Birth Of Daughter From Another Woman Shows Husband’s Extra-Marital Relationship; Wife Not Guilty Of Desertion: Himachal Pradesh High Court
Isabella Mariam
The High Court of Himachal Pradesh, Single Bench of Justice Vivek Singh Thakur dismissed a husband’s appeal seeking divorce on grounds of cruelty and desertion, holding that the birth of a daughter from another woman showed he was in a relationship while still married. The Court found that such conduct forced the wife to live apart and that she could not be blamed for desertion. Justice Thakur observed that the birth of the child clearly indicated the husband’s relationship outside marriage, which justified the wife’s decision to live separately and warranted no interference with the lower court’s refusal to grant divorce.
The appellant had filed a petition under Sections 13(1)(ia) and (ib) of the Hindu Marriage Act seeking dissolution of his marriage with the respondent. The couple was married on 30 May 1993 in Shimla according to Hindu rites. The husband alleged that his wife deserted him in January 1994 without cause and treated him with cruelty by refusing to cohabit at his residence in Tattapani, where he conducted his business. The husband claimed that his wife, having been raised in Shimla, found it difficult to adjust to rural life and returned to her parental home, despite his repeated efforts to bring her back.
The husband contested these claims, asserting that she had been left at her parental home by the appellant, who thereafter never returned to take her back. She further alleged that the appellant had contracted a second marriage without obtaining a divorce from her. The respondent’s application to the Himachal Pradesh Women Commission in 2001, following her mother’s death, alleged that the husband had abandoned her and remarried. She also sought the return of her jewellery and household articles and requested maintenance. In 2006, a magistrate granted her maintenance of Rs. 3,000 per month under Section 125 of the Code of Criminal Procedure, a decision upheld by the Sessions Judge. Evidence on record, including a parivar register entry showing the birth of a daughter on 5 March 1996, indicated that the husband was in a subsequent relationship.
The Court noted: “Marriage between the parties was solemnized on 30.5.1993. The parties are residing separately since January 1994. According to appellant, respondent left the company, whereas according to respondent, appellant left her in her parental house at Shimla and never returned to take her back.”
The Court referred to the respondent’s 2001 application in which she alleged that the appellant “had solemnized second marriage with another woman without any divorce or consent.” Justice Thakur observed that the appellant had not denied this allegation during the settlement proceedings before the Commission. The Court further found that despite an agreement dated 20 June 2002 for the return of dowry articles, “it appears that neither respondent went to Tattapani nor appellant returned the articles.”
Discussing the maintenance proceedings, the Court observed that in the appellant’s reply to his wife’s Section 125 CrPC petition, “allegation was leveled that respondent had developed illicit relations at Shimla.” However, the Court noted that these allegations were “not substantiated and it was found by the Court that respondent was not residing separately without any reason as maintenance... was awarded.” Justice Thakur recorded that such false allegations constituted mental cruelty: “The allegation leveled by the appellant alleging illicit relation of respondent were sufficient to compel the respondent to live separately.”
The Court found that the appellant’s denial of having remarried was inconsistent with documentary evidence. It noted that the parivar register recorded a daughter born in 1996, which “clearly depicts that either appellant was already in relationship with someone or developed relations thereafter.” Justice Thakur added that “even if he has not solemnized marriage, he is living in live-in relationship since, at least, 1995.” The Court concluded that such conduct justified the respondent’s decision to live apart and that “at any stretch of imagination, [it] cannot be treated as desertion or cruelty on behalf of respondent.”
Justice Thakur observed: “The statement of respondent that she was not ready to live with the appellant is not a proof that she was not willing to live in the company of appellant in his village, but is a statement made in view of subsequent events.” The Court accepted that the respondent’s refusal to live with the appellant was justified under the circumstances.
“Since January 1994 parties are living separately and birth of daughter of Desh Raj on 5.3.1996 clearly depicts that either appellant was already in relationship with someone or developed relations thereafter… which was sufficient ground for the respondent to leave the company of the appellant.” The judgment added that this situation “cannot be treated as desertion or cruelty on behalf of respondent to the appellant, rather it is appellant on account of whose cruelty respondent has been compelled to live separately.”
“In view of above, no interference is warranted in the impugned judgment and accordingly appeal is dismissed.”
Advocates Representing the Parties
For the Appellant: Mr. G.C. Gupta, Senior Advocate, along with Ms. Meera Devi, Advocate, vice Mr. Deepak Gupta, Advocate.
For the Respondent: Mr. Parmod Singh Thakur, Advocate.
Case Title: Desh Raj Gupta v. Urmila Gupta
Neutral Citation: 2025: HHC:32992
Case Number: FAO (HMA) No. 304 of 2014
Bench: Justice Vivek Singh Thakur
