Source: Allahabad High Court  

Why in News?

The Allahabad High Court recently ruled that a 21-year separation, compounded by criminal prosecution and harsh words, demonstrates an irretrievable breakdown of marriage. The court observed that the lack of effort to reconcile and the pursuit of criminal charges only after divorce proceedings indicate that the marriage cannot be retrieved. 

• Justices Saumitra Dayal Singh and Justice Donadi Ramesh were held in Smt. Arti Tiwari v. Sanjay Kumar Tiwari. 

What was the Background of Smt. Arti Tiwari v. Sanjay Kumar Tiwari? 

• The marriage between Sanjay Kumar Tiwari (Respondent) and Smt. Arti Tiwari (Appellant) was solemnized on 2nd March 2000. 
• At the time of marriage, Respondent was employed as a Class-III employee at the Rajkiya Bachat Karyalaya in Bareilly. 
• Respondent 's family, including his father and siblings, resided in Unnao, while his family originally belonged to Kanpur Nagar. 
• After some time of the marriage, Appellant expressed concerns about feeling unsafe in the marital home due to the presence of only male family members. 
• In response to his wife's concerns, Respondent relocated with her to Bareilly, where he was working at the time. 
• The appellant did not stay in Bareilly for long, citing her desire to practice law in Kanpur Nagar. 
• Respondent subsequently applied for and obtained a transfer to Kannauj to be closer to his wife. 
• Respondent then rented accommodation in Kanpur Nagar to facilitate cohabitation with his wife. 
• Despite these efforts, the Appellant allegedly preferred to stay at her parental home in Kanpur Nagar, only intermittently staying with her husband. 
• The couple had a daughter born on 5th September, 2002. 
• Respondent claims that Appellant finally left the marital home in January 2003. 
• Appellant filed proceedings under Section 125 of the Criminal Procedure Code, resulting in a monthly maintenance award of Rs. 6,000. 
• Respondent filed for divorce on 1st August 2006. 
• On 14th November 2006, approximately three months after the divorce petition was filed, Appellant lodged a criminal case (No. 687 of 2006) against Respondent and his family members, alleging dowry demands and cruelty. 
• The criminal case initially resulted in an acquittal, but Appellant appealed the decision and secured a conviction against Respondent and his brother-in-law. 
• Due to the conviction, Respondent was imprisoned for over a month and suspended from his job for two years. 
• Respondent and his brother-in-law were subsequently granted bail by the High Court in a Criminal Revision proceeding. 
• The parties have lived separately for about 21 years as of the court proceedings. 

What were the Court’s Observations? 

• The court noted that the respondent (husband) had made significant efforts to prove desertion by the appellant (wife), which were not effectively controverted during cross-examination. 
• The court found no reason to doubt the trial court's decision to believe the respondent's testimony regarding the appellant's unwillingness to cohabit. 
• While the respondent's allegation of the appellant threatening to file false criminal cases was not proven, the court acknowledged that the appellant's rude conduct and threats towards the respondent were established. 
• The court observed that for six years of marriage, the appellant had not made any complaint regarding dowry demands or cruelty to any authority. 
• The criminal case filed by the appellant was noted to have been lodged three months after the institution of divorce proceedings by the respondent. 
• The court recognized that the respondent's stance on reconciliation had changed after suffering imprisonment and job suspension due to the criminal case pursued by the appellant. 
• Without making a definitive conclusion on the merits of the criminal case (as it was under revision), the court found that the critical element of cruelty was present in this case's circumstances. 
• The court observed that desertion over a long period in a young marriage, coupled with harsh words and a lack of effort to cohabit, constituted grounds for dissolution of marriage. 
• The filing of a criminal case alleging dowry demands after the institution of divorce proceedings, and its pursuit through appeal to secure a conviction, was seen by the court as indicative of an irretrievably broken marriage. 
• The court held that the long separation of 21 years, combined with the other circumstances of the case, did not warrant interference with the lower court's order of dissolution. 

What is Judicial Separation Under the Hindu Marriage Act, 1955? 

• About  
  • The husband or the wife can seek for the Judicial separation under Section 10 of the Hindu marriage Act 1955. 
  • The Separation can be claimed by filing the petition in the competent court for judicial separation. 
  • The grounds for judicial separation grounds are specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2). 
  • These grounds are the same as those on which a petition for divorce might have been presented. 
  • Once the court passed the separation order, the spouses are no longer bound to have cohabitation, and both can live separately. 
• Eligibility to File for Judicial Separation: 
  • Either party to a marriage may file a petition for judicial separation.  
  • This right applies regardless of whether the marriage was solemnized before or after the commencement of the Hindu Marriage Act, 1955. 
• Legal Effect of Decree:  
  • Once a decree for judicial separation is passed, the petitioner is no longer obligated to cohabit with the respondent.  
  • The marriage remains legally intact, but the parties are permitted to live separately. 
• Rescission of Decree: 
  • Either party to the marriage may apply for rescission of the decree of judicial separation. 
  • The application for rescission must be made by petition to the court. 
• Court's Power to Rescind:  
  • The court has the discretion to rescind the decree of judicial separation. 
  • Before rescinding, the court must be satisfied of the truth of the statements made in the petition for rescission.  
  • The court may rescind the decree if it considers it just and reasonable to do so. 
• Implications of Rescission:  
  • If the decree is rescinded, the legal obligation to cohabit is reinstated.  
  • The parties return to the status of a married couple without legal separation. 
• Procedural Aspects:  
  • The petition for judicial separation must be presented to a competent court of jurisdiction.  
  • The petition for rescission must follow the prescribed format and procedures as per the Act and relevant rules. 
• Time Period:  
  • There is no specified timeframe within which a petition for rescission must be filed.  
  • Parties can seek rescission at any time after the decree of judicial separation has been passed. 
• Burden of Proof:  
  • The burden of proving the grounds for judicial separation lies with the petitioner.  
  • For rescission, the burden lies with the party seeking to rescind the decree to satisfy the court of the truth of their statements and the justness of their request. 

What is Divorce Under the Hindu Marriage Act, 1955? 

• Applicability:  
  • Any marriage solemnized before or after the commencement of this Act may be dissolved by divorce. 
• Petitioner:  
  • Either the husband or the wife may present a petition for divorce. 
• Common Grounds for Divorce (for both husband and wife):  
  • Adultery: Voluntary sexual intercourse with any person other than the spouse after marriage.  
  • Cruelty: Treating the petitioner with cruelty after marriage.  
  • Desertion: Deserting the petitioner for a continuous period of not less than two years immediately preceding the petition. 
  • Conversion: Ceasing to be a Hindu by converting to another religion.  
  • Mental Disorder: Incurable unsoundness of mind or continuous/intermittent mental disorder making it unreasonable to expect the petitioner to live with the respondent.  
  • Venereal Disease: Suffering from a communicable form of venereal disease. 
  • Renunciation: Renouncing the world by entering any religious order.  
  • Presumption of Death: Not being heard of as alive for seven years or more. 
• Additional Grounds Based on Previous Decrees:  
  • Non-resumption of cohabitation for one year or more after a decree of judicial separation. 
  • Non-restitution of conjugal rights for one year or more after a decree for restitution of conjugal rights. 

Additional Grounds for Wife:

• Husband's bigamy (for marriages before the Act's commencement).  
• Husband's guilt of rape, sodomy, or bestiality since the marriage.  
• Non-resumption of cohabitation for one year or more after a maintenance decree/order.  
• Repudiation of marriage solemnized before the wife turned 15, if repudiated between ages 15-18. 

Difference between Divorce and Judicial Separation