The woman had moved the high court challenging the divorce granted by the trial court in May 2015.
Having an affair during subsistence of marriage by either of the spouses amounts to cruelty, the Delhi High Court has observed while setting aside a trial court's judgement granting divorce to a man who was in an "open adulterous relationship".
A bench of Justices Pradeep Nandrajog and Yogesh Khanna allowed the appeal filed by a woman, who had challenged the divorce granted by a trial court on her husband's plea, saying the man was involved in an "extra marital affair".
It observed that the man had admitted that he had married the woman, with whom he was in a relationship, after he was granted divorce by a trial court in May last year and when the marriage was subsisting, he had fathered a child with his paramour in February 2008.
"The totality of evidence rather establishes the mental cruelty upon the appellant (wife) rather than upon the respondent (husband) herein who is now stated to be blissfully married with a woman with whom he had a son during subsistence of marriage with the appellant (wife) herein," the bench said in its judgement.
About the man's allegation that he was treated "cruelly by his wife and she had demanded share in his ancestral property", it said, "The conduct of the appellant (wife), even if correct as stated by the respondent (husband), has to be seen in the light of the fact that the respondent was in an open adulterous relationship with a woman".
The bench also observed that the husband, in his statement before the trial court, had said he had visited the house of the woman several times before separating with his wife which showed his inclination toward his paramour.
"This gives credence that she (wife) never denied sex to the respondent (husband) and he did not come to her because of him being in relationship with a woman. Having an affair during the subsistence of marriage by either of the spouses amounts to cruelty upon the other," the high court said.
The woman had moved the high court challenging the divorce granted by the trial court in May 2015 on a petition filed by her husband. She had claimed that during the subsistence of marriage, her husband had an extra-marital relationship with another woman, who was a divorcee and was working in his office.
The couple had tied knots in July 1993 and the husband had moved the trial court seeking divorce in July 2004. The wife had denied the allegations levelled against her and had claimed that she was treated cruelly by her husband and in-laws.
The trial court had granted divorce to the man on various grounds, including the woman's demand for share in ancestral house and denial of sex to her husband.
About the allegations levelled by the man against against his wife, the high court said, "The appellant (wife) would naturally be feeling insecure for herself and her daughter and thus even if she made a demand for an immovable property in her name, it would not be an act of cruelty but the helpless cry by a wife, who was cheated, to ensure that she and her daughter had a roof above their head".
"Now, where a respondent was involved in an extra marital affair, asking for a share in his property just to secure the future of her neglected child would not be inflicting cruelty upon the father," it said.