The court established that a spouse's independent actions and refusal to cohabit can constitute grounds for divorce under the Special Marriage Act.

JUDGMENT :

BIREN VAISHNAV, J.

1. First Appeal 4298 of 2022 has been filed by the Appellant-wife. She has filed this appeal challenging the judgement and decree dated 30.09.2022 passed in Family Suit No.2361 of 2017 passed by the Family Court No.2, Ahmedabad. By the judgement and decree so passed, the Family Court has allowed the suit filed under Section 27(1)(b) of the Special Marriage Act, 1954.

2. Facts in brief are as under:

2.1 The respondent-husband is in the Indian army while the appellant is a qualified Dentist.

2.2 The parties got married on 03.09.2009 as per Hindu rituals and subsequently the appellant being a Christian marriage rituals were also performed at the Church on 04.09.2009.

2.3 It was the case of the husband that after their marriage when they went to Pune, he discovered that the Appellant-wife had an abnormal behavior and personality. She was hostile, selfish and livid in her behavior. Whenever the parties came to Ahmedabad from Pune, the wife would always stay with her parents rather than staying at her marital home. She would threaten the husband to stay with her lest she would obtain divorce.

2.4 The case of the husband before the Family Court in his divorce petition was that the wife without informing him was keen on starting her Dental Clinic and cards for opening of the clinic were printed without his knowledge and therefore she was fiercely independent. During the husband’s posting at Kargil, the wife conceived and a daughter was born on 12.4.2012. While they returned from their Kargil posting, on 11.01.2013 the wife directly left from the Railway Station for her parental home and thereafter wrote directly to the Military authorities for maintenance, return of her belongings from the official accommodation and therefore according to husband it was a case of desertion and cruelty.

2.5 The Family Court after assessment of evidence on record and hearing the arguments came to the conclusion that the respondent-husband had made out a case of desertion and cruelty by the wife and therefore by the judgement and decree ordered dissolution of the marriage. Hence the wife is in appeal.

3. Mr.Makbul Mansuri, learned Counsel for the appellant would submit that the appellant is and was always willing to see that the marriage subsists and in fact from the stand taken before the Family Court, it was clear that the appellant was always in favour of reunion and therefore the Family Court committed a grievous error in passing a decree of divorce on the ground of cruelty and desertion.

3.1 Mr.Mansuri would take us through the orders of the Armed Forces Tribunal and various letters exhibited by the Family Court to submit that the Appellant’s wife’s approach was always conciliatory and for reunion and the Family Court committed an error in holding that the appellant was a lady who wanted to be independent and therefore the fact of her deserting the husband was proved.

3.2 Mr.Mansuri would submit that in fact the behavior of the husband would suggest that the husband was not at all interested in a family life and would never take care of the wife. He would submit that when the child named Dhairya was born, he would not foster her or be a loving father.

3.3 In fact it was the appellant’s sister who was also a qualified Dentist and wanted to open a clinic and in the invitation card, the name was suggested and printed of the wife and that did not go down well with the parents of her husband and the whole unfortunate incident of harassment from the in-laws compelled her to go to her parental home.

3.4 By taking us through the judgement and the records wherein the documents in the form of letters written to each other are produced, the only submission of the learned Counsel for the appellant was that the wife-appellant herein had no reason to desert her husband and in fact the entire record would indicate that she was always willing and in fact even today willing to reunite with the husband and save the marriage.

4. Mr Fouzan Soniwala, lea