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Court said that if the husband had actually suffered mental cruelty during his stay with his wife, he would not have waited six years to move a divorce petition on that ground.
The Madras High Court recently observed that when a wife initiates litigation only to protect her property rights and her children's custody, the same can never be considered to be a ground for mental cruelty to the husband.
The bench of Justice R Vijayakumar observed so while dealing with an appeal filed by a wife against the decision of the district judge granting a decree of divorce to her husband on the ground of mental cruelty and desertion.
The district judge had noted that the husband had not deserted the wife rather he was forced to leave the matrimonial home and instead of taking any steps to restore the conjugal rights, the wife had initiated legal proceedings to give trouble to her husband.
The high court, however, pointed out that the divorce petition filed by the husband lacked pleadings with regard to the mental cruelty, desertion and also the deposition of the husband relating to the said allegation did not support his case.
Court said, "Mere living away from one of the parties to the marriage is not a desertion if it is accompanied by a reasonable cause and if it is without consent or against the wish of such party. It includes wilful neglect of the petitioner by other party to the marriage."
Regarding the claim of mental cruelty, court noted that there had already been a property dispute between the couple and it was the husband who had hidden this fact from the courts below.
Court further pointed out that the wife had alleged that the husband had contracted a second marriage for which she had earlier filed a case of bigamy. Court noted that the wife had even given details of the second wife's name, her address and the date and place of the marriage, however, the husband got acquitted in the same.
Court held that since the order of acquittal was not placed on record, therefore, it was difficult to say whether the husband had been acquitted on benefit of doubt or on the ground that a false allegation had been made against him.
"Therefore, filing of the above cases by the wife cannot be considered to be a mental cruelty caused by her to the husband," held the court.
Further, court underscored that on the other hand, it was the husband who had made a serious allegation of adultery against the wife and despite being unsuccessful before the criminal court, he had chosen to repeat the same allegation in the divorce proceedings.
"Therefore, the finding of the First Appellate Court that the attitude of the wife is to harass of her husband by filing one petition after another is not legally sustainable," the court opined.
Moreover, while pointing out that the divorce petition had been filed by the husband after six years after leaving the matrimonial home, court held that if really the husband had suffered mental cruelty, he would have immediately presented a divorce petition on the said ground when he left home.
Therefore, court held the district judge's decision to overturn the order of the trial court not granting a decree of divorce, liable to be set aside.
"It is clear that the parties to the marriage are living apart only due to the property dispute which is pending...," observed the court.
Case Title: Chandra vs. Selvaraj
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