Introduction:

In a recent judgment, the Bombay High Court at Goa delivered a significant ruling on the issue of divorce where a husband sought to dissolve his marriage, claiming his wife had abandoned him. The case involved a husband insisting that his wife live in a house where he resided with his paramour, a situation the court found to be a justifiable reason for the wife to live separately. The case, Arshad Khalifa vs. Gulzar Khalifa (Second Appeal 29 of 2024), was adjudicated by a single-judge bench of Justice Makarand Karanik. The court concluded that the separation caused by the husband’s extramarital relationship could not be considered the wife’s “free consent” to separation, thereby ruling against the husband’s divorce claim under the Law of Divorce (Divorce Act, 1910).

Husband’s Arguments:

The husband, represented by advocates Shivan Desai and M. Viegas, argued that his wife had willfully abandoned him, leading to a de facto separation that had lasted for more than a decade. He contended that his wife refused to engage in a conjugal relationship just one year after their marriage, which was registered in November 1992. According to him, she left the matrimonial home in May 1993, refusing to return despite his repeated requests.

The husband claimed that this prolonged separation amounted to abandonment, which, under Article 4(8) of the Law of Divorce, constituted a legitimate ground for divorce. He further argued that the wife had not returned to live with him for almost two decades, thus demonstrating her intent to permanently end the marital relationship. He also stated that he would have left his paramour if his wife had agreed to move back in with him.

He asserted that his wife’s filing of domestic violence proceedings in 2010 was irrelevant and an attempt to malign his character. His defense was that his paramour had been in his life before the marriage and, though he had children with this other woman, his wife’s refusal to reconcile or return to the matrimonial home should be considered abandonment.

Wife’s Arguments:

The wife, represented by advocate Prachi Sawant under a legal aid scheme, refuted the husband’s claims. She argued that her separation from her husband was not by free will but was forced upon her due to his extramarital relationship and his insistence that she live in a house where he resided with his paramour. She explained that this demand made reconciliation impossible and that her husband’s actions drove her away.

The wife presented evidence showing that her husband had been living with another woman, with whom he had an ongoing relationship prior to their marriage and with whom he had fathered two children. She further stated that while she was pregnant with their child, her husband insisted that she move into the new matrimonial home where he lived with his paramour. Refusing to subject herself to such humiliation, she chose to stay with her in-laws and continued to reside there with her son for over two decades.

The wife argued that her separation was not a case of willful abandonment or cruelty on her part but rather the result of her husband’s infidelity. She emphasized that her separation could not be considered freely consented, as it was her husband’s actions that left her no other choice.

Court’s Judgment:

After considering the arguments and evidence from both sides, the Bombay High Court at Goa ruled against the husband’s divorce claim. Justice Makarand Karanik noted that the husband’s demand that his wife live with him and his paramour was unreasonable and emotionally harmful to the wife. The judge emphasized that the wife had every right to live separately in such circumstances and that her separation could not be deemed voluntary consent to satisfy the legal grounds for divorce.

• Infidelity and Coercion in the Matrimonial Home: The court found the husband’s extramarital relationship to be a significant factor contributing to the separation. Justice Karanik highlighted that the husband had been in a relationship with this other woman even before his marriage and had two children with her. His demand that his pregnant wife live with him and the other woman was deemed highly unreasonable and emotionally damaging.
• No Free Consent to Separation: Justice Karanik further stated that for a separation to serve as grounds for divorce under Article 4(8), it must be shown that the separation was freely consented to by both parties. In this case, however, there was no evidence that the wife had freely chosen to live separately. Rather, she had been compelled by her husband’s infidelity and his unreasonable demands. The separation, while existing for ten years, was not mutually agreed upon but rather forced upon the wife.
• Wife’s Continued Residence with In-Laws: The court also took into account the fact that the wife had continued to reside with her in-laws and her son in the original matrimonial home for over two decades. This was inconsistent with the husband’s claim that she had abandoned him, indicating that the separation was caused by his actions.
• Dismissal of Husband’s Divorce Petition: In light of these findings, the court dismissed the husband’s second appeal, upholding the decisions of both the trial court and the first appellate court. The court concluded that the husband could not use a separation caused by his own infidelity as grounds for divorce.