Gujarat HC: Extramarital Affairs is one of the Highest Reasons for Divorce

anuary 18, 2018

Case name: Bhartiben Bipinbhai Tamboli v. State of Gujarat & Ors.

Date of Judgment: January 08, 2018

In this case, two intrinsic issues were deliberated elaborately by the Gujarat High Court. One relating to proceedings under the Domestic Violence Act 2005 and the other related to incidence of extra marital affairs eventually leading to divorce.

Also read Who can claim relief under the Protection of Women from Domestic Violence Act 2005?

Brief Facts: In the case, the husband and wife were married since 1993 and had two children out of their wedlock. As per the facts, the marital discord between husband and wife commenced pursuant to alleged growing intimacy between husband and tuition teacher of the children.

In the case, wife initiated criminal proceedings against the husband as well as the mother­in­law under the Domestic Violence Act 2005, whereby the wife submitted that the retention of stridhan by husband or his family is a form of a domestic violence i.e. “economic abuse” and amounts to a “continuing offence”. It was further submitted that when the aggrieved person is a wife, she can file an application against any relatives of the husband and in such circumstances,the proceedings initiated against the mother­in­law were maintainable.

The mother-in-law’s counsel in the case argued that the proceedings against the mother-in-­law were not maintainable as any right of the wife during the subsistence of her marriage and during the lifetime of her husband is against the husband and she cannot claim any relief against the mother- in-law inasmuch as the obligation to maintain the wife is on the husband. It was also contended that the wife could not claim compensation from her mother in- law, as such right is barred by the law of limitation as there was no domestic relationship or shared household between the wife and mother-in-law after 2006.

Hence, the issue before the Court was whether the proceedings initiated by the wife under the Domestic Violence Act 2005 against the husband and the mother-in-law should be quashed?

Bench’s Observations

– While deciding on this issue the Court at length dealt with the object and purport of the Domestic Violence Act 2005 to hold that the main object of the Act is protection of women from violence inflicted by a man and/or a woman. It is a progressive Act, who’s sole intention is to protect the women irrespective of the relationship she shares with the accused. The definition of an aggrieved person under the Act is so wide that it takes within its purview even women who are living with their Partners in a live in relationship.

In context of proceedings under the Domestic Violence Act 2005 against mother-in-law the Court relied on plethora of cases and opined that in the Domestic Violence Act 2005 the definition of ‘Respondent’ was read with the Proviso to give a logical meaning to the definition of Respondent by the Supreme Court in the case of Sandhya Wankhede Vs. Manoj Bhimrao Wnakhede[1], wherein the Court has held that the proviso to Section 2(q) does not exclude female relatives of the husband or make partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act. Therefore, complaints are not just maintainable against the adult male person, but also, the female relatives of such adult male.

Retention of Stridhan by the husband and Mother-in-law illegally- In this context the Court made reference to precedents and the recent case of Krishna Bhatacharjee Vs. Sarathi Choudhury and Another[2] wherein the Supreme Court elaborately dealt with the concept of “Stridhan” to hold as under:

“that the position of stridhan of a Hindu married woman’s property during coverture is absolutely clear and unambiguous; she is the absolute owner of such property and can deal with it in any manner she likes — she may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband. Ordinarily, the husband has no right or interest in it with the sole exception that in times of extreme distress, as in famine, illness or the like, the husband can utilise it but he is morally bound to restore it or its value when he is able to do so. It may be further noted that this right is purely personal to the husband and the property so received by him in marriage cannot be proceeded against even in execution of a decree for debt.”

Does entrustment of Stridhan Entitle husband to use the same? The Supreme Court has answered this in the negative to hold that that a pure and simple entrustment of stridhan without creating any rights in the husband excepting putting the articles in his possession does not entitle him to use the same to the detriment of his wife without her consent. The husband has no justification for not returning the said articles as and when demanded by the wife nor can he burden her with losses of business by using the said property which was never intended by her while entrusting possession of stridhan[3].

Whether retention of stridhan by the husband or any other family members is a continuing offence or not?

In this context, the Court opined that a wife can file a suit for realization of the stridhan, however the same does not debar her to lodge a criminal complaint for criminal breach of trust.

In the 2005 Act, the definition of “aggrieved person” clearly postulates about the status of any woman who has been subjected to domestic violence as defined under Section 3 of the said Act. “Economic abuse” as it has been defined in Section 3(iv) of the said Act has a large canvass.

Hence, as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act.

Continuing offence- The concept of “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians.

Increasing instances of Extra-marital affairs

In this case, in view of the facts and circumstances, the Gujrat High Court took a specific note of augmented instances of extra-marital affairs. While expressing a disconcert on this situation the Court made the following observations:

For any wife, it would be the end of the life, the day, she comes to know that her husband has an extramarital affair.

Even if the husband showers all the riches of the world upon the wife while maintaining illicit relationship with another lady, the same would hardly be of any consequence.

The extramarital affairs are increasing in number. This is one of the highest reasons for divorce. The extramarital affair has devastating results.

The effects of extramarital affairs are devastating and victims may take long to get over the misery.

Infidelity can occur even in the strongest of the marital relationship. An extramarital challenges the sanctity and strength of a relationship, causing turmoil in personal and social world of the people.

Extramarital affair seems like a very common phenomenon these days. However, even when an affair seems to be working, it will eventually cause severe damage.

The worst thing with the extramarital affairs is that they usually ruin the life of a person who did nothing wrong, like the children in the present case.

The Court also made reference to interview of Dr. Scott Haltzman, a longtime therapist and expert on infidelity and marriage, wherein it was stated that- Social media and e- communication has dramatically increased infidelity, not only because of the increased risk of meeting someone for the first time through the Web, or reconnecting with someone from the past through social networking sites, but also as a means, to perpetuate a potential affair.