A Husband Who Walks Out Cannot Cry ‘Desertion’—Divorce Denied to Man Who Abandoned Wife, Alleged Her Cruelty, But Lived With Another Woman: Delhi High Court

“Section 23(1)(a) of HMA is Not a Dead Letter—A Spouse Who Is the Author of the Marital Rift Cannot Seek Divorce on That Very Ground” - In a sweeping and nuanced judgment a Division Bench of the Delhi High Court comprising Justice Anil Kshetrapal and Justice Harish Vaidyanathan Shankar upheld the Family Court’s refusal to grant divorce to a man who alleged cruelty and desertion by his wife. The Court observed that "the husband cannot be allowed to take advantage of his own wrong", as he had abandoned his wife, later alleged false accusations, and meanwhile, maintained an extramarital association with another woman.

“It is the petitioner-husband who withdrew himself from the company of the respondent-wife... and thereafter has not attempted to resume cohabitation.”

The Court also dismissed the husband’s appeal seeking to claim exclusive rights over the ₹1.09 crore sale proceeds from a jointly owned property, ruling that title prevails over financial contribution, and any contrary claim is barred by the Prohibition of Benami Property Transactions Act, 1988.

The decision settles four cross-appeals involving divorce, maintenance, and property division, emerging from a long-running matrimonial battle that began in 2006, when the couple separated after seven years of marriage.

“Alleging Cruelty After Moving Out and Filing Divorce—A Clear Case of Taking Advantage of One’s Own Wrong”

Divorce Denied Under Section 13 HMA, Read with Section 23The Husband, Sanjeev Gera, had approached the Family Court seeking divorce on grounds of cruelty and desertion under Section 13(1)(a) and (b) of the Hindu Marriage Act, 1955 (HMA). The Court found that not only had he failed to prove cruelty, but he had himself abandoned the matrimonial home, thus negating his plea of desertion by the wife.

The High Court upheld the Family Court’s finding that: “Once the petition for divorce was filed, it could not reasonably have been expected of the respondent to continue residing with the appellant.”

The Court found the husband’s conduct questionable, as he had:

• Left the wife alone in a rented accommodation in Mumbai on 14.01.2006,

• Moved into a hotel,

• Filed for divorce barely a month later, and

• Claimed she deserted him, despite her returning to his mother’s house in Noida.

The Court concluded: “It is the husband who deserted the matrimonial home. His wife’s return to Noida, into his family’s house, shows no animus deserendi.”

“Cruelty Not Proved—Allegations Against Wife Not Grave or Sustained”

The husband cited instances like his wife allegedly not taking care of his parents, or filing complaints under Section 498A IPC to claim cruelty. But the Court noted that many of these acts occurred after the divorce petition, and even allegations of extramarital affairs made by the wife were not unfounded.

Significantly, the Court remarked: “The husband has equally contributed to the widening of the marital rift. Although the respondent may have committed her own share of alleged wrongdoing, it does not rise to the level of cruelty in law.”

Citing Dastane v. Dastane, the Court held that forgiveness and continued association after alleged cruel acts amount to condonation, making them non-actionable in divorce proceedings.

“Even if certain incidents of cruelty may have occurred, the husband admitted that the parties continued to meet and go out together after filing the petition, which indicates condonation.”

“Irretrievable Breakdown of Marriage Not a Ground Available to High Courts”

While the Court acknowledged that the marriage had broken down irretrievably, it also emphasized its limited jurisdiction:

“This Court cannot dissolve the marriage solely on the ground of irretrievable breakdown. Such power is exclusively vested in the Supreme Court under Article 142 of the Constitution.”

This reiteration follows the settled principle laid down in Shilpa Sailesh v. Varun Sreenivasan, where the Supreme Court had clarified that only it could exercise such extraordinary power.

“Joint Title Means Joint Rights—Husband Cannot Claim Full Property Proceeds Due to Benami Law”

Wife Entitled to 50% of ₹1.09 Crore from Sale of Jointly Owned Flat

The husband had claimed that since he alone paid the entire EMI and purchase consideration for the Mumbai flat, he was entitled to the entire sale proceeds.

The High Court rejected this argument, stating: “A jointly acquired property, purchased in the name of both spouses, is by its very nature a joint asset and cannot fall within the ambit of stridhan.”

Citing Section 4 of the Prohibition of Benami Property Transactions Act, 1988, the Court ruled: “No person can claim real ownership against the titleholder in a benami arrangement. Once the property stands in joint names, the presumption of joint ownership applies, regardless of who paid.”

Accordingly, the Court ordered: “The Registrar General is directed to release the money kept in fixed deposit with UCO Bank to the wife within two months.”

“Maintenance Based on Status and Earning Capacity—Rs. 2 Lakh/Month Maintenance Upheld”

In two cross-appeals challenging the interim maintenance order under Section 24 HMA, the wife had sought enhancement while the husband had sought reduction.

The Court, noting the husband's high income and the wife’s dependence, held that the Family Court's award of ₹2,00,000 per month was reasonable.

“Once the Court reaches the conclusion that a spouse is unable to maintain herself, the determination of quantum rests within its discretion.”

It observed that Section 24 HMA was meant to ensure parity in standard of living during litigation, and that the wife had already been receiving maintenance under Section 125 CrPC, which was to continue.

 “Law Does Not Favour the Spouse Who Creates the Rift and Then Seeks a Clean Exit”

This judgment, while steeped in the emotional nuances of a broken marriage, firmly applies the law to deny relief to a husband who, according to the Court, attempted to manufacture a ground for divorce while simultaneously violating matrimonial norms.

“A party cannot drive the spouse to a corner, then cry desertion, and walk away from the marriage on the claim that it has broken down. That would be rewarding the wrongdoer.”

Final Directions by the Court:

•  Divorce Appeal by Husband: Dismissed. Divorce denied.

•  Wife’s Claim on Property Proceeds: Allowed. Wife to receive ₹54.5 lakhs.

• Cross-Appeals on Maintenance: ₹2,00,000/month maintenance to continue during pendency.

Date of Decision: 22 September 2025