'No cruelty if wife staying with in-laws'

NT Correspondent

Bengaluru: The wife not staying with her inlaws while the husband is working elsewhere, does not constitute ‘cruelty’ and ‘desertion,’ the High Court has said while quashing the order of a Family Court which had granted divorce to the couple on this ground.

The 41-year-old wife from Hassan approached the High Court with an appeal against the 2019 order of a Family Court which had granted the decree for dissolution of the marriage by accepting the plea of cruelty and desertion under Section 13(1) (i-a) and (i-b) of the Hindu Marriage Act made by the husband. The husband is a constable while the wife is a homemaker. They married in August 2000 and have a son born in 2003. The husband alleged that the wife was unwilling to stay in his native place with his aged parents and preferred to stay in the city.

Unwillingly, he stayed with her in Hassan. Later he was transferred to different places but the wife and son continued to stay in Hassan. Alleging she had left him, the husband filed a petition seeking restitution of conjugal rights. He however withdrew it and filed a petition seeking dissolution of marriage.

The wife however claimed that the husband was transferred to different places but he would go there alone leaving her and their son back in Hassan. She claimed to be staying in Hassan for the sake of their son’s education. The Family Court accepted the contentions of the husband and granted divorce which the wife challenged in the HC.

The wife’s appeal was heard by the division bench of Justice Alok Aradhe and Justice Anant Ramanath Hegde. The HC in its judgement said that the husband claiming that his duty was a priority was not a justification for his decision not to take his wife and son to places where he is transferred.

“It is also required to be noticed that the husband was not staying in the native place and he was staying in different places as he was transferred. The husband wanted his wife and the son to be in his native place since he was away from his native. This being the fact, the act of the wife continuing to stay in Hassan along with her son, not going to the native place of her husband where he was not staying, cannot be termed as an act of desertion.”

Setting aside the order of the Family Court, the HC said, “The Family Court has also not properly appreciated the law applicable to the case. The Family Court has concluded that the wife has deserted the husband on the premise that the wife has not filed a petition seeking restitution of conjugal rights. Omission on the part of the wife in filing a petition seeking restitution of conjugal rights cannot be termed as an act of desertion on the part of the wife.”