Guwahati: The Madras High Court has reversed a family court order that had rejected a man’s divorce petition after finding that his move to Mumbai for work without his wife amounted to a failure of marital duty.

The case was heard by a Division Bench of Justices GR Swaminathan and MD Sumathi. The High Court said work-related circumstances can make it impractical for a married couple to live together, and a spouse cannot always be required to move with the other.

The Bench gave the example of a soldier, saying it may not be possible to establish a family home inside army barracks. It also said a wife may have a job of her own and cannot be expected to follow her husband wherever he goes like the pug in the Vodafone advertisement.

The family court had dismissed the husband’s divorce plea after he alleged that his wife was involved in an adulterous relationship. It relied on Section 23(1)(a) of the Hindu Marriage Act and held that the husband was trying to take advantage of his own wrong by leaving Sivagangai for employment in Mumbai without his wife.

The lower court had also reasoned that overcoming sexual desire was “highly impracticable” and that a husband was duty-bound to take his wife wherever he went.

The High Court disagreed with that approach and said the conduct covered under Section 23(1)(a) must involve serious misconduct or behaviour contrary to right and justice.

The court also found that the husband’s adultery allegation could not be accepted. It pointed out that the person accused of having a relationship with the wife had not been made a party to the case.

Referring to an earlier Madras High Court ruling, the Bench said a person alleged to be a paramour has to be impleaded when adultery is raised as a ground. Failure to do so, it said, can defeat such a claim.

The court further took note of the fact that the wife had made no attempt to return to the marital relationship, including through a formal letter or notice.

The couple had married in September 1992 and had four children. They had been living apart for 16 years when the appeal came before the High Court, and the husband was 67 at the time.

The judges also tried to settle the dispute by speaking with both spouses, but the attempt did not lead to an agreement.

The Bench concluded that the marriage had broken down beyond repair and said there was “so much of bad blood” between the parties. It accordingly dissolved the marriage.

The High Court also referred to the Supreme Court’s ruling in Rakesh Raman v. Kavitha, saying prolonged separation, absence of cohabitation and the loss of meaningful marital ties may amount to cruelty under Section 13(1)(ia) of the Hindu Marriage Act.

While discussing the husband’s decision to live separately, the Bench said:

“It may not always be feasible to take the wife along. Suppose the husband is a soldier, it is not possible to set up a marital home in the army barracks. The wife could be gainfully employed. She cannot be expected to conduct herself like the pug in the unforgettable vodafone ad,”

The court also observed:

“Radical feminists may applaud the revolutionary approach of the trial court. We say with regret that we cannot give our imprimatur.”

On the husband’s relocation for employment, the Bench said spouses may not always be able to remain together because of their professional circumstances.

The court ordered the husband to pay Rs 7 lakh to the wife as alimony. The divorce decree will become effective only after the amount is deposited with the family court.

Advocate S Srinivasa Raghavan appeared for the husband, while Advocate C Suresh Kannan represented the wife.