Upholding the wife's plea, the apex court said since the decree of judicial separation was in subsistence, the division bench was wrong in granting divorce to the husband.
Notwithstanding the couple's mutual recrimination including trading of charges of cruelty, perverted sexual behaviour and pointing to their living separately for 18 years, the Supreme Court has quashed the divorce decree granted by the Punjab and Haryana high court.
A bench of justice VS Sirpurkar and justice Surinder Singh Nijjar quashed the high court order on the ground that it was illegal as no such direction could be passed since a decree of judicial separation passed by a single judge providing one year time for reconcillation was subsisting.
The dispute involved an army captain Deepak Kumar and his advocate-wife Manisha Tyagi.
The couple married in Delhi on November 17,1991, started living separately from December 30, 1992 after a stormy break-up. A daughter was born to them on June 2, 1993.
The husband filed a suit for divorce in the matrimonial court at Gurgaon accusing his wife of being quarrelsome, rude and ill-mannered.
He termed her "schizophrenic," making his life a living hell, insulting his parents, filing false police cases including a case of attempt to outrage of modesty against his father.
According to the husband, Manisha had also made complaints against him to his superiors and also accused her of erratic sexual behaviour by denying him proper sex by deliberately avoiding coitus stimulation.
The wife on her part accused Deepak Kumar of dowry harassment, strange behaviour in the form of throwing household articles and clothes all around in the room and also mimicking the sound of different animals and sometimes barking like a dog.
She accused him of sodomising and insisting on sex even during her mensuration. The trial court dismissed the husband's plea for divorce on the ground that the charge of cruelty could not be established.
He then moved the Punjab and Harayan high court and a single judge held both the parties responsible for the dispute.
However, noting that the marriage has irretrievably broken down, the single judge granted the alternative relief to the husband by passing a decree for judicial separation under Section 10 of the Hindu Marriage Act.
Unlike a divorce, in a decree of judicial separation, the squabbling couple are granted a one-year time for reconcillation. If they fail to reconcile, then the aggrieved party can file a suit for divorce as provided under the Hindu Marriages Act.
The wife moved a division bench of the high court stating the decree of judicial separation was erroneous as there was no cruelty on her part as held by the trial court that could warrant such a decree, that could eventually culminate into a decree of divorce.
Under Section 13 of the Hindu Marriages Act, a divorce can be granted if either party is able to establish the charge of cruelty.
A division bench of the high court however, took the view that the act of the wife accusing the husband of barking like a dog, sodomising her and filing a case of outraging of modesty against the father-in-law all amounted to cruelty. Hence it granted divorce to the husband.
Aggrieved Manisha filed an appeal in the apex court contending that the decree of divorce was erroneous as it was she who had filed an appeal against the single judge's order, but the husband had been granted the relief in the form of divorce.
Upholding the wife's plea, the apex court said since the decree of judicial separation was in subsistence, the division bench was wrong in granting divorce to the husband.
"In our opinion there was no compelling necessity, independently placed before the Division Bench to justify reversal, of the decree of judicial separation.
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