Having children from a marriage cannot operate as a perpetual bar against a spouse seeking divorce from the marriage that has effectively ceased to function, the Madras High Court recent held.

A Bench of Justices GR Swaminathan and MD Sumathi made the observation while granting divorce to a woman who had alleged alcoholism, physical and mental cruelty, financial neglect and desertion by her husband.

“The mere fact that the parties have children cannot operate as a perpetual bar against a spouse seeking dissolution of a marriage which has ceased to function in substance,” the Court said.

It added that while the existence of children is undoubtedly relevant, it cannot compel a spouse to continue indefinitely in an oppressive matrimonial relationship when statutory grounds for divorce have been established.

The couple had married in May 2008 according to Christian rites and had two children.

The woman alleged that her husband was addicted to alcohol, frequently came home drunk, abused and assaulted her and failed to contribute towards household expenses. She said she was forced to undertake tailoring work and borrow money to support the family and her children's education.

She also alleged that her husband had pledged her jewellery and left her to shoulder the family's financial liabilities.

However, the family court at Sivagangai rejected her divorce petition. Among other things, it noted that she had not produced medical certificates or lodged police complaints regarding the alleged physical assaults. It also found that specific dates of the alleged assaults and dowry demands had not been established

The High Court found this approach to be “hyper-technical”.

“Matrimonial cruelty is not confined only to acts which result in visible bodily injuries or which are reported to the police,” the Court observed.

It said a consistent course of conduct, when viewed cumulatively, could amount to mental cruelty and make continuation of matrimonial life impossible. The absence of a wound certificate or contemporaneous police complaint by itself could not establish that physical or mental cruelty had not occurred.

The Court also took note of the fact that the husband had remained absent before both the family court and the High Court despite service of notice. He had neither entered the witness box nor produced evidence to show that he had maintained his wife and children or attempted to resume cohabitation.

His continued silence in the face of specific allegations assumed considerable significance, the Court said.

The Court further clarified that a wife's and children's independent right to claim maintenance does not erase cruelty, neglect or desertion for the purpose of matrimonial proceedings.

It concluded that the husband's conduct constituted a continuing course of neglect, indifference, financial irresponsibility, alcoholism and failure to discharge his responsibilities as a husband and father.

“Physical violence is not an indispensable requirement for establishing mental cruelty,” the Court added.

The High Court consequently set aside the family court's order and dissolved the marriage on grounds of cruelty and desertion.

Advocate M Saravanan appeared for the appellant-wife