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]

Refusal by Hindu-wife to wear 'sindoor' is cruelty against husband

Refusal by Hindu-wife to wear 'sindoor' and preventing husband performing duties towards his parents; is cruelty against husband.

   Upon due perusal of the judgment it is seen that the discussion of the court below does not refer to certain pertinent evidences, which were brought before the Court by the contesting parties while adducing evidences. As discussed above, it is not disputed by the respondent wife that there was indeed an agreement entered into by and between the appellant husband and the respondent wife whereby the appellant was required to provide separate accommodation to the respondent wife in a rented house away from the matrimonial house and that the appellant's family members were not to be permitted to come and visit them. The respondent wife categorically admitted in her cross- examination about the presence of the said clause in the said agreement. It is also seen from the evidence that the respondent had filed another case before Digboi Police Station being Digboi P.S. Case No.230/2013, under Sections 471/420 IPC pending before the SDJM, Margherita, District Tinsukia wherein, it was submitted at the bar that charge sheet has been filed against the petitioner and other accused. PW1/appellant also adduced in his evidence that the respondent had refused to wear 'sakha and sindoor' any more. Such statement was not confronted to the appellant during the cross-examination, and accordingly, the same remained uncontroverted and is therefore an evidence material for the purpose of this proceedings. Under the custom of Hindu Marriage, a lady who has entered into marriage according to Hindu rituals and customs, and which has not been denied by the respondent in her evidence, her refusal to wear ' sakha and sindoor' will project her to be unmarried and/or signify her refusal to accept the marriage with the appellant. Such categorical stand of the respondent points to the clear intention of the respondent that she is unwilling to continue her conjugal life with the appellant. Under such circumstances compelling the appellant husband to continue to be in matrimony with the respondent wife may be construed to be harassment inflicted by the respondent upon the appellant and his family members.

This evidence although available before  the Family Court during the evidence adduced, was not taken into account during the discussion in the impugned judgment. As such the Family Court erred in evaluating the evidence in the proper perspective. During the course of hearing it was submitted at the bar that the criminal proceedings pursuant to filing of Digboi P.S. Case No.159/2013, under Section 498(A) IPC against the appellant has been dismissed as the informant, namely the respondent wife was not pursuing the said proceeding. As such the allegation of subjecting the respondent wife to cruelty was not sustained. Such acts of lodging criminal cases on unsubstantiated allegations against the husband and/or the husband's family members amounts to cruelty as held by the Supreme Court. In this context, the Hon'ble Supreme Court in a recent judgment being Rani Narasimha Sastri vs. Rani Suneela Rani, 2019 SCC Online SC 1595 has held that filing of criminal cases like case under Sections 498(A) IPC etc. against the husband and the family members and which are subsequently dismissed/rejected by the Family Court, is sufficient to be construed as an act of cruelty by the wife. The Hon'ble Supreme Court has held as under:.....[Para No.15]

Plaintiff must plead and prove specific instances of cruelty or intention of desertion for obtaining divorce

Section 13 (I) (i-a) clearly provides for grant of decree of divorce on the ground of cruelty which can be physical or mental.

Plaintiff in order to succeed in a suit for divorce on the ground of cruelty must plead and prove specific instances of cruelty or allege and prove such allegations, which if considered singularly or cumulatively make cohabitation impossible.Section 13 (i) (i-b) of Hindu Marriage Act 1955, on the other hand provides for grant of decree of divorce on the ground of 'desertion'. However, in order to seek decree of divorce on the ground of 'desertion', plaintiff must prove that he/she has been deserted for a continuous period of not less than two years immediately, preceding the presentation of the petition. Therefore, what implies from plain reading of Section 13 (i) (i-b) of Act 1955 is that defendant must have deserted petitioner for a continuous period of two years prior to the date of institution of suit. The aforesaid requirement can be termed as a necessary pre- condition for seeking a decree of divorce on ground of desertion. Therefore, it is imperative on the part of plaintiff to plead and prove that defendant has deserted plaintiff and has continued doing so uninterruptedly for a period of two years, prior to the institution of suit. Apart from aforesaid, the issue relating to separate living, (factum deserdendi) and intention of committing desertion (Animus deserdendi) have to be established.[Para. No.31]

Allegations made in plaint are vague and general and do not give specific instances of cruelty. Further allegation of cruelty alleged in plaint if considered either singularly or cumulatively do not lead to the conclusion that co-habitation is not possible.

No infirmity in the dismissal of suit for divorce.