Divorce can be granted if the ground of cruelty or desertion is partly proved where sentiments and emotions between spouse have dried up

In the present case the petitioner husband, aged 52 years, is admittedly a small businessman and his 41 years old respondent wife is a house wife. The petitioner has proved his case that his wife abandoned him along with their daughter when he lost his vision and was in dire need of their company and the support of his wife. His illness is not denied by the respondent wife. Such conduct of the wife must have hurt the sentiment of the petitioner husband and affected their relationship. After abandoning her husband, she lebelled allegations of harassment for dowry against her husband in a proceeding under Section 498A IPC followed by a proceeding under the Protection of Women from Domestic Violence Act. She not only prosecuted her husband, the elder sister of her husband was also implicated in the case instituted by her under Section 498A IPC though both of them were ultimately acquitted in appeal. [Para No.40]

    It is true that the wife is not expected to endure the harassment meted out to her by her husband or in-laws without raising protest or filing appropriate proceeding against them, but in the given case the cumulative effect of the facts and circumstances emerging from the evidence on record lead us to a fair inference that her unprovoked humiliating treatment caused serious mental pain and suffering to her husband which no doubt constitutes cruelty.[Para No.41]

    Admittedly the present appellant wife and her respondent husband are staying apart from 12.01.2007. They are thus living separately for more than 13 years. During this period they never stayed together even for a single day which indicates that their sentiments and emotions have dried up and there is hardly any chance of restoration of their conjugal life.[Para No.42]

    In this regard, the Apex Court in Naveen Kohli vs. Neelu Kohli reported in (2006) 4 SCC 558 held as follows:

"74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties."[Para No.43]

    The Apex Court, while laying down the broad parameters for determination of mental cruelty for the purpose of granting divorce in Samar Ghose vs. Jaya Ghose reported in (2007) 4 SCC 511 reiterated the same principle and held as follows as one of those parameters:

"101...(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."[Para No.44]

    As noted above, this court in the case of Biswanath Baspar (cited supra) had also taken the view that if other grounds are made out or the grounds of cruelty or desertion is partly proved, then, if the marriage is dead, the court may take a view of granting divorce.[Para No.45]

    In the present case, as we have noted above, both the grounds of cruelty and desertion existed on the date of filing of the divorce petition. Moreover, there is no denial of the fact that the husband and the wife are staying apart for more than 13 years and during this period they never lived together at any point of time. Efforts of the mediator appointed by this court for reconciliation of their relationship also failed. Therefore, we are of the considered view that clearly this is a case of irretrievable breakdown of marriage and it is quite impossible to save the marriage.[Para No.46]

Tripura High Court

Smt. Aparna Dey

Vs.

Shri Alok Dey

Decided on 09/09/2020