Mere annoyance or irritation or normal wear or tear differences does not constitute cruelty: Bombay HC

In a significant judgment Bombay High Court held that, “the cruelty should be such in which it is not reasonably accepted to live together. The appellant/husband has not proved the desertion by the respondent/wife. Merely because the respondent/wife staying separately an inference of desertion cannot be drawn.”

Background:

Alleging cruelty and desertion against the wife, the appellant/husband approached to this Court by filing an appeal against the judgment and decree of restitution of conjugal rights in A-Petition No.15/2018 (Old Hindu Marriage Petition No.81/2013) and dismissal of A-Petition. No.4/2018 (Old Hindu Marriage Petition No.52/2013) filed for dissolution of marriage.

Facts of the Case:

The marriage of the appellant/husband and the respondent/wife was solemnized on 08/08/2001 as per Hindu rites and
religion at mouje Anjangaon-Surji, Taluka Anjangaon-Surji, District Amravati. After marriage, the respondent/wife resumed cohabitation at the house of the appellant/husband at Buldana. The appellant/husband was serving as an Assistant Teacher at M.E.S. High School, Mehkar at the relevant time and was shuttling between Mehkar and Buldana. The respondent/wife is also qualified and completed her post-graduation and was desiring to do a teacher’s job.

The husband contended that wife was harassing him and living separately. It is the contention of the appellant/husband that as the respondent/wife had not returned back and treated him with cruelty and deserted him without sufficient reason, therefore, he constrained to file Hindu Marriage Petition No.52/2013.

It is the contention of the appellant/husband that the respondent/wife treated him with cruelty and without sufficient reason withdrawn herself from the company of the appellant/husband, therefore, he filed a petition for dissolution of
marriage on the ground of cruelty and desertion.

In response to the notice, the respondent/wife appeared and opposed the appeal. She denied all averments and allegations.

Her contention is that as she was constrained to leave the matrimonial house she preferred the petition for restitution of conjugal rights in the Court of Civil Judge, Senior Division, Achalpur which was subsequently transferred to the Family Court, Buldana bearing No.15/2018. The appellant/husband also appeared in the said Hindu Marriage Petition and resisted the petition by filing written statement.

Points for consideration

i) Whether the petition for dissolution of marriage is liable to be allowed on the ground of cruelty as pleaded in the petition?

ii) Whether the appellant/husband proves that the respondent/wife intentionally abandoned him without a
reasonable cause?
iii) Whether the judgment and decree of the restitution of conjugal rights passed by the trial Court and dismissal of the
divorce petition calls for any interference?

Citing the various precedents the Hon’ble Court observed that, “desertion means the intentional permanent forsaking and abandonment of one spouse by the other without the consent of the other and without reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of the deserting spouse to bring cohabitation to permanent end. In other words, there should be animus deserendi on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to deserting spouse to leave matrimonial house”

The Court held that, “The marriage between the parties cannot be dissolved on the averments made by one of the parties that the marriage between them has broken down. The irretrievable breakdown of the marriage is not a ground by itself to dissolve it.”

No ground is made out to interfere with the findings of the Family Court.

Case: Pundlik Martandrao Yevatkar (Petitioner) vs. Sau. Ujwala @ Shubhangi Pundlik Yevatkar (Respondent)

FAMILY COURT APPEAL NO.75 OF 2018

CORAM : A.S. CHANDURKAR AND
URMILA JOSHI-PHALKE, JJ.
DATED : OCTOBER 04, 2022