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GUJARAT HIGH COURT
Biren Vaishnav and Nisha M. Thakore, JJ.
Rohan Hirendrasingh Bayed – Appellant
versus
Deepika – Defendant
R/First Appeal No.5325 of 2019 With Civil Application (For Direction) No.1 of 2021 in R/First Appeal No. 5325 of 2019
Decided on 30.9.2024
Counsel for the Parties:
For the Appellant No.1:Mr. Narendra Jain, Advocate for Aditya R Gundecha (8869), Mr. Apurva A Dave (3777)
For the Defendant No.1: Mr. R.D. Kinariwala (6146)
IMPORTANT POINT
Divorce – Allegation of cruelty has to be considered viewing marriage life as a whole.
Headnote:
Hindu Marriage Act, 1955 – Section 13(1)(i-a)—Divorce—Cruelty by wife—Trial Court found that instances are not so serious so as to warrant inference that behaviour of respondent-appellant be termed as cruel—Merely because for welfare of family if father of respondent had at some stage in life of son-in-law tried to contribute to growth of his son-in-law to see that family remains viable and marriage survives, it cannot be said that this would amount to interference in family life of couple so as to brand it as cruelty—Viewing marriage life as a whole, incidents are not ones which can be termed as a conduct tantamounting to cruelty on part of respondent—As far as arguments regarding irretrievable breakdown of marriage is concerned, that is not a ground which is available to Court to view in scope of appeal—Order of Trial Court affirmed.(Paras 5.7, 5.8 and 6)
Result: First Appeal dismissed.
JUDGMENT (CAV)
Biren Vaishnav, J.—This appeal has been filed by the appellant –husband on being aggrieved by the judgement and decree dated 12.06.2019, passed by the Family Court No.3, Surat. By the aforesaid judgement and decree, the Family Suit No. 350 of 2014 filed by the appellant – husband, under Section 13(1)(i-a) of the Hindu Marriage Act, has been dismissed.
2. Facts in brief are as under:
2.1 The appellant and the respondent got married on 11.07.2008 at Kolkata. It was the case of the appellant that a daughter ‘Aaradhya’ was born out of the wedlock on 05.03.2012.
2.2 According to the appellant, the couple went to the United States of America, and thereafter to Canada. It is the case of the appellant that the respondent – wife was habitual to live a high standard life which the appellant was incapable of fulfilling.
2.3 The case of the appellant further was that since the in-laws were at Surat, he was pressurized into coming back to Surat and engage in a business of a transport agency arranged by his father-in-law. There was a continuous interference in the family matters at the instance of his in-laws and this resulted in cruelty at the hands of wife, and therefore, he sought divorce. Having withdrawn from the transport agency, the appellant started his textile business. In the plaint filed by the appellant, it was the case of the appellant that the respondent used vulgar language against his parents. That she would always reside at her parental house. She would not permit the appellant to interact with his daughter. Extensive pleading has been made in the plaint to suggest that the family members of the respondent –wife would threaten his family members and servants. A bungalow was bought next to her parental home by the wife’s father which was the result of interference at their end making his matrimonial life difficult.
2.4 The defendant – respondent wife appeared before the Family Court and filed her written statement at Exh.9 denying the contentions. It was her case that after the marriage they went to the United States of America. She was shocked to find that the husband had a habit to gamble. On flimsy and trivial issues, he would beat her. As a result of this, her father persuaded both to come back to Surat. He was requested to involve himself in the business of her father which he did. Subsequently, he started his own business. When the husband demanded the money for purchase of a new bungalow, her father was constrained to lend money so that she could save her marriage. She was being harassed by her in-laws as a result of the birth of a girl child. The parties led oral evidences. Apart from the appellant examining himself at Exh.13, two witnesses were examined on his behalf, namely, one Vijaya Hirendrasinh and one Sonam Piyush Bapna at Exh.26. Documentary evidence was also produced.
2.5 The respondent – wife Deepika examined herself at Exh.30 and the witnesses Gautamchand and one Nipun Khilesara examined themselves at Exh.42 and 44 on behalf of the wife. On appreciation of the evidence, the Family Court found that there was no evidence on record to prove that the respondent – wife had given the appellant mental cruelty. The suit was accordingly dismissed.
3 Mr. Narendra Jain, learned counsel appearing for the appellant – husband, would make the following submissions:
3.1 He would submit that it is an undisputed proposition that the parties have been living separately since April 2013 and all attempts to reconcile have failed. Both the sides agree that there is no possibility of the husband and the wife being able to live together. He would, therefore, submit that this was a case of an irretrievable breakdown of marriage and this Court, therefore, should modify the decree and grant divorce to the parties.
3.2 Mr. Jain, learned counsel, would rely on a decision in the case of Shri Rakesh Raman vs. Smt. Kavita., reported in 223 SCC Online Sc 497. He would rely on paragraph 12 to submit that if there is a defact
