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Synopsis

The Delhi High Court recently held that separating a child from a father who never shows any neglect for the child is an extreme act of mental cruelty.

The court was hearing an appeal against a divorce decree, granted on grounds of desertion and cruelty in favour of the respondent-husband.

The plea of cruelty against the husband for being in an extra-marital affair was dismissed by the court stating that the same had been condoned by the appellant-wife when it first came into her knowledge and therefore could not be raised at the present stage.

A division bench of Justice Suresh Kumar Kait and Neena Bansal Krishna, while upholding the divorce decree dated 04.09.2018 on grounds of cruelty, observed, “Such conduct from an educated spouse cannot be expected and such complaints as made by her further proves her vengeance to bring down the respondent. Once vindictiveness has crept in and the appellant had marched on to the war path filed only complaints in the Department but also initiated various civil/legal cases since 2011, i.e., for about 12 years and has even alienated the daughter from the respondent, it leads to irresistible conclusion that various acts of cruelty have been committed towards the respondent.”

Reliance was inter-alia placed on Prabin Gopal v. Meghna, 2021 SCC OnLine Ker 2193 in this regard.

Noticeably, the respondent had expired on 02.12.2021 and his legal heirs, that is, the mother and daughter were impleaded as a party in the present appeal.

“Once an act which lasted for a short while had been condoned, it cannot be taken as an act of cruelty while deciding the petition for divorce”, Court added.

An appeal was filed under Section 19 of the Family Courts Act, 1984 by the appellant-wife against the judgment dated 04.09.2018 granting divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955, on the grounds of cruelty and desertion.

The case of the respondent-husband was that he being an Army officer, used to get posted at different places but the appellant never displayed any inclination to join him at his place of work.

The appellant contended that the respondent never had any intention of being in a matrimonial relationship as he purposely did not opt for family accommodation at any of the places of his posting. It was further added that the respondent withdrew himself from the appellant’s company whenever she used to visit him and mostly remained busy over calls, with his male and female friends.

The parties got married as per Hindu customs and rites on 06.05.1996 and a daughter was born from the said wedlock on 21.12.1998.

“The child has not only been totally alienated, but has also been used as a weapon against the father. Nothing can be more painful for a parent to see the child drifting away and being totally against the father. This assumes some significance in the light that the father never failed to provide for the child either for her education or otherwise or to provide army facilities as were available. So much so, 10% of his salary was being paid to the child for her maintenance which was subsequently increased to 20%”, the court further observed.

Case Title: … v. … | MAT. APP. (F.C.) 309 of 2018