2008 Supreme(Bom) 1100

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
B.H. MARLAPALLE & D.B. BHOSALE, JJ.
Arundhati Deepak Patil — Appellant
Versus
Deepak Bhaurao Patil — Respondent
FAMILY COURT APPEAL NO.110 OF 2006
Decided on : 4th August, 2008
Advocates appeared
Mr R.R. Salvi, for the appellant
Mrs Chitra Phadke, for the respondent

Headnote:Hindu Marriage Act, 1955 - Section 13(1)(ia)-Petition filed by husband against wife for divorce on the ground of cruelty-Petitioner alleged that she used to frequently visit her paternal home without permission and intimation that the facts and circumstances are not sufficient to hold that petitioner was subjected to mental cruelty.-Even if it is assumed that all the aforementioned incidents did occur in the manner, as stated by the petitioner and other witnesses, still the conduct of the respondent was not of such a character and gravity so as to give rise to a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with her or it would be impossible for them to live together without mental agony or torture, to entitle the petitioner to secure divorce. In other words, the respondent’s conduct was not such that no reasonable person would tolerate it. Parties to a marriage, tying nuptial knot, are supposed to bring about the union of two souls. It creates a new relationship of love, affection, care and concern between the husband and wife and that it brings two families together. Such ties cannot be allowed to be severed on the grounds/incidents or the conduct which on the face of it are ordinary wear and tear of matrimonial life. None of the aforementioned incidents or conduct of the respondent, could be termed as "grave and weighty" to be treated as a cause for cruelty. Though the word "cruelty" is not defined or it is not possible to say as to when a conduct of other spouse constitutes cruelty, the door of cruelty cannot be opened so wide otherwise divorce will have to be granted in every case for incompatibility of temperament. That was not the intention of Legislature when a ground of cruelty was made available for seeking a decree of divorce.

       It is true that the approach of the Court should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other. The situation, however, must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. In instant case, the cumulative effect of the facts and circumstances emerging from the evidence of the petitioner and the other witnesses is not sufficient to hold that the petitioner was subjected to mental cruelty due to the conduct of the respondent.

       Hindu Marriage Act, 1955 - Sections 13(1)(ia) and (ib)-Petition filed by husband against wife on the ground of desertion-Both are living separately from 11.7.1998-No notice or petition for restitution of conjugal rights that the respondent deserted petitioner without any reasonable cause is liable to be set aside.-In the present case, it is apparent from the overall facts and circumstances of the case that the petitioner did not care for the respondent and ’H’ or care to maintain ’H’ after 11.7.1997. He never made any attempt to bring them back. There is no material on record to show that he made any attempts to meet ’H’ either through mediator or through Court or through his sister and her husband who were known to be the friends of the respondent. This conduct of the petitioner speaks volumes. If he genuinely wanted to patch up and bring the respondent and ’H’ back home, as he tried to demonstrate by examining ’S’ (PW 5), he could have done so either through the mediator or by giving her notice or by filing a petition for restitution of conjugal rights. He did none. He sent ’S’ only after two years. It is not sufficient for a husband to show that his wife had left him without an intention to return and that he is willing to keep the wife but she without any reasonable cause was avoiding his company. In order to support his case or to shift the burden, he must further show that the attempts were made by him to get back the wife to the matrimonial home. Further not only he should make attempts but the attempts should seem to be honest and genuine. This is exactly what is lacking in the present case. None of the attempts made by the petitioner, in Court’s opinion, are honest and genuine.

       It is true that the petitioner and the respondents are living separately from 11.7.1998 but essential parameter of the act of desertion, that is, animus deserendi is not proved by the petitioner against the respondent. On the other hand it seems from the material on record that the petitioner, who felt "relieved" when the respondent left on 11.7.1998, never wanted the respondent to come back and was waiting for two years’ period to get over to seek divorce on the ground of desertion. No inference on the basis of material on record can be drawn that the respondent ever intended to bring cohabitation permanently to an end. Even the ground of desertion has not been proved by the petitioner in the present case. The trial Court has not considered the evidence in proper perspective and as a result of which wrong conclusions on the point of desertion have been drawn. The finding of the trial Court that the respondent deserted the petitioner without any reasonable cause for two years preceding the presentation is, therefore, liable to be set aside as it is not supported from the evidence on record.

       In the result, the appeal is partly allowed. The judgment and decree dated 27.6.2006 of divorce under Section 13(1)(ia) and (ib) of the Act is set aside. The petitioner shall continue to pay the maintenance as awarded by the Family Court till the respondent is allowed to resume cohabitation.