The Goa bench of the Bombay High Court recently ruled that a husband insisting his wife live with him in a house he shares with his paramour is a valid reason for the wife to stay separately. This "separation" cannot be regarded as the wife's "free consent" to justify a divorce under the Law of Divorce (Divorce Act, 1910).
The HC was hearing an appeal filed by the husband challenging the order of the lower court dismissing his divorce plea on the grounds of “ill-treatment, complete abandonment of the conjugal domicile for at least three years and de facto separation, freely consented, for ten consecutive years”.
The two married in November 1992 and have a son. The husband claimed that the wife abandoned him in May 1993, within a year of their marriage.
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“The evidence on record demonstrates that the husband was living with 'A' in the new matrimonial home. The husband wanted the respondent-wife to reside in this matrimonial home. I find force in the submission of the respondent wife that this was a good enough reason for her to stay separately. Such de facto separation can never be regarded as 'freely consented' to afford a ground to the husband for divorce under Article 4(8) of the Law of Divorce,’ Justice MS Karnik observed.
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Dismissing the husband’s appeal, the HC concluded that the wife did not consent to the separation, and thus, the husband could not use it as a ground for divorce.
