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Gauhati High Court Allows Divorce on the grounds of Separation from Parents, Calls it Cruelty

By Tanurag Ghosh      22 June, 2020 12:34 PM      1 Comments
Gauhati High Court Divorce Separation from Parents

The High Court of Gauhati allowed divorce for a man who was forced to stay away from parents by the wife. The court called it an act of cruelty and allowed the divorce on the quoted grounds. 

Under section 13 of the Hindu Marriage Act, 1955, a divorce can be granted, citing cruelty as a reason. 

Historically, the development of cruelty has been very peculiar. Under the Hindu Marriage Act, 1955, cruelty was not initially provided as a ground for divorce. Only judicial separation was allowed. The amendment brought in 1976 changed this stance of the Hindu personal laws and included it as a ground for divorce. 

The court has repeatedly said that circumstances amounting to cruelty cannot be listed as it depends heavily on the backgrounds of each case. Still, it has clarified that normal wear and tear in the course of marriage would not amount to cruelty. The petitioner has to prove that the act or circumstances are grave and weighty, and make it impossible for the petitioning spouse to live with the partner. 

The bench comprising of Chief Justice Ajay Lamba and Justice Soumitra Saikia passed the judgment granting divorce to the petitioner because his wife separated him from his stepmother. The court noted that under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, children are required to provide maintenance to their parents, including stepparents. 

The District Court initially dismissed the husbands divorce petition. While considering the appeal, the bench noted that there was evidence proving that the stepmother had no personal source of income and that she is a senior citizen. The court analyzed the agreement extensively, the execution of which was demanded by the wife before the husband and his family members sought a pre-arrest bail. 

The condition in the agreement was about leaving separately away from family members of the husband and that none of the family members would be permitted to visit. The court said that the Family Court ignored the fact that the husband was compelled and prevented from performing his statutory duties towards his stepmother under the provisions of the 2007 act. It concluded that this evidence was enough to construe the act of cruelty because the forced non-compliance would inevitably lead to criminal consequences.

The court also took note of the fact that the wife had filed cases under Section 498A of the Indian Penal Code, 1972, which deals with criminal punishment for cruelty by husband or his family towards the wife. The aforementioned case resulted in the acquittal of the husband. The court said-

"When a person undergoes a trial in which he is acquitted of the allegation of an offense under Section 498-A of IPC, leveled by the wife against the husband, it cannot be accepted that no cruelty has meted on the husband."

Similar reasoning was followed by the Supreme Court in 2016 while adjudicating a case of granting divorce where the husband was forced to live away from his parents. The apex court stated that no husband would tolerate this, and no son would like to be separated from his parents and other family members who are dependent on him.

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