Unproven Extra-Marital Affair Accusation Amounts To Mental Cruelty, Justifies Wife's Separation And Cannot Be Treated As Desertion: Karnataka High Court Dismisses Husband's Divorce Appeal
Sanchayita Lahkar
The Karnataka High Court Division Bench of Justice Jayant Banerji and Justice T.M. Nadaf has dismissed a husband's appeal seeking divorce on grounds of desertion, affirming a family court's earlier refusal to dissolve the marriage. The court held that a husband's unproven accusation of his wife having an extra-marital affair itself constitutes mental cruelty, which would justify her decision to live separately and cannot be construed as willful desertion on her part. The dispute arose from a matrimonial proceeding where the husband sought dissolution of marriage, alleging that his wife had abandoned him without cause since 2015. The court found that the husband failed to establish the essential element of animus deserendi — the deliberate intention to desert — and that a party seeking relief must prove their case on its own merits, regardless of whether the other side participates in the proceedings.
The appeal arose from a matrimonial dispute between a husband and wife whose marriage was solemnized on 04.12.2011 as per Hindu rites. A female child was born from the wedlock. According to the husband, the wife began frequently visiting her parental home after the child’s birth and ultimately left the matrimonial home in April 2015. He alleged that she maintained an extra-marital relationship and later initiated criminal proceedings against him under Section 498A of the Indian Penal Code, 1860 and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The criminal case ended in acquittal.
The husband issued a legal notice seeking reunion and subsequently filed a petition under Section 13(1)(b) of the Hindu Marriage Act, 1955 seeking dissolution of marriage on the ground of desertion. The wife remained ex parte before the Family Court. The husband examined himself and another witness and produced 18 documents. The Family Court dismissed the petition, holding that desertion was not proved. The present appeal challenged that decision.
The Court observed, “It is trite that mere living separately for considerable period of time may not amount to desertion.” It further stated, “What is important to be proved is the animus for separate living attributable on the party/spouse living apart.”
Referring to the evidentiary burden, the Court recorded, “Though the respondent has been placed ex-parte, there is no cogent evidence placed by petitioner to substantiate his claim of desertion by the respondent.”
On the allegation of extra-marital relationship, the Court stated, “Despite taking the contention that the respondent is having extra marital relationship, but the petitioner has failed to prove the same by leading substantial evidence and by producing substantial proof in line with such statement.” It further observed, “The allegation of extra marital relationship without proof would operate as mental cruelty and perhaps this may be the reason for the wife to live apart.”
Examining the statutory requirement, the Court stated, “The explanation appended to the said provision is very specific and clear that desertion means a party to the marriage living apart without there being any reasonable cause and without consent or against the wish of other spouse.”
On the absence of proof of intention, the Court recorded, “There is nothing on record in proof of such animus with the respondent to live apart depriving the petitioner of marital happiness.”
With respect to the burden of proof, the Court stated, “It is trite that burden is always on the party who approaches the Court for the relief sought in his case and not on the weakness of other side.” It further observed, “The party litigant has to prove his case on the strength of his own by substantial evidence to discharge the onus cast on him, irrespective of the question whether the other side has contested the case or not.”
The Court recorded, "A party who has approached the Court has to establish his case on his own, otherwise he is not entitled for any relief sought in his petition. In the case on hand as rightly observed by the trial Court, mere accusation of relationship with some other person itself is a mental cruelty and perhaps is the reasonable cause for the wife to live apart. We find that the trial Court having considered the entire material placed before it dismissed the petition, on the failure of the petitioner-husband to prove the ingredients of desertion a ground for dissolution of marriage, with valid reasons.”
The Court directed, “For the forgoing reasons, this appeal fails and resultantly is dismissed. We direct the Karnataka State Legal Services to pay a sum of Rs.10,000/- as legal remuneration for the legal assistance rendered by her in the present case.”
Advocates Representing the Parties:
For the Petitioners: Sri. K.S. Ganesh, Advocate
For the Respondents: Smt. Archana K.M., Amicus Curiae
Case Title: XXX v YYY
Case Number: Miscellaneous First Appeal No. 918 of 2021
Bench: Justice Jayant Banerji and Justice T.M. Nadaf
