The desire of the respondent to settle in Canada is actuated by the fact that it was the appellant who had first consciously decided to settle in the foreign country. As such, the wish of the respondent cannot be branded as an act of selfishness or the act on her part cannot be said to be unjustified. It is pertinent to note that it was the appellant’s initiative and desire to immigrate to Canada for better prospects. {Para 38}
39. Thus, in no way, it could be said to be cruelty meted out to the appellant by the deserting spouse. Moreover, except mere words of the appellant, no corroboration is forthcoming to buttress the fact of an attempt at conciliation being made by the family members of the respective families. The appellant could have produced some witnesses/ family members in support of his contention.
BOMBAY HIGH COURT
FCA-162-2019
CORAM : UJJAL BHUYAN &
PRITHVIRAJ K. CHAVAN, JJ
PRONOUNCED ON : 24th June, 2021.
[Per Prithviraj K. Chavan, J.]
1. Feeling aggrieved with and dissatisfied by dismissal of a Petition
bearing No. A-2827 of 2016 under section 13 (1) (ia) and 13 (1) (ib)
of the Hindu Marriage Act, 1955 (“Hindu Marriage Act” for
convenience) by Family Court No.6, Bandra, Mumbai, the appellanthusband
has preferred this appeal amongst following facts and grounds.
2. The appellant is Hindu whereas the respondent is Jain by
religion. They were in deep love. Marriage between the appellant and
the respondent was solemnized on 5th January, 2004 at Aum Shreyas
Apartments Arya Samaj, Ghatkopar (West), Mumbai 400 086 as per the
rituals of Hindu religion. Subsequently, the marriage was registered
with Registrar of Marriages at Bandra, Mumbai on 6th January, 2004.
After having spent eight years in courtship, couple got married.
3. The appellant and the respondent are overseas citizens of
Canada. They are Indian citizens by birth, however, they acquired
citizenship of Canada and thus, have dual citizenship of India and
Canada. The appellant presently resides at Andheri (East), Mumbai.
The couple is blessed with a male child namely Mukund alias Manan
aged about six years who was born in Canada having Canadian
citizenship by birth and overseas citizenship of India. Mukund is
residing with respondent-mother in Canada.
4. Before migrating to Canada, the appellant had worked in Saudi
Arabia in the year 1999 to earn a better lifestyle for himself and the
respondent. The respondent was to join the appellant at Saudi Arabia,
however, due to lot of restrictions on women and unsafe working
environment, the appellant persuaded the respondent not to come to
Saudi Arabia.
5. The appellant thereafter immigrated to Canada and had taken a
job making it feasible to bring the respondent over there. The appellant
had shifted to Canada in October, 2003. He visited India in the year
2004 to meet the respondent. The appellant had not intimated his
family members about his proposal of marriage. However, family of the
respondent was initially reluctant to the said marriage. The respondent
was persistent in her stand to marry the appellant and, therefore, had
convinced her family members. Her family members were convinced
that the appellant was going to be settled in Canada and would make a
decent living. Thus, after their marriage, the couple moved to Canada
wherein the appellant sponsored her spouse visa.
6. The couple led a very happy and normal matrimonial life at
Canada. They used to visit India periodically to meet their family
members. As already stated hereinabove, after having acquired
Canadian citizenship as well as status of overseas citizenship of India,
(OCI) the respondent had taken up a job over there and was financially
independent.
7. The couple wanted to have their own home in Canada and hence
started saving money. However, sometime in the month of November,
2009, the appellant had met with a car accident in Canada. The
respondent took care and nursed the appellant for restoring his good
health. Meanwhile, the couple was blessed with their first child
Mukund.
8. Thus, the couple was spending a very happy and peaceful
married life until February, 2011. However, the circumstances thereafter
changed. The appellant started experiencing medical problems namely
constant back and shoulder pain as well as skin related problems,
especially during summer due to rag weed allergy resulting into
sleepless nights and miserable days. To add to it, there was recession in
2010 which hit Canada due to which the appellant lost his job resulting
into financial burden upon the respondent. It is the contention of the
appellant that they decided to return to India, permanently, due to such
a situation. Mother of the appellant was also not keeping well and,
therefore, they returned to India with Mukund on 29th January, 2011.
9. The respondent had stayed with the appellant at her matrimonial
house till 19th February, 2011. On 20th February, 2011, the appellant
had dropped the respondent and Mukund at the parental house of the
respondent on the request of the respondent herself. The respondent
thereafter visited Kutch without intimating the appellant about her
whereabouts over there. After her return from Kutch, when the
appellant asked the respondent to resume co-habitation, she refused. It
is contended that the respondent was insisting for a separate
accommodation. Despite attempts by the appellant to convince the
respondent as regards requirement of his family, the respondent did not
pay any heed. However, as per the advise of his mother, the appellant
informed the respondent that he would arrange for separate
accommodation within two days. The respondent was, however,
interested in returning back to Canada.
10. On 27th March, 2011, the respondent had visited the appellant’s
house along with her father, brother and massi (mother’s sister). They
demanded her passport along with documents and jewellery. When the
appellant asked the respondent the reason for such conduct, he was
threatened that they would call the police and, therefore, the appellant
had returned her passport, documents etc. An unsuccessful attempt
was made to resolve the dispute amicably between couple on 3rd April,
2011. However, the respondent was adamant in her stand to settle in
Canada for a better future. The appellant, however, expressed his
unwillingness to shift to Canada owing to his health issues and other
related reasons. The appellant in order to show his bona fides as well
as his love and affection towards the respondent had paid her CAN $
25,000 plus Rs.1,25,000/- in Indian currency to facilitate her departure
to Canada. The respondent left for Canada with their son.
11. The appellant started looking for an accommodation and a good
job with the hope that the respondent would return after a short span.
However, the respondent did not return nor made any attempt to
contact the appellant.
12. Sometime in June, 2011, respondent’s massi had called the
appellant and demanded money on behalf of the respondent. The
appellant refused to part with money as it was neither demanded by his
in-laws nor by the respondent. According to the appellant, said massi of
the respondent conveyed that the respondent did not desire to speak
and did not wish to keep any relations with him.
13. Despite making various attempts to contact the respondent either
by e-mail or by other modes, the appellant could not establish any
contact. After a couple of days, the respondent responded by
demanding money from the joint savings by accusing the appellant that
he had cheated and abused her financially.
14. It is further contended that the couple had arrived at a settlement
by which the appellant gave in all the money that was agreed between
them. The appellant had, at all times, through emails inquired with the
respondent about her stand on their relationship and marriage. The
respondent, however, conveniently ignored queries made by the
appellant. Only once she had informed through an email that she will
never settle back in India. The appellant too conveyed his inability to
shift to Canada due to his health issues.
15. As such, despite all the efforts, there was no amicable settlement
of their dispute and, therefore, the appellant was constrained to issue a
legal notice dated 7th May, 2012 calling upon the respondent to come
and co-habit with him. It was neither responded to nor complied with.
16. The appellant, therefore, preferred a petition under section 9 of
the Hindu Marriage Act bearing No.958 of 2014 for restitution of
conjugal rights. Despite due service, the respondent did not appear. An
attempt for mediation also failed as there was no response from the
respondent’s side. Since the appellant realized that there would be no
hope of any restitution, he filed the related petition seeking divorce.
17. In the months of July, 2013 and July, 2015, the appellant had
visited Canada to meet the respondent and his son. He was not treated
properly by the respondent and allowed their son to see him only for 20
to 25 minutes. It is contended that the respondent even did not permit
the appellant to introduce himself as father of his son Mukund. The
respondent also did not allow the appellant to have a photograph with
the son. In this background, the appellant had sought a decree of
dissolution of their marriage on the ground of willful desertion by the
respondent.
18. The petition proceeded ex parte as despite due service the
respondent remained absent. Evidence of the appellant, therefore,
remained unchallenged and un-rebutted. After considering the affidavit
of evidence sworn in by the appellant, the learned Judge of the Family
Court dismissed the petition, inter alia, observing that no case had been
made out of the alleged cruelty to the appellant by the respondent wife;
rather they had happily cohabited till the child was born. It was also
observed that they had mutually decided to shift to Canada forever
having better prospects and subsequently the appellant had been to
Canada to meet the child, twice. It was, thus, observed that pleadings
and evidence were quite vague, though ex parte and as such the learned
Family Court Judge dismissed the petition.
19. We have heard the learned counsel for the appellant extensively
and have also perused the pleadings and evidence on affidavit. We
have also meticulously gone through the case laws pressed into service by the learned counsel for the appellant.
20. The learned counsel in his arguments reiterated what has been
pleaded and deposed in the affidavit. While assailing the impugned
judgment and decree, the learned counsel would argue that the uncontroverted
evidence of the appellant is quite sufficient to establish the
fact that the appellant had been treated with mental cruelty by his wife
who had left his company despite an objection from the appellant. He
would argue that the appellant is entitled for a decree of divorce as the
respondent had deliberately remained absent despite due service. The
learned counsel would further emphasize that the conduct of the
respondent in not responding to any of the appellant’s emails, notice
and not making any effort to resume co-habitation with him itself
amounts to cruelty as contemplated in section 13 (1) (ia) of the Hindu
Marriage Act.
21. A short question arises as to whether the appellant has been, in
fact, subjected to cruelty by the respondent-wife to such an extent as to entitle him to a decree of divorce, more particularly in view of the
admitted fact that the couple had themselves decided to shift to Canada after their marriage for better prospects and admittedly acquired overseas citizenship of Canada with their free consent and will?
22. We are of the considered view that pleadings and the evidence
are absolutely insufficient to reverse the impugned judgment and
decree of the Family Court for the reasons to follow.
23. It is an admitted fact that even today the appellant and the
respondent are holding dual citizenship of India and Canada, so also
their son Mukund.
24. The evidence of the appellant indicates that he had met the
respondent in the year 1996 at V.J.T.I College, Mumbai. They were in deep love with each other and wanted to marry.
25. Since the appellant was financially unsound, he left for Saudi
Arabia in the year 1999 to earn a better income for himself and the
respondent. However, he persuaded the respondent not to join him in
that country due to several restrictions upon women and as the working environment was not safe.
26. The evidence indicates that the appellant had, therefore,
immigrated to Canada sometime in the month of October, 2003 and had
taken a job there making it feasible for him to bring the respondent over
there. Though parents of the respondent were initially unwilling to their
marriage but the respondent had been persisting for the marriage and
ultimately convinced her parents on the basis that the appellant was
settled in Canada and made a decent living.
27. The marriage took place on 5th January, 2004 as already stated
hereinabove and then the appellant took the respondent to Canada by
sponsoring her spouse visa. It is pertinent to note that the couple spent
a very happy and normal married life at Canada and used to visit India
periodically to meet their families. Meanwhile, the respondent too had
taken up a job in Canada and was financially independent.
28. The evidence also indicates that in order to fulfill their dream to
have their own house in Canada, both started saving money. However,
in November, 2009, the appellant had met with a car accident in
Canada. The respondent took his care and nursed him till he recovered fully. By that time, the respondent was pregnant and gave birth to Mukund on 21st May, 2010. The appellant had also attended her properly. Thus, the couple was blissfully leading a very happy married life till February, 2011.
29. The evidence further reveals that after the accident of the
appellant in 2009, the appellant started facing constant back and
shoulder pain as well as skin related problems due to dry climate. In
summer season, the appellant would suffer from rag weed allergy due to which he experienced sleepless nights. It is worthwhile to note that there is absolutely no medical evidence or any prescription of the Doctor supporting this fact. In the absence of any evidence to that
effect, it would be quite difficult to believe the bare words of the
appellant.
30. Be that as it may, the appellant further deposed that due to
recession in 2010 which hit Canada, he lost his job and financial burden fell upon the respondent. Since they could not manage the heightened financial burden, they decided to return to India permanently. His mother was also not well during those days.
31. The evidence reveals that they came to Mumbai on 29th January,
2011. The respondent was dropped at her parental house as per her
request. She stayed with her parents for a month or so and made visit
to Kutch. She did not inform about her whereabouts to the appellant.
After her return from Kutch, the respondent did not come to the
appellant’s house in spite of request by him. She conveyed that the
appellant should arrange for a separate accommodation.
32. The appellant alleges that though he informed the respondent
about the tension prevailing at his house and difficulties of the family, the respondent did not pay any heed. The respondent rather conveyed that she desires to return to Canada. The evidence indicates that on 27th March, 2011, the respondent, her father and massi (mother’s sister) visited the appellant and demanded her passport, documents and jewellery. When the appellant had asked her the reason for such behavior, she refused to answer and threatened to call the police. In such circumstances, the appellant had handed over her passport, documents and jewellery.
33. Even this part of the evidence sans corroboration from any other
angle cannot be accepted as a gospel truth, as at least the appellant
could have examined some witness in order to buttress his contention
that as per the respondent’s demand, he had returned her documents,
passport and jewellery.
34. An unsuccessful attempt was made on 3rd April, 2011 to resolve
the dispute by the family members. However, the respondent
maintained that she would settle in Canada. The appellant, however,
stated that due to his ill health he could not go to Canada. On
respondent’s demand and to show his bona fide as well his love and to give her confidence that he is not cheating her for money, it is deposed that he gave CAN $ 25,000 and Rs.1,25,000/- to the respondent. The respondent had taken the same and left for Canada with the son.
35. Here also there is no corroboration to his evidence which is very
much required obviously in view of the fact that the entire evidence of
the appellant remained un-controverted and unchallenged as the
petition had not been contested. It being a matrimonial dispute, it has
to be dealt with very cautiously.
36. It seems that the main reason for the appellant not to accompany
the respondent to Canada was the health issue. However, in the absence of any believable and acceptable evidence as regards the alleged ailment in the form of any medical certificate, it becomes difficult to accept the same. It is, therefore, quite clear from this part of the evidence that except the reason of the alleged ill health of the appellant, there is no other reason. The relations between the couple were otherwise quite normal, in the sense, the appellant had supported the respondent financially to go to Canada and it was also the wish of the respondent that the appellant should accompany her.
37. It is pertinent to note that the respondent has been working as a
Regulatory Affairs Associate at Teva Canada Limited which appears to
be a pharmaceutical company. It would not be out of place to reproduce
the summary of her resume tendered by the appellant himself at Exhibit
F which is as follows;
“Talented and versatile pharmaceutical with
experience in Quality and Regulatory; Sound
understanding of Canadian and US Food and Drug
Regulations; Strong project management skills;
Hands-on with eCTD submissions, validating and
publishing tools;
Experience in Quality systems such as Supplier and
Product Qualification program, Change controls,
specification management, Analytical investigation
support, Compendial reviews (USP, BP, EP) Risk
assessment reviews and Regularly Audits, Health
Canada and FDA.
Skills/Competencies:
.Strong organizational, leadership and
communication skills
.Knowledge of cGMP, FDA and ICH guidelines
.Excellent technical & regulatory writing skills
.Attention to detail
.Project management skills
.process improvement
.Relationship building
Proficient in Adobe Acrobat,LIMS:.
This being the status of the respondent, it would not be justified, in any way, expecting her to return to this country when she is already well settled over there. The appellant still being overseas citizen of Canada could very well rejoin the company of his wife.
38. The desire of the respondent to settle in Canada is actuated by the fact that it was the appellant who had first consciously decided to settle in the foreign country. As such, the wish of the respondent cannot be branded as an act of selfishness or the act on her part cannot be said to be unjustified. It is pertinent to note that it was the appellant’s initiative and desire to immigrate to Canada for better prospects.
39. Thus, in no way, it could be said to be cruelty meted out to the appellant by the deserting spouse. Moreover, except mere words of the appellant, no corroboration is forthcoming to buttress the fact of an attempt at conciliation being made by the family members of the respective families. The appellant could have produced some witnesses/ family members in support of his contention.
40. The appellant’s evidence is quite vague, insufficient and lacking
in material particulars i.e he has not named the so called massi
(mother’s sister of the respondent) who is alleged to have demanded
money from the appellant in the name of the respondent or on behalf of
the respondent. No date or manner and mode of the alleged demand
by massi has been pleaded or deposed to in the affidavit. It appears
that the appellant has attempted to create a ground for seeking a decree
of divorce as he deposed that the said massi had conveyed that the
respondent does not desire to speak to the appellant and does not wish
to keep any relationship.
41. The appellant further states on oath that he tried to reach out to
the respondent on a number of occasions through email as she had not
provided her number or details of contact. However, we do not find any
such evidence forthcoming on record. The learned counsel has not
drawn our attention to any such material on record. It has been
specifically deposed in paragraph 15 of his affidavit by the appellant
that once she had mentioned in an email that she will never settle back
in India. However, no such evidence, much less, documentary evidence
has been produced on record. Adverse inference, therefore, is required
to be drawn against the appellant. It is, therefore, very difficult for us to
place implicit reliance upon the bare words of the appellant, especially
when there is no corroboration.
42. What has been tendered on record is an advocate’s notice dated
7th May, 2012. Be it noted that before filing a petition for divorce, the
appellant had filed a petition under section 9 of the Hindu Marriage Act
for restitution of conjugal rights bearing No.958 of 2014. An attempt
at mediation through video conferencing failed and, therefore, the
related petition was filed as the petition under section 9 was
withdrawn.
43. The appellant has deposed as regards his two visits to Canada,
one in the month of July, 2013 and second in July, 2015.
44. During his first visit in July, 2013, he visited the residence of the
respondent along with his Canadian friend namely Brian on the address
“Apt # 405, 1050 Markham Road, Toronto, ON M1H2Y7”. He was not
received well by his father-in-law i.e respondent’s father. The
respondent was not at home. She was called by her father; however,
the respondent refused to talk to the appellant and even did not permit
him to meet Mukund. It is deposed that the respondent permitted the
appellant to meet Mukund only after an intervention by their common
friend Mr. Brian who convinced her. The appellant could meet his son
Mukund at Brian’s residence, that too, only for 20 to 25 minutes.
45. The evidence reveals that during his second visit in July, 2015, he
could meet Mukund outside a library with his friend Brian. The
respondent objected to the appellant disclosing his relationship with
Mukund and disallowed him to take a photograph. He, therefore, did
not tell Mukund anything about his relationship. What is surprising is
that had it been the intention of the respondent to sever the marital tie,
she would not have allowed the appellant to meet Mukund. This is an
important aspect of the case indicating that neither the respondent
treated the appellant with cruelty nor did she desire to desert him. On
the aspect that the respondent objected to the appellant from
introducing himself as the father of Mukund, it is to be seen that if the
respondent did not wish to introduce the appellant as her son’s father,
she would not have even allowed the appellant to meet Mukund. The
evidence of the appellant on this count is also incredible and does not
inspire confidence.
46. As regards the mental illness, hypertension and other related
ailments as testified by the appellant, no evidence of any Doctor or any
other convincing material was produced and, therefore, it is difficult to accept and rely upon the same.
47. Having considered the entire pleadings, evidence and the
materials on record, it hardly needs to be reiterated that the
matrimonial tie has not reached stage of such deterioration that it is
beyond repairs, especially when Mukund is still a child who could be a
bond between the couple to reunite them once again. We may at this
stage quote the observations made by the Hon’ble Supreme Court in a
judgment of Samar Ghosh Vs. Jaya Ghosh, (2007) 4 Supreme Court
Cases 511 relied upon by the learned counsel for the appellant himself.
While elaborating the ingredients of section 13 (1) (ia) of the Hindu
Marriage Act, the Hon’ble Supreme Court had succinctly carved out
some instances of human behavior relevant in dealing with the cases of
mental cruelty which are illustrative and not exhaustive. That was a
case of irretrievable break down of marriage.
47.1. The appellant and the respondent both were senior I.A.S
officers. Respondent-wife had a female child from her first marriage.
She obtained divorce from her husband who was also an I.A.S. Officer.
Female child was given in the custody of the respondent by the Court.
The appellant-husband and the respondent-wife got married in the year
1984. The respondent thereafter declared her decision unilaterally not
to give birth to a child for two years and that the appellant should keep
himself long from herself as far as possible. The appellant thereafter
suffered a prolonged illness. Further, the respondent left him and went
to other place where there were none to look after her. The appellant
and the respondent lived separately since 27th August, 1990. The
respondent refused to cohabit and also stopped sharing bed with the
appellant. The appellant was not permitted to show his normal affection
to the daughter of the respondent. The appellant’s petition for divorce
on the ground of mental cruelty and desertion at the hands of the
respondent was allowed by the trial court which found six instances
constituting mental cruelty and, therefore, granted decree of divorce to
the appellant-husband. High Court had reversed the decree of the trial
Court; however, the Hon’ble Supreme Court by way of this judgment
found that the matrimonial bond had ruptured beyond repair because
of mental cruelty caused by the respondent. It was thus a clear case of
irretrievable break down of the marriage and it was impossible to
preserve the same. The Hon’ble Supreme Court, therefore, set aside the
judgment of the High Court and restored the judgment of the trial Court
granting decree of divorce. Following are the salient features/instances
of human behavior relevant in dealing the case of mental cruelty as
expanded by the Hon’ble Supreme Court;
“(i) On consideration of complete matrimonial life of
the parties, acute mental pain, agony and suffering as
would not make possible for the parties to live with each
other could come within the broad parameters of mental
cruelty.
(ii) On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes abundantly
clear that situation is such that the wronged party cannot
reasonably be asked to put up with such conduct and
continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to
cruelty, frequent rudeness of language, petulance of
manner, indifference and neglect may reach such a
degree that it makes the married life for the other spouse
absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep
anguish, disappointment, frustration in one spouse
caused by the conduct of other for a long time may lead
to mental cruelty.
(v) A sustained course of abusive and humiliating
treatment calculated to torture, discommode or render
miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of
one spouse actually affecting physical and mental health
of the other spouse. The treatment complained of and
the resultant danger or apprehension must be very grave,
substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard
of conjugal kindness causing injury to mental health or
deriving sadistic pleasure can also amount to mental
cruelty.
(viii) The conduct must be much more than jealousy,
selfishness, possessiveness, which causes unhappiness
and dissatisfaction and emotional upset may not be a
ground for grant of divorce on the ground of mental
cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and
tear of the married life which happens in day-to-day life
would not be adequate for grant of divorce on the
ground of mental cruelty.
(x) The married life should be reviewed as a whole and a
few isolated instances over a period of years will not
amount to cruelty. The ill-conduct must be persistent for
a fairly lengthy period, where the relationship has
deteriorated to an extent that because of the acts and
behaviour of a spouse, the wronged party finds it
extremely difficult to live with the other party any longer,
may amount to mental cruelty.
(xi) If a husband submits himself for an operation of
sterilization without medical reasons and without the
consent or knowledge of his wife and similarly if the wife
undergoes vasectomy or abortion without medical reason
or without the consent or knowledge of her husband,
such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for
considerable period without there being any physical
incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after
marriage not to have child from the marriage may
amount to cruelty.
(xiv) Where there has been a long period of continuous
separation, it may fairly be concluded that the
matrimonial bond is beyond repair. The marriage
becomes a fiction though supported by a legal tie. By
refusing to sever that tie, the law in such cases, does not
serve the sanctity of marriage; on the contrary, it shows
scant regard for the feelings and emotions of the parties.
In such like situations, it may lead to mental cruelty.
48. As already discussed, taking into consideration the salient
features hereinabove, it would be very difficult to construe that the
marriage of the parties has deteriorated to such an extent that it would
be impossible to unite the couple. It cannot be said to be a fiction in
light of the attending circumstances. We hope that there is still scope for
the couple to restore the bond at least for the sake of their child
Mukund.
49. The learned Counsel placed reliance upon a judgment of Andhra
Pradesh High Court in case of Puneet Kumar Trivedi Vs. Nitika Pathak,
III (2020) DMC, 150 (DB) ALL MR. This judgment is based on the
facts of that case wherein there was an irretrievable break down of the
marriage. Litigation lasted as long as for 14 years. There was absolutely
no hope of settlement or reunion between the parties and the
matrimonial bond was beyond repair. This cannot be considered as a
precedent to be applied to the present set of facts.
50. The learned counsel then placed reliance on a judgment of this
Court in case of X vs. Y, 2014 (3) ABR 83. It was a case wherein the
appellant husband sought divorce on the ground of desertion and
cruelty. The trial Court had dismissed the petition against which the
appellant had approached this court. The facts of the case are quite
peculiar. Having considered all the relevant circumstances and evidence
on record, this Court set aside the judgment of the Family Court and
granted a decree of divorce to the appellant. The Division Bench of this
Court after surveying the various case laws on the subject observed that
the respondent’s acts and conduct amounts to desertion and, therefore,
the appellant-husband was entitled to a decree of divorce. Paragraphs
6, 7 and 8 of the aforesaid judgment read thus;
“6. There is no reference in the Respondent’s
pleadings or evidence to any serious illness or
pregnancy related complication during this period.
No report or medical record is produced. No
evidence of doctor’s advice is led. In the absence of
such evidence, it is hard to believe on the basis of
her bare word that during this entire six months
period, i.e, from 14 December, 1999 (when she left
for Ahmednagar saying that she would return the
next day) and 8 June 2000 (when she was admitted
for delivery) the Respondent could not come back
to Mumbai for medical reasons or on the doctor’s
advice. The Respondent’s act of not returning to
the matrimonial home during the period must be,
therefore, attributed to her conscious decision not
to return. At the same time, it ought to be noted
that this conscious decision is not actuated by any
fault or wrong on the part of the Appellant. The
Respondent has not alleged any act of cruelty on
the part of the Appellant at any time before 14
December, 1999. The Respondent has admitted in
her Written Statement that in Mumbai there were
only 2-3 persons in her matrimonial family and
sufficient accommodation where she comfortably
enjoyed her privacy. Even during the period of the
Appellant’s stay at Ahmednagar, in April, 2000, the
Appellant admittedly visited Ahmednagar and
stayed at her parent’s house for a couple of days
when the parties “celebrated the birthday of the
Respondent and Marriage Anniversary, showed love
and affection to each other”. The inescapable
inference from the pleadings and evidence noted
above is that the Respondent left, and stayed away
from, her matrimonial home of her own volition
and for no wrong on the part of the Appellant from
14 December 1999 till 12 June, 2000.
7. The learned trial Judge has, so far as this
period is concerned, whilst acknowledging that the
Respondent has not produced any documentary
proof of the fact that she was medically advised not
to take the long journey (between Ahmednagar and
Mumbai) during the days of pregnancy (i.e from
the third month of pregnancy till her delivery in the
ninth month) or not examined any doctor in
support, found her evidence believable because “the
evidence of the petitioner proves that she
underwent various tests of sonography”. The
learned trial Judge observed that it has been
brought on record that the Respondent’s health was
very delicate and she was weak. As we have
discussed above, there is absolutely nothing on
record to conclude that the Respondent’s health
was so delicate or weak that she could not
undertake the journey from Ahmednagar to
Mumbai. A pregnant lady undergoing sonography
on a couple of occasions proves nothing concerning
such delicate or weak health. That the Appellant
himself took her for medical check up in February,
2000 also proves nothing. The observation that
“had there been no medical advice, he would have
insisted the Respondent to come back to the
matrimonial home but the fact that neither he nor
his family members insisted her to come back to the
matrimonial home, is sufficient to prove that the
Respondent was under medical advice of Dr. Joshi
and that she was advised not to undertake the
journey”, is a rather strange assessment. The entire
appreciation of evidence by the learned trial Judge
in his behalf exhibits a serious error.
8. The second period is between 12 June 2000
(when the Respondent was discharged from the
maternity home after giving birth to a still born
baby) and 7 November 2000 (when the Appellant
filed his petition for restitution of conjugal rights).
The Respondent continued to stay at her parents’
house in Ahmednagar throughout this period. There
is no case of any medical reason for this stay. The
only explanation of the Respondent for not
returning to the matrimonial home during this
period is that “the petitioner or his family members
was (sic were?) never turned back from 14 June
2000 to take the respondent back to Mumbai”; that
they had “not enquired about her health or asked
her to return back to her matrimonial home”;that
“”the respondent never denies to go with the
petitioner for cohabitation; and that “the
respondent herself requested and called many times
to the petitioner to take her back but the petitioner
himself never responded to the Respondent’s
request”. None of this is, however, testified by the
Respondent in her examination in chief. Whilst it is
the case of the Appellant that he made several
attempts by himself and through his family
members to persuade the Respondent to come back,
the Respondent has denied such attempts. At the
same time, the Respondent has admitted in her
Written Statement that there were no disputes
between the Appellant and the Respondent during
this period and there was therefore no question of
any reconciliation. In the face of these pleadings
and the state of evidence as it stands, it is not
possible to believe the Respondent’s case that she
was keen to return the matrimonial home. The
Respondent had left the matrimonial home on her
own, never bothered to return to it and cannot be
heard to say that this was because the Appellant did
not come to take her back”.
50.1. The Division Bench, inter alia, placed reliance on a
judgment of the Hon’ble Supreme Court in case of Bipinchandra
Jaisinghbhai Shah Vs. Prabhavati, A.I.R 1957S.C. 176 wherein
the essential requisites of desertion were set out by the Hon’ble
Supreme Court which read thus;
“The essential requisites of desertion have long
been settled by the Supreme Court even before
the Hindu Marriage Act, 1955 came into force.
The Supreme Court, whilst dealing with a case
under Bombay Hindu Divorce Act, 1947, in
Bipinchanda Jaisinghbhai Shah Vs. Prabhavi,
A.I.R 1957 S.C.176, held as follows:
“For the offence of desertion, so far as the
deserting spouse is concerned, two essential
conditions must be there, namely (1)the factum
of separation, and (2) the intention to bring
cohabitation permanently to an end (animus
deserendi). Similarly two elements are essential
so far as the deserted spouse is concerned: (1)
the absence of consent, and (2) absence of
conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the
necessary intention aforesaid. The petitioner for
divorce bears the burden of proving those
elements in the two spouses respectively …
Desertion is a matter of inference to be drawn
from facts and circumstances of each case. The
inference may be drawn from certain facts which
may not in another case be capable of leading to
the same inference: that is to say, the facts have
to be viewed as to the purpose which is revealed
by those acts or by conduct and expression of
intention, both anterior and subsequent to the
actual acts of separation. If, in fact, there has
been a separation, the essential question always
is whether that act could be attributable to an
animus deserandi. The offence of desertion
commences when the fact of separation and the
animus deserendi co-exist. But it is not
necessary that they should commence at the
same time. The de facto separation may have
commenced without the necessary animus or it
may be that the separation and the animus
deserandiconincide in point of time”.
51. We are afraid, the ratio decidendi in the citation (supra) would
not be applicable to the case in hand for the reason that the appellant in this case initially filed a petition on the ground of cruelty and thereafter attempted to expand the scope by raising a ground of desertion.
Nevertheless, from what has already been discussed hereinabove by us
even a case of desertion has not been made out by the appellant. We
are, therefore, of the view that no inference can be drawn from facts
and circumstances on record that the respondent had deserted the
appellant.
52. Having taken into consideration the entire facts, circumstances
and evidence on record, we are of the considered view that at this stage
no case has been made out by the appellant for seeking a decree of
divorce on the ground of either cruelty or desertion. The impugned
judgment and decree, therefore, does not warrant interference in the
appeal. However, we grant liberty to the appellant to approach the
Family Court again, if so advised, to seek appropriate relief.
53. With these observations, the appeal stands dismissed. However,
there shall be no order as to costs.
[PRITHVIRAJ K. CHAVAN, J.] [UJJAL BHUYAN, J.]
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