prolonged desertion and separation also constitute mental cruelty within the meaning of Section 13(1)(ib) of the Hindu Marriage Act. The trial court had failed to take note of any of these aspects and consequently arrived at an erroneous conclusion.
Briefly, the parties were married on May 14, 2015 under Hindu rites. The husband was working as an Electrical Engineer in Dubai, and the couple commenced their matrimonial life there in a rented residence shared with the husband’s parents. During the seventh month of pregnancy, the wife returned to Kerala and gave birth to a female child on Aug 26, 2016. Despite the husband’s repeated requests, the wife did not return to Dubai. The husband alleged that the wife, through her brother, conveyed two conditions for her return: she would not reside with his parents and required a separate two-bedroom flat.
The husband also raised grievances regarding the naming ceremony of the child being fixed without consulting him, the wife’s non-cooperation in arranging a visa for the child, and her refusal to communicate directly, routing all communication through her brother. The husband had earlier filed a petition for restitution of conjugal rights but withdrew it upon realising the matrimonial discord was irreconcilable. The Family Court dismissed his divorce petition, holding that there was no serious dispute between the spouses and that the only grievance related to interference by the mother-in-law.
