{"id":841,"date":"2009-12-25T12:18:58","date_gmt":"2009-12-25T06:48:58","guid":{"rendered":"http:\/\/mynation.net\/docs\/?p=841"},"modified":"2010-01-06T14:44:20","modified_gmt":"2010-01-06T09:14:20","slug":"locking-out-spouse","status":"publish","type":"post","link":"https:\/\/mynation.net\/docs\/locking-out-spouse\/","title":{"rendered":"Judgment : Bombay HC Locking out spouse from home is desertion"},"content":{"rendered":"

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
\nAPPELLATE SIDE<\/strong><\/p>\n

FAMILY COURT APPEAL NO.204 OF 2007
\nMrs. X : Appellant
\nVs.
\nMr. Y : Respondent
\n…
\nMr. M. P. Vashi with Ms. Prachi Khandke i\/b M. P. Vashi & Associates for Appellant.
\nMr. Vivek Kantawala for Respondent.
\nCORAM: S. A. BOBDE & S. J. KATHAWALLA, JJ.
\nDATED: DECEMBER 02, 2009.<\/p>\n

ORAL JUDGMENT (Per S. A. Bobde, J.)
\n1. This as an appeal filed by the wife against the Judgment of the Vth Family Court, Mumbai, decided on 28th September 2007, decreeing the petition for divorce filed by the Respondent (Petition No. A \u2013 1804 of 2003), under sections 13 (1) (ia) and 2 13 (1) (ib) of the Hindu Marriage Act, 1955, on the grounds of cruelty and desertion. The brief facts are that the parties got married on 1st May 1987. It appears that soon thereafter on 25th January 1989, the appellant wife left the company of the respondent husband, but later she filed a petition for restitution of conjugal rights (Petition No. 789\/89), which was decreed on 11th April 1990. She resumed cohabitation with the respondent after he paid her a sum of Rs. 24,500\/-.
\nThe parties apparently lived together for the period between 1st July 1993 and 15th January 1994. On 7th April 1994, she left the company of the respondent again.
\nShe returned the next day and lodged a criminal complaint against him for
\nharassment, which she ultimately withdrew on being paid Rs. 10,000\/- by the respondent. According to the respondent, on 1st August 1996, he was transferred to Valsad, but she refused to accompany him there as she was working and giving tuitions at Surat at the time. On 12th January 1997, when he visited her at Surat, she threw him out of the very premises, which he had rented for her to live in and further threatened him of dire consequences if he entered again. Since this incident, the parties have not cohabited till the date of filing of the divorce petition on 8th October 2003 and thereafter.
\n2. There is little dispute between the parties about the period over which they have lived together. Rather, the dispute is about who is the cause for their being unable to cohabit. The learned Family Court has in fact observed that the parties have been married for a period of 20 years and have been litigating against each other
\n3
\nfor a period of 18 years. Having considered the evidence on record, the Learned
\nFamily Court has decreed the petition for divorce both on the ground of cruelty
\nand desertion.
\n3. We have heard the Learned Counsel for both parties and also perused the
\nevidence before us. We find that the evidence is insufficient to grant a decree of
\ndivorce on the ground of cruelty. As defined by the Hon\u2019ble Apex Court in
\nDastane v. Dastane [(1975) 2 SCC 326] and reiterated in several decisions
\nthereafter:
\n\u201cThe enquiry has to be whether the conduct charged as cruelty is of
\nsuch character as to cause in the mind of the petitioner, a reasonable
\napprehension that it will be harmful or injurious for him to live with the
\nrespondent…\u201d
\nAs opined by a Full Bench of this Court in Keshaorao v. Nisha [AIR 1984
\nBom 413 (FB)]], the \u2018cruelty\u2019 contemplated is a conduct of such type that the
\naffected party cannot be reasonably expected to live with the other party. Each
\ncase is to be decided on its own merits. At the same time, we bear in mind the
\ncaveat laid down by the Hon\u2019ble Apex Court in Savitri Pandey v. Prem
\nChandra Pandey [AIR 2002 SC 591], that there is a difference between cruelty
\nand the ordinary wear and tear of married life. Petty quarrels and troubles, caused
\nby differences in the temperament of the parties cannot be cruelty. Notably, in the
\n4
\ncase of J. L. Nanda v. Veena Nanda [AIR 1988 SC 407], the Hon\u2019ble Apex
\nCourt held that it is not cruelty if petty quarrels result because the temperament of
\nspouses is not conducive to each other, even if these quarrels might result in
\nphysical or mental ailments. The Madhya Pradesh High Court too, in the case of
\nIndira Gangele v. Shailendra Kumar Gangele [AIR 1993 MP 59] held that the
\nunruly temper or whimsical nature of a spouse is not sufficient to establish
\ncruelty. We examine the present facts in the light of these legal principles. The
\nrespondent deposed before the Learned Trial Court that the appellant used to lose
\nher temper on trivial matters, which was insulting and humiliating for him, as a
\nresult of which he could not sleep peacefully, and this in turn disturbed his work.
\nWe find that this is a temperamental problem, which the appellant may have had
\nand by itself is insufficient to establish cruelty towards the respondent,
\nparticularly in the absence of any specific instances from which it could have been
\ninferred that this temperamental flaw was so disturbing, that it would constitute
\ncruelty towards the respondent in itself.
\n4. We now proceed to the contention of desertion of the respondent by the appellant.
\nSection 13 (1) (ib) of the Hindu Marriage Act, provides that a decree of divorce
\nmay be granted on the ground that the other party has deserted the petitioner for a
\ncontinuous period of not less than two years immediately preceding the
\npresentation of the petition. The Explanation to the section reads as follows:
\n5
\n\u201cExplanation \u2013 In this sub-section, the expression \u201cdesertion\u201d means
\nthe desertion of the petitioner by the other party to the marriage
\nwithout reasonable cause and without the consent or against the wish
\nof such party, and includes the wilful neglect of the petitioner by the
\nother party to the marriage, and its grammatical variations and
\ncognate expressions shall be construed accordingly.\u201d
\nAs has been laid down in several cases, including the landmark case of
\nBipinchandra Jaisinghbhai Shah v. Prabhavati [AIR 1957 SC 176], the
\nquestion of desertion is a matter of inference to be drawn from the facts and
\ncircumstances of each case. Both factum of physical separation and animus
\ndeserendi i.e. the intention to end cohabitation, must be proved to establish
\ndesertion. Moreover, as laid down in the aforementioned Explanation, there must
\nbe absence of consent of the other party and absence of conduct giving
\nreasonable cause to the spouse leaving the matrimonial home to form the
\nintention to leave. Importantly, Bipinchandra\u2019s case [supra], among others, has
\nmade it clear that it is not necessary for the deserting spouse to leave the home in
\norder to constitute desertion. If one spouse by his or her words compels the other
\nside to leave the matrimonial home or stay away therefrom, without reasonable
\ncause, the former would be guilty of desertion, though it is the latter who is
\nseemingly separated from the other. The ejection of the other spouse from the
\n6
\nhome with the intention not to cohabit equally constitutes desertion. This is the
\nprinciple of \u2018Constructive Desertion.\u2019
\n5. In the present case, we find that the respondent has established and in fact, the
\nappellant has not denied, that she did not allow the respondent to cohabit with her
\nat the house in Surat, when he visited on 12th January 1997. She threw him out of
\nthe very house, which he had rented for her to live in, and threatened him with dire
\nconsequences if he dared to enter. This incident occurred over and above the fact
\nthat she herself had refused to travel and reside with him at Valsad, after he was
\nposted there on 1st August 1996, ostensibly because she was teaching and giving
\ntuitions at the time in Surat. The Learned Family Court has observed that there is
\nno challenge by the appellant to the evidence of the respondent that she was not
\ninterested in cohabiting with him at Valsad. In any case, we find that merely
\nbecause the respondent had moved to Valsad, due to his transfer, it cannot be
\nconsidered to be reasonable cause for the appellant refusing to cohabit with him
\nwhen he visited her in Surat, and in fact constitutes wilful neglect on her part. Her
\nconduct on the whole, is evidence of animus deserdendi. The incident at Surat
\nclearly compelled the respondent to leave and stay away from the matrimonial
\nhome. There is no dispute as to the factum of separation i.e. that the parties did not
\nreside together from the date of the incident at Surat i.e. 12th January 1997, until
\nthis petition was presented on 8th October 2003 and thereafter.
\n7
\n6. At this stage, we may note that the Learned Family Court has not passed any
\norders as regards maintenance, as no prayer for such orders was made by the
\nappellant. However, Mr. Vashi, the learned advocate for the appellant has
\nsubmitted that the appellant has preferred an application for maintenance before
\nthis Court. It would be proper if this application is heard and decided by the
\nFamily Court itself. Accordingly, the learned advocate for the appellant seeks
\nleave to withdraw the application and present it, in accordance with the law,
\nbefore the Family Court. The said application is allowed to be withdrawn.
\n7. In the result, the divorce decree is upheld under section 13 (1) (ib) against the
\nappellant on the ground of desertion. The appeal is hence dismissed. No order as
\nto costs.
\n8. At this stage, the learned advocate for the appellant seeks a stay of this order to
\nenable the appellant to approach the Hon\u2019ble Supreme Court. We see no reason to
\ngrant such a prayer. However, we consider it appropriate to continue with the
\ninjunction, already passed against the respondent pending final decision of this
\nappeal, which restrains him from remarrying, for a period of eight weeks from
\ntoday.
\nOrder Accordingly.
\n(S. A. BOBDE, J.)
\n(S. J. KATHAWALLA, J.)<\/p>\n","protected":false},"excerpt":{"rendered":"

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