Family court ruling on divorce to husband on grounds of 'cruelty' set aside

NT Correspondent

Bengaluru: The Karnataka High Court has set aside the judgment and decree passed by a Family Court on divorce stating that the order cannot be granted on grounds that the party did not even plead for. The Family Court had granted the divorce on a petition filed by a husband on grounds of cruelty and desertion. It had held that the wife had received donor sperm from another person which amounted to cruelty to the husband.

However, the husband’s petition had not pleaded on this ground. “In the absence of any pleading, the family court in our considered opinion has clearly travelled beyond the case set up by the husband and has granted a decree of divorce on the ground which was not even pleaded by the husband.

For the aforementioned reasons, the judgment and decree passed by the family court cannot be sustained in the eye of the law. It is accordingly set aside and the petition filed by the respondent/husband under Section 13 of the Hindu Marriage Act is dismissed,” the Division Bench of Justice Alok Aradhe and Justice Vijaykumar A Patil said in their judgment.

The 31-year-old wife filed the appeal in the High Court challenging the 2017 order of the family court which had granted a divorce on the ground of cruelty and desertion. The couple were married in 2011 and had a child in 2013. The husband filed for divorce in 2015 alleging that his “wife was not cooperating with the husband in sexual matters.”

It was alleged that she had left the matrimonial home and used to regularly scold him in very vulgar language. It was also alleged that the wife had “begotten test tube baby without the knowledge and consent of the husband.” He also claimed that there was no cohabitation between them since August 2011.

The family court ruled that the wife had become pregnant with donor semen without the consent of the husband which amounted to cruelty. It held that the ground of cruelty and desertion was proved and granted divorce. The HC in its judgement said that the family court had not recorded a finding that the parties were living separately for a continuous period of two years prior to the presentation of the petition.

Therefore the charge of desertion was not proved. The HC also noted that the husband had not pleaded cruelty from the wife in his petition. “It is evident that he has stated that he had given his semen on one occasion,” the HC noted. Setting aside the divorce, the HC said, “It is also relevant to mention here that it is not the case of the respondent/husband that since, the appellant/wife became pregnant by taking semen of some other person, therefore, it amounts to cruelty.”