The court established that a marriage can be dissolved on the grounds of cruelty when continued cohabitation perpetuates mutual suffering, emphasizing the wife's sacrifices and husband's unjust actions.

JUDGMENT :

N.S.SANJAY GOWDA, J.

1. The husband, in these appeals, is challenging the order passed by the Family Court, by which the petition filed by the wife for restitution of conjugal rights under Section 9 of the HINDU MARRIAGE ACT has been allowed and also against the rejection of the husband’s counter claim for divorce, which had been sought for on the ground that the husband was inflicted with cruelty by the wife.

2. The parties are referred to by their marital status for the sale of brevity.

3. The facts, as could be ascertained from the pleadings, which have led to filing of the appeals, are as follows: -

(1) The wife was working as a teacher in Ahmedabad and she got married on 27.5.2013. This was the first marriage of the wife and the second marriage of the husband.

(2) The husband had, in fact, lost his first wife when she committed suicide and out of his earlier marriage, the husband had a son, who was aged about 13 years as on the date of his second marriage.

(3) It is the case of the wife that pursuant to the marriage, she and her husband along with his son and her in-laws were staying in a three bedroom apartment which was owned by her husband.

(4) Thereafter, there was difference of opinion, as result of which, she left for Ahmedabad in November 2013.

(5) It is also borne out from the record that she did address email to her husband complaining about the fact that she was forced to share their bed along with his 13 years old son.

(6) The wife states that on return to Mumbai to rejoin her matrimonial home, she found that she was required to live in a rented flat to which all her belongings had been shifted without her knowledge or consent as against the three bedroom apartment which was owned by her husband and in which she was residing with her husband earlier before she had left to Ahmedabad.

(7) The record indicates that by the time, the wife returned from Ahmedabad in May 2014, the husband had in fact had transferred all the three properties that he owned i.e. two flats at Mumbai in favour of his son and other property in the name of his father.

(8) Differences cropped up thereafter, resulting in complaints being lodged by the husband to the Police about refusal of the wife to eat and also the wife lodging a complaint to the Police for offences under Sections 323 and 504 of the Indian Penal Code.

(9) The wife contends that she was sent to her parental home on the occasion of Rakshabandhan in July 2015 and thereafter, her husband did not come to take her back to Mumbai.

(10) It is borne out from the record that on 9.9.2016, the wife had filed a complaint to Samtanagar Police Station regarding her intended visit to her husband’s house and expressing her apprehension that she could be exposed to violence and therefore be afforded protection.

(11) The differences, which had cropped up from May 2014, did not subside and the husband proceeded to file a petition seeking for a divorce in Mumbai in the month of January 2017. This petition was filed on the allegations that the wife was guilty of inflicting cruelty on the husband.

(12) On 5.5.2017, the wife filed a petition seeking for restitution of conjugal rights in the Family Court at Ahmedabad.

(13) In this petition, she stated that she had initially stayed at her matrimonial house for about 5 months, during which time, she was harassed and she thereafter, left to her parental home and when she was at her parental house, her belongings were shifted from the apartment which was owned by her husband and had been moved to a rented premises. She sta