The Allahabad High Court while allowing an appeal observed that unrebutted evidence of the minor daughter substantiating allegations of cruelty made by the mother sufficient ground for divorce.
The Division Bench of Justice Saumitra Dayal Singh and Justice Donadi Ramesh passed this order while hearing an appeal filed by Manjusha Servesh Joshi.
The appeal has been filed under Section 19 of the Family Court Act arising from the order dated 27.02.2018 passed by Judge, Family Court/Fast Track Court, Bareilly in Marriage Petition, filed under Section 13 of the Hindu Marriage Act.
Undisputedly, the marriage between the parties was solemnized on 03.07.1999. Two children were born to the parties in the year 2000 and 2003 respectively. Both are in the custody of the appellant. Before the Court below, it has been established that the parties cohabited till April, 2011.
During that period, the appellant secured a job in Suriname (South America), where the parties cohabited. They developed serious differences at Suriname. During that period, the appellant describes having been physically and verbally assaulted by the respondent. Numerous incidences of cruelty were cited. She also alleged adultery committed by the respondent. Since the job assignment of the appellant got over, she returned to India along with her two children.
Thereafter, the respondent is disclosed to have persuaded the appellant to revisit South America. The appellant along with her children is described to have gone back on the assurance given by the respondent. However, his cruel behaviour continued. Again, allegations of adultery have been made.
Since, the respondent did not appear in the proceedings, the Court below proceeded ex parte. In that, the evidence of the appellant and her sixteen years old minor daughter were recorded. More than the appellant, the minor daughter of the appellant wholly supported the allegation of cruelty. She described acts of cruelty by disclosing that the respondent used to throttle the appellant on many occasions. She also made specific allegations of the respondent having physically assaulted the appellant as also her two children.
Further, she clearly disclosed that the respondent used to lock up the appellant and her two children, from outside and leave for days. For those reasons, the appellant and her children are described to have returned permanently on 31.08.2013. Daughter further disclosed that a criminal case had been registered by the appellant against the respondent at Suriname, with respect to physical assault made.
The above evidence led by the appellant and her daughter was not doubted or controverted, to any extent. No material existed to doubt the correctness of those statements made by the witnesses, especially the daughter, the Court noted.
“Having heard counsel for the appellant and perusal of the record, we find it difficult to sustain the finding of the Court below that the allegations of cruelty were vague and generic or formal. Though, cruelty as a ground for divorce remains hard to define and no straight jacket formula has been adopted at the same time, once the minor child of the parties had specifically deposed that the respondent had tried to throttle her mother on many occasions and that he habitually locked up his family from outside and left them to fend for themselves in that situation for days, no other evidence of cruelty was required to be led in face of that unrebutted evidence.
Thus, the allegation of adultery may have remained to be established, yet the act of cruelty committed by the respondent was more than enough to grant the decree of divorce. We also take note of the fact that the parties have lived separately for more than 11 years as the respondent has perhaps not returned to the country and has not made any effort to cohabit with the appellant for long years. As to any other relief, counsel for the appellant states that the appellant seeks no amount towards permanent alimony or other relief”, the Court observed while allowing the appeal.
The Court set aside the order dated 27.02.2018. Marriage between the parties is dissolved from today, on the grounds of cruelty.