2021 Supreme(Bom) 1011

IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR
A.S. Chandurkar, Pushpa V Ganediwala, JJ.
Darshana - Appellant
Versus
Alok Namdeo Borkar - Respondent
Family Court Appeal No. 1 of 2019
Decided On : 06-04-2021

1. Cruelty as a ground for divorce has to be distinguished from the ordinary wear and tear of family life and has to be adjudged on the basis of the course of conduct which would in general be dangerous for the spouse to live with the other. 2. Acquittal in criminal proceedings initiated by the wife against the husband and his family members by itself would not be sufficient to hold that initiation of such proceedings resulted in causing mental cruelty to the husband. 3. Desertion would be a matter of inference to be drawn from the facts and circumstances of the case and even if there has been separation the question to be considered is whether that act could be attributable to an animus deserendi. 4. A marriage contracted in violation of the proviso to Section 15 of the Hindu Marriage Act, 1955, would not be void but merely invalid.

Headnote:

FAMILY COURT - DIVORCE - GROUNDS - CRUELTY - DESERTION - SUBSEQUENT MARRIAGE - EFFECT - HINDU MARRIAGE ACT, 1955 - SECTION 13(1)(I-A), (I-B), 15, 20, 21, 23(1) - HINDU MARRIAGE AND DIVORCE RULES, 1955 - RULE 4 - CODE OF CIVIL PROCEDURE, 1908 - ORDER VI RULES 2 TO 4, ORDER VII RULE 1, ORDER XVIII RULE 17.

Fact of the Case:

Husband filed a petition for divorce on the grounds of cruelty and desertion. The wife opposed the petition and denied the allegations. The Family Court allowed the petition and granted a decree of divorce. The wife appealed.

Finding of the Court:

1. Cruelty - The husband failed to prove that the wife treated him with cruelty. The incident of 26.02.2007, on which the husband relied, was not of such a nature or gravity to hold that it amounted to cruelty. The allegations made by the wife against the husband in the written statement were not unsubstantiated and she had led evidence to prove the same. The initiation of criminal proceedings by the wife against the husband and his family members, which proceedings were subsequently quashed, did not amount to cruelty on the part of the wife. 2. Desertion - The husband failed to prove that the wife deserted him. The wife was pursuing a course in Pilot training at Baramati and Mumbai with the consent of the husband. She and the husband were residing together at Baramati, Mumbai, and Nagpur as and when permissible. The fact that the wife came to Nagpur to attend the religious ritual after the death of her father-in-law, despite not being informed by her husband, clearly indicated the absence of animus deserendi on her part. 3. Subsequent marriage - The husband's subsequent marriage during the period prescribed by Section 15 of the Hindu Marriage Act, 1955, was not void but merely invalid.

Issues: 1. Whether the husband had proved that he was entitled to be granted divorce on the ground of cruelty? 2. Whether acquittal of the husband and his family members in proceedings under Section 498-A of the Penal Code by itself would amount to causing mental cruelty? 3. Whether the husband had proved that his wife deserted him so as to constitute a ground for divorce? 4. What is the effect of the subsequent marriage of the husband? 5. Whether the judgment of the Family Court deserves to be interfered with?

Ratio Decidendi: 1. Cruelty - Cruelty has to be distinguished from the ordinary wear and tear of family life and it has to be adjudged on the basis of the course of conduct which would in general be dangerous for the spouse to live with the other. Mere trivial, irritations, quarrels, normal wear and tear of married life which occur in day-to-day life would not be adequate to grant divorce on the ground of mental cruelty. 2. Acquittal in criminal proceedings - Acquittal in criminal proceedings initiated by the wife against the husband and his family members by itself would not be sufficient to hold that initiation of such proceedings resulted in causing mental cruelty to the husband. 3. Desertion - Desertion would be a matter of inference to be drawn from the facts and circumstances of the case and even if there has been separation the question to be considered is whether that act could be attributable to an animus deserendi. The expression "desertion" means desertion by the other party to the marriage without reasonable cause and without the consent or against the wish of such party. 4. Subsequent marriage - A marriage contracted in violation of the proviso to Section 15 of the Hindu Marriage Act, 1955, would not be void but merely invalid.

Final Decision: The appeal was allowed, the judgment of the Family Court was set aside, and the petition for divorce was dismissed.