The Goa bench of the Bombay High Court recently ruled that a husband insisting his wife live with him in a house he shares with his paramour is a valid reason for the wife to stay separately. This "separation" cannot be regarded as the wife's "free consent" to justify a divorce under the Law of Divorce (Divorce Act, 1910).
The HC was hearing an appeal filed by the husband challenging the order of the lower court dismissing his divorce plea on the grounds of “ill-treatment, complete abandonment of the conjugal domicile for at least three years and de facto separation, freely consented, for ten consecutive years”.
The two married in November 1992 and have a son. The husband claimed that the wife abandoned him in May 1993, within a year of their marriage.
The high court observed that the husband had an extramarital affair with another woman before and during the marriage, with whom he had two sons. The court said that the husband asked the wife, when she was pregnant, to move into the new matrimonial home where he resided with “A”. The wife refused and she and their son continued to reside with the husband’s parents. Although the wife filed domestic violence proceedings in 2010, the husband asserted that he would have abandoned his paramour had his wife joined him.
“The evidence on record demonstrates that the husband was living with 'A' in the new matrimonial home. The husband wanted the respondent-wife to reside in this matrimonial home. I find force in the submission of the respondent wife that this was a good enough reason for her to stay separately. Such de facto separation can never be regarded as 'freely consented' to afford a ground to the husband for divorce under Article 4(8) of the Law of Divorce,’ Justice MS Karnik observed.
The court ruled that the wife's decision to stay separately was justified and not a matter of "free consent" under Article 4(8) of the Law of Divorce. Although the couple had been separated for over ten years, the judge emphasised that such separation must be mutually agreed upon to qualify as a ground for divorce. The evidence indicated that the wife remained in the original matrimonial home, unwilling to live with her husband and the other woman, thus refuting the husband's claims of cruelty or abandonment.
Dismissing the husband’s appeal, the HC concluded that the wife did not consent to the separation, and thus, the husband could not use it as a ground for divorce.
