Having an affair outside marriage amounts to cruelty, the Delhi high court observed while setting aside a trial court’s judgement granting divorce to a man who was in an ‘open adulterous relationship’.
A bench of justices Pradeep Nandrajog and Yogesh Khanna allowed the appeal filed by a woman, who had challenged the divorce granted by a trial court on her husband’s plea, saying the man was involved in an ‘extra marital affair’.
The couple tied the knot in July 1993 and the husband had moved trial court seeking divorce in July 2004. The court had granted divorce in May 2015 on various grounds, including the woman’s demand for share in ancestral house and denial of sex to her husband. But, while the case was going on in the trial court, the husband had fathered a child with his lover in 2008. He also married his lover after the trial court granted divorce.
But his wife had denied charges by saying her husband had an extra-marital relationship with another woman and thus she asked for a share in his property to secure her child’s future.
The Delhi high court bench observed that the man fathered a child with his lover at a time when the marriage was still in effect and this amounts to cruelty.
“Having an affair during the subsistence of marriage by either of the spouses amounts to cruelty upon the other,” the high court said.
“The totality of evidence rather establishes the mental cruelty upon the appellant (wife) rather than upon the respondent (husband) herein who is now stated to be blissfully married with a woman with whom he had a son during subsistence of marriage with the appellant (wife) herein,” the bench said in its judgement.
About the man’s allegations that he was treated ‘cruelly’ by his wife and she had demanded ‘share in his ancestral property’, it said, “The conduct of the appellant (wife), even if true as stated by the respondent (husband), has to be seen in the light of the fact that the respondent was in an open adulterous relationship with a woman”.
“Now, where a respondent was involved in an extra marital affair, asking for a share in his property just to secure the future of her neglected child would not be inflicting cruelty upon the father,” it said.
The bench also observed that the husband, in his statement before the trial court, had said, he had visited the house of his lover several times, before getting divorced from his wife, which showed his inclination toward his lover.