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Indulging in an Affair during subsistence of a Marriage by any one of the Partners is Cruelty: High Court

Seeking security for the future of the neglected child would not be considered as cruelty inflicted upon the spouse indulging in the affair

New Delhi, Nov 25, 2016: Indulging in an affair during the subsistence of a marriage by any one of the partners is cruelty, said the Delhi High Court while annulling a divorce granted to a man divorce who was in an open relationship.

A bench including Justices Preadeep Nandrajog and Yogesh Khanna permitted the appeal by a woman challenging the divorce grant by a trial court on the basis of her husband’s plea and said that he was involved in an extramarital affair.

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It was revealed that the man, after the trial court’s verdict in May last year, has already tied a knot with the woman he was in a relationship with. He also fathered a child in February 2008 with his mistress, mentioned PTI.

“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 to a woman with whom he had a son during subsistence of marriage with the appellant (wife) herein,” the bench said in its verdict.

According to the PTI report, the man’s allegation was that he was treated cruelly by his wife and she demanded property belonging to ancestors. To the man’s allegations, the bench said that the wife’s behaviour needs to be considered keeping in mind the circumstances as her husband was in an open adulterous relationship.

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The bench said that the fact that the husband visited the house of his paramour multiple times before splitting up with his wife shows his inclination towards the mistress.

The panel said, “this gives credence that she (wife) never denied sex to the respondent (husband) and he did not come to her because of him being in the relationship with a woman. Having an affair during the subsistence of marriage by either of the spouses amounts to cruelty upon the other.”

The woman approached the high court to challenge the divorce granted in May 2015 by her husband’s petition who was involved in an extramarital affair with a divorced woman working in his office during the subsistence of their marriage, mentioned PTI report.

The couple was married in July 1993 and the husband filed for divorce in July 2004. In contrast to the allegations targeted at her, she claimed that her in-laws and her husband were the ones treating her cruelly and it as not the other way around.

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The trial court granted the petition for divorce by the husband on grounds of the wife demanding ancestral property and denying sex to her husband.

The High Court said that, “The appellant (wife) would naturally be feeling insecure for herself and her daughter and thus even if she made a demand for an immovable property in her name, it would not be an act of cruelty but the helpless cry by a wife, who was cheated, to ensure that she and her daughter had a roof above their head”.

It further mentioned that in a case where the accused or respondent was indulging in an extramarital affair, seeking security for the future of the neglected child would not be considered as cruelty inflicted upon the husband or father.

-prepared by Shivam Thaker of NewsGram. Twitter: @Shivam_Thaker

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