While hearing a divorce petition, Bombay High Court noted that the wife’s decision to stay abroad for her career growth is not “unjustified” and “selfish”. The court refused to grant a divorce to a husband who had sought dissolution of marriage on the grounds of cruelty and desertion by his spouse by refusing to join him in India.
Taking note of the wife’s flourishing career with a pharmaceutical company in Canada, the court noted that the husband can join her there since it was his idea to settle there.
The division bench of Justice Ujjwal Bhuyan and Justice Prithviraj Chavan dismissed the divorce petition filed under Section 13 (1)(ia) (cruelty) and 13(1)(ib) (desertion) of the Hindu Marriage Act 1955.
“This being the status of the respondent (wife), it would not be justified, in any way, expecting her to return to this country when she is already well settled over there…The desire of the respondent(wife) to settle in Canada is actuated by the fact that it was the appellant (husband) who had first consciously decided to settle in the foreign country. As such, the wish of the respondent cannot be branded as an act of selfishness or the act on her part cannot be said to be unjustified. Thus, in no way, it could be said to be cruelty meted out to the appellant by the deserting spouse,” the order stated.
The court observed that the husband was not able to produce any medical certificates as he had cited his ill health as the reason behind not joining his wife in Canada.
“We hope that there is still scope for the couple to restore the bond at least for the sake of their child,” the bench noted.
The couple who are engineers by profession married each other on January 5, 2004, after an eight years courtship. The husband obtained Canadian citizenship in 2003 and then the wife obtained a spouse visa.
In 2009, the petitioner met with a car accident during which his wife nursed him. In 2010, they had a child. The same year, the husband lost his job due to recession and suffered medical illness. After which they returned to India. The husband claimed that his wife left for Canada along with their son after about a month.
Husband’s Pleadings and Evidence Quite Vague
As per the husband, he had approached the court for the restitution of conjugal rights but later filed a plea for dissolution of marriage after the wife didn’t appear in the proceedings. The divorce proceedings were decided ex-parte and dismissed by the family court. The court found the husband’s pleadings and evidence were quite vague.
Restitution of Conjugal Rights
When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied with the truth of statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. The burden to prove that there was a reasonable excuse for withdrawal from society always lies on the person who has withdrawn from society
The petition can be filed under Section 9 of the Hindu Marriage Act before the district court.
Section 13 (1) (ia) of Hindu Marriage Act, 1955
Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnisation of the marriage, treated the petitioner with cruelty.
Section 13 (1) (ib) of Hindu Marriage Act, 1955
Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has deserted (voluntary abandonment of one spouse by the other) the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.
What Constitutes Cruelty and What Not?
- Mere quarrel, petty outrageous behaviour, or differences between the spouses doesn’t come under the ambit of cruelty.
- Cruelty implies violent behaviour.
- The cruelty conduct should be grave and weighty.
- Besides physical torture, mental torture also amounts to cruelty.
- Having an affair or committing adultery.
- The constant manifestation of agony, rage with the addition of yelling or abusing at the spouse.
- Demoralizing and restricting the spouse by every means to be an independent individual.
- Not disclosing any fact or incident of an acquired sexually transmitted disease.
Cruelty was added as a ground for divorce after the 1976 amendment in Hindu Marriage Act, 1955.
Common Grounds for Divorce in India
- Venereal disease
- Presumption of death
Leprosy was removed as a legal ground for divorce in 2019 citing the fact that it is a curable disease now.