The Calcutta High Court recently observed that if a wife decides to sell the property standing in her name without seeking the husband’s approval, it will not amount to cruelty [MS v. JNS].
A division bench of Justice Harish Tandon and Justice Prasenjit Biswas was hearing a woman’s appeal against the trial court’s decision to grant divorce in favour of her husband on the ground of cruelty and desertion.
“It appears that both are educated and if the wife decided to sell the property standing in her name without seeking approval or permission from the husband-respondent, it shall not constitute the cruelty,” the Court said.
The trial court in 2014 had held that there was a presumption that consideration for the purchased land was paid by the husband as the wife admittedly did not have any income.
The High Court said even if it is taken as truth, the property stood in the wife’s name.
“The wife cannot be regarded as a property of the husband nor she is expected to seek any permission from the husband to do any act or a thing which she decided to do in her life,” it added.
The Court said that if the husband can sell the property without the wife’s approval, then the property standing in the name of the wife can be sold by her without his permission.
“We have to eradicate the mindset of gender inequality and therefore the finding of the judge in the trial court is unacceptable and untenable,” it said
The Court also observed that dominance of men over women is not acceptable to the present society “nor the framers of our Constitution ever inculcated such sense.”
On the trial court’s finding that the withdrawal of money by the wife from the joint bank account held with the father-in- law after his death constitutes cruelty, the High Court said it was far-fetched and untenable.
In fact, the High Court said that the trial court ought to have considered it from a different angle because the father-in-law reposing confidence in daughter-in-law by opening joint bank account with her destroys the allegations by the husband that the wife was indifferent and quarrelsome within 15 days of marriage.
It also rejected the trial court’s finding that the couple were unhappy since the inception of marriage.
“Within two years of marriage the parties were blessed with the daughter and, therefore, it cannot be said that since the inception of the marriage they were not happy,” it stated.
While rejecting the allegation of desertion against the wife, the Court noted that parties have been living in the same house but in separate rooms.
Taking into account the wife’s assertion that she wanted to restore the relationship, the Court said even though the couple have not established the co-habitation since 2003, the evidence reveals that the husband did not intend to cohabit with the wife.
“We find that the judgement and decree passed by the Trial Court cannot be sustained,” the Court said while setting aside the divorce decree in the case dating back to 2007.
Advocate Chandreyi Alam represented the appellant.
Advocate Saurav Chaudhuri represented the defendant.
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