Case Note & Summary
The matter arose from a Christian marriage solemnized on 1.12.2016. A male child was born to the first respondent on 20.09.2017. The appellant/husband filed a divorce petition under Section 10(1)(x) of the Indian Divorce Act, 1869, alleging adultery and cruelty against the first respondent/wife, with the second respondent named as the adulteror. The appellant claimed the first respondent had a pre-marital affair, left the matrimonial home soon after marriage, refused to consummate, and continued the affair. A village panchayat intervened but failed to reconcile them. The appellant also complained to the police. After notice, the respondents filed counters denying the allegations. The Family Court framed issues on adultery and cruelty. The appellant examined himself and one witness, marking four documents including a marriage certificate, complaint copy, and a CD of alleged conversation. The first respondent was set ex parte on 14.3.2019, and no evidence was adduced by either respondent. The trial court dismissed the petition, finding no proof of adultery. On appeal, the appellant argued that adverse inference should be drawn against the respondents for not testifying, relying on T. Tamilarasan v. Arokkiasamy and Vidhyadhar v. Mankikrao. The second respondent’s counsel opposed, contending no adverse inference should be drawn as the dispute was matrimonial. The High Court noted the legislative change: pre-amendment, adultery had to be pleaded with cruelty or desertion; after the 2010 amendment (effective 1.3.2019), proof of adultery is not mandatory. The Court observed that matrimonial relationship is a continuous fact and the parties had decided to separate. The first respondent had deserted the appellant since November 2017, did not contest the case, and had earlier filed a domestic violence case which was dismissed for default. Long separation and refusal to cohabit constituted cruelty under Section 10(1)(x). The Court set aside the Family Court’s order, dissolved the marriage, and allowed the appeal with no costs.
Headnote
A) Family Law - Divorce - Grounds under Indian Divorce Act, 1869 - Section 10(1)(x) Indian Divorce Act, 1869 - Pre-amendment legal position required adultery to be coupled with cruelty or desertion; post-amendment (Act 6 of 2010 w.e.f. 01.03.2019) removed the compulsion to prove adultery. Held that the amended provision applies to pending proceedings (Paras 8, 10). B) Family Law - Cruelty - Desertion Constituting Cruelty - Section 10(1)(x) Indian Divorce Act, 1869 - Long separation without justification and refusal to cohabit with the spouse amounts to cruelty. Held that first respondent’s desertion from November 2017 and lack of interest in resuming cohabitation established cruelty (Paras 9-10). C) Evidence - Adverse Inference - Section 114 Indian Evidence Act, 1872 - If a party does not enter the witness box and state their case, an adverse inference may be drawn. Held that non-examination of respondents did not automatically prove adultery; however, combined with other circumstances, the court found cruelty (Paras 5-6, 8).
Issue of Consideration
Whether the appellant is entitled to a decree of divorce on the ground of cruelty under Section 10(1)(x) of the Indian Divorce Act, 1869, given the allegations of adultery and desertion, and whether the Family Court erred in dismissing the petition
Final Decision
Appeal allowed. Judgment and decree of Family Court set aside. Marriage solemnized on 01.12.2016 dissolved by decree of divorce under Section 10(1)(x) Indian Divorce Act, 1869. No order as to costs.
Law Points
- Legal points not extracted
- Pre-amendment Indian Divorce Act
- 1869 required adultery coupled with cruelty or desertion for divorce
- post-2010 amendment
- adultery need not be proved
- long separation without justification and refusal to cohabit constitutes cruelty u/s 10(1)(x)
- adverse inference under Section 114 Evidence Act may be drawn if a party does not testify
