Mumbai High Court grants divorce to husband – Wife’s demand for separate house without cause amounts to cruelty

Now if only such judgments could be applied like a thumb rule, almost 60-70% of men calling MRAs for help will be able to get divorce!

Update Jul 17, 2015: A reader has sent the text of full judgment which is given later

Wife’s demand for separate house without cause amounts to cruelty: Bombay High Court

Wife’s demand for a separate residence amounts to cruelty when there’s no justifiable cause for seeking the same, said the Bombay high court while granting a divorce to a man whose wife deserted him within three months of marriage.

A division bench of justices VA Naik and AM Badar of the Nagpur bench of the HC observed: “It is necessary to note that the wife has, without any justifiable cause, left the company of the husband for more than 7-8 years and the husband was entitled to a decree of divorce, in the circumstances of the case…”

Now people may be thinking.  “My wife has been doing the same things to me.  Right from Day 1/ 2nd week/ 3rd month of marriage she has been asking for me to stay separate from my parents.  She has been abusive to my mother… and so on.  I should be able to get divorce based on this judgment.”

One key thing many people fail to notice in many such divorce judgments is the following:

Number of years between the date of divorce petition, and the date of divorce decree

Yes.  Going by a commonly observed thing in many divorce judgments, that’s the most important thing in divorce cases filed on grounds of cruelty, whether by husband or wife.  Number of years the case has been running.  And it will be even more true for husbands: those rascals, scoundrels, wife-beaters, who are only interested in dowry, and second marriages!  How dare they file for divorce on grounds of cruelty?

Further from the news:

The couple’s marriage was solemnised on December 13, 2006, and the wife left him on March 5, 2007, never to return to the matrimonial home.

The petitioner’s advocate UJ Deshpande argued that in the three months of cohabitation the wife constantly demanded to live separately without any reasonable cause. He also said after the family court held that the wife was not justified in asking the husband to stay separately and leave the matrimonial home, it ought to have granted a decree of divorce in favour of the husband.

The trial court did not grant him divorce even after agreeing with some of his allegations; and finally after appeal to high court, the divorce decree from high court has been given in Jun 2015.  It is not mentioned in the news about the date when the divorce petition was filed by husband.  Assuming husband filed for divorce one year after when wife had left house in Mar 2007, the final decree by high court took more than 7 years.

I guess the general thinking that goes on in minds of Indian judges is that let the couple run around the family courts for a few years, let them exhaust themselves physically, mentally, and maybe deplete themselves financially paying to divorce lawyers; and maybe they will get some sense and agree to get back together (Really?), or agree for mutual consent divorce.

Which is why in family courts, the actual work on any divorce case starts only after about 5 years of filing of the case.  Initial 2-3 years are taken up in routine processes of process of summons and delays, mediation, written statement/objections.  Another 1-2 years may be taken up in deciding on HMA 24 interim maintenance.  And then the evidence starts in the divorce case.  That the family court judges say in open court that high court will be asking about status of long pending case, means that they start to worry only about pending cases for more than 5-6 years.  That’s about the time when high courts start monitoring the statistics of yet to be disposed cases.

Maybe judges think that only those who have been fighting for 5-6 years on their divorce cases and haven’t changed their stance are fit to be taken up for further evidence and disposal based on that.  Maybe all others are facing just normal wear and tear of marriage, and running around in courts will make them realize that living together as couple might be such a great idea.  Why not give them a painful experience so they may realize that married life can be much happier in comparison

So the secret to getting a divorce on grounds of cruelty: File it, and forget it for 4-5 years.  Go to Himalayas for 6-9 months and the family court judges or your lawyer (provided his/her fees is paid) won’t even notice your absence Then start the evidence process and wait for 2-3 years for it to grind it through the family court, and maybe high court too if it goes for appeal.

Then your divorce news may be published in the newspapers like in this case, if it is nearer to “man bites dog” variety, that is.

Full text of judgment below:

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FAMILY COURT APPEAL NO.353/2014
APPELLANT : Yogesh Arun Sonawane
Aged : 36 Years, Occp. : Architect
R/o Plot No.A3,
Tarkeshwar Kunj
Apartment, Anand Nagar, Suncity Road,
Pune – 411 051.
…Versus…
RESPONDENT: Sau. Jyostna Yogesh Sonawane
Aged : 34 Years, Occp. : Architect
R/o C/o Manohar Motiram Wane,
Swavlambi Nagar, Gaurakshan Road,
Akola.
Shri
U.J. Deshpande, Advocate for appellant
Shri J.B. Gandhi, Advocate for respondent
CORAM
: SMT. VASANTI A. NAIK AND
A.M. BADAR, JJ.
DATE : 07.04.2015
ORAL JUDGMENT : (PER : SMT. VASANTI A. NAIK , J.)
Admit. Heard finally with the consent of the learned Counsel
for the parties as record and proceedings are received.
By this appeal, the appellant husband
challenges the
judgment of the family Court, Akola dated 15.12.2012, dismissing the
petition filed by the appellant – husband for dissolution of marriage on the
ground of desertion and cruelty.

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Few facts giving rise to the appeal are stated thus :
The appellanthusband
and the respondent – wife were
married as per Hindu Rites and Customs on 13.12.2006. It is the case of
the husband in the Hindu Marriage Petition filed by him for grant of decree
of divorce that since the beginning the wife was not behaving properly with
the family members of the husband. It is pleaded that the wife behaved
arrogantly with her motherinlaw
and brotherinlaw.
According to the
husband, the efforts of the husband to convince the wife to stay happily in
the family went in vain as the wife continuously pestered the husband for
residing separately and away from the family members of the husband. It is
pleaded that the wife refused to cohabit
only with the husband and asked
the husband to sever the ties with the other members of the family. It is
pleaded that the wife left the matrimonial home on 1.1.2007 and on
27.1.2007 without any rhyme or reason. According to the husband, on
4.3.2007 a meeting was arranged in the house of the paternal uncle of the
wife and at that time the wife refused to resume cohabitation.
It is pleaded
that on 5.3.2007 the wife left the company of the husband and went to
reside in the parental home. The husband, therefore, filed the petition for
grant of decree of divorce on the ground of desertion and cruelty. Before
the Mediator, the parties agreed to give a try for saving the marriage and
the husband arranged for a separate accommodation at Mangle Chawl on
PuneSatara
highway, by paying a deposit of Rs.40,000/and
on a monthly
rent of Rs.4,000/.
It is pleaded that the wife however refused to reside

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with the husband in the said Chawl and asked the petitioner to secure
accommodation in a good locality. It is pleaded that the action on the part
of the wife in leaving the matrimonial home without rhyme or reason
clearly showed that the wife had no desire to stay with the husband and his
family and he was therefore entitled to grant of a decree of divorce, on the
ground of desertion and cruelty.
The wife filed the written statement and denied the claim of
the husband. It was denied by the wife that she continuously pestered the
husband for residing separately and away from his family members. It is
pleaded that the mother of the husband treated her with cruelty. It is
pleaded that she was asked to cook the food and perform the matrimonial
duties despite the fact that she was pregnant and was asked by the Doctor
to stay away from the kitchen. It is pleaded that the mother of the husband
abused her when the husband was away from the matrimonial home and
had gone to Nashik for his professional duties. It is pleaded that when the
wife informed the husband after his return from Nashik about the cruel
behavior of the husband’s mother and his elder brother, the husband got
agitated and argued with her. It is pleaded that she was prevented from
talking with her parents on the telephone when the husband was away. It
is pleaded that the mother of the husband started arguing with her when
she was searching for some biscuits on 21.1.2007 as she was hungry. It is
pleaded that she was compelled to leave the matrimonial home on
6.3.2007 and she stayed with her parents since then, along with her two

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daughters. It is pleaded that the separate residence arranged by the
husband was in a very bad locality and was inconvenient. It is pleaded that
the separate residence was secured by the husband in a locality of
labourers and the residence had a roof of tinshed.
The wife sought for the
dismissal of the Hindu Marriage Petition.
On the aforesaid pleadings of the parties, the family Court
framed the issues and the parties tendered evidence in support of their
respective cases. The husband examined himself and reiterated the facts
pleaded in the petition. The wife examined herself and also examined her
father and one Nilesh in support of her case. On an appreciation of the
evidence on record, both oral and documentary, the family Court came to a
conclusion that the husband had been successful in proving that the wife
had treated him with cruelty. The family Court, however, did not answer
the issue in regard to the desertion by the wife in favour of the husband.
Despite a finding that the wife had treated the husband with cruelty, the
family Court refused to grant a decree of divorce in favour of the husband
on the ground that the husband cannot take advantage of his own wrong.
The family Court relied on the provisions of Section 23 (1) (a) of the Hindu
Marriage Act, 1955 to hold that the husband was not entitled to a decree of
divorce on the ground of cruelty as he had not followed the terms of the
settlement executed before the Mediator in the true letter and spirit by not
hiring a suitable accommodation for the separate residence for himself and
his wife. The judgment of the family Court is challenged by the husband by
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this appeal.
Shri Deshpande, the learned Counsel for the husband
submitted that the family Court was not justified in refusing to grant a
decree of divorce on the ground of cruelty after recording a finding in
regard to the cruel treatment of the wife against the husband by
erroneously resorting to the provisions of Section 23 (1) (a) of the Act. It is
stated that the family Court ought to have granted a decree of divorce after
recording the finding that the wife treated the husband with cruelty. It is
stated that a mere demand by the wife to have a separate residence, so that
the husband and wife could live separately from the family members of the
husband, without any reasonable cause tantamounts to cruelty. It is stated
that after the family Court held that the wife was not justified in asking the
husband to stay separately and leave the matrimonial home, the family
Court ought to have granted a decree of divorce in favour of the husband.
It is stated that when the family Court did not accept the evidence of the
wife in regard to the illtreatment
by her motherinlaw,
the family Court
ought to have dissolved the marriage by a decree of divorce. It is stated
that the family Court could not have relied on the provisions of
Section 23 (1) (a) of the Act for refusing to grant a decree of divorce in
favour of the husband. It is stated that the husband had arranged for a
separate residence in accordance with his financial condition and the very
attitude of the wife in refusing to stay with the husband in the separate
accommodation on the ground that it was inconvenient would further

6

demonstrate cruelty on the part of the wife. The learned Counsel relied on
the unreported decisions of this Court in First Appeal No.1253/2008
(Smt. Bhawna w/o Vijaykumar Sakhare…Versus…Vijaykumar s/o
Tarachand Sakhare) decided on 13.08.2012, First Appeal No.259/2012
(Rahul Pritamsingh Chhabra…Versus…Smt. Shipra w/o Rahul
Chhabra) decided on 28.07.2014 and the decision of the Hon’ble
Supreme Court reported in AIR 2002 Supreme Court 88 (Adhyatma
Bhattar Alwar…Versus…Adhyatma Bhattar Sri Devi) to substantiate his
submission that the very demand by the wife to stay in a separate
accommodation with the husband and away from the family members
would amount to cruelty and the husband cannot be faulted for not
arranging a separate accommodation as per the desire of the wife.
Shri Gandhi, the learned Counsel for the wife supported the
judgment of the family Court and submitted that the family Court was
justified in dismissing the petition for divorce as the husband was not ready
to reside with the wife in a separate residence and had arranged for an
inconvenient accommodation in a tinshed
without any facilities, after the
parties agreed to reside together in a separate residence in accordance with
the arrangement and consent terms recorded in the presence of the
Mediator. It is stated that the husband had not found a suitable
accommodation in which the wife and the husband could reside and the
family Court has therefore rightly held that the husband cannot take the
advantage of his own wrong. It is submitted that there was sufficient cause

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for the wife to seek a separate residence as the motherinlaw
of the wife
was treating her with cruelty. The learned Counsel for the wife sought for
the dismissal of the appeal.
On hearing the learned Counsel for the parties, it appears that
the following points arise for determination in this appeal.
(1) Whether the family Court could have
dismissed the petition filed by the husband for a decree
of divorce by resorting to the provisions of
Section 23 (1) (a) of the Hindu Marriage Act ?
(2) Whether the husband is entitled to a decree
of divorce on the ground of cruelty ?
(3) What order ?
To answer the aforesaid points for determination, it would be
necessary to consider the pleadings and the evidence of the parties. It
would not be necessary to reproduce the pleadings of the parties as the
pleadings are already stated in this judgment. The husband had examined
himself. He had reiterated the facts stated in his pleadings, in his
examinationinchief.
The husband was crossexamined
at length. However,
there is nothing in the crossexamination
of the husband which falsifies the
case of the husband in regard to the cruelty meted out by the wife to the
husband and his family members. Though the wife tried to point out
through the crossexamination
of the husband that the marriage between
the elder brother of the husband and his wife was dissolved in view of the

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cruelty meted out by the husband’s mother to the wife of Dinesh also, the
husband denied the said fact. It was denied by the husband in his
crossexamination
that due to the illtreatment
of his brother and mother,
the wife of Dinesh had secured a decree of divorce. The husband denied
that his mother had illtreated
the wife and abused her despite the fact that
the wife was pregnant. Though it was admitted by the husband that after
17.4.2007 he never went to Akola to bring the wife to the matrimonial
home, he volunteered that attempts were made by him to secure her
company but there was no positive response from her. When a suggestion
was given to the husband in respect of his advice to the wife to abort the
child, the husband denied the same. The husband admitted in his crossexamination
that the wife was advised bedrest.
In respect of the other
allegations made by the husband in regard to the cruelty meted out by the
wife there was no crossexamination.
The evidence of the husband that the
wife argued with his mother and brother and was desirous of living
separately and away from the other members in the matrimonial home, has
gone unchallenged. The evidence of the husband that the wife left the
matrimonial home on a couple of occasions without any rhyme or reason
and without informing the husband has also gone unchallenged.
The wife has reiterated the facts pleaded by her in the
written statement, in her examinationinchief.
In the crossexamination,
the wife admitted that her motherinlaw
is an old lady and she was
residing in the matrimonial home along with her motherinlaw,
brotherin

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law and her husband. She denied the suggestion that she did not do
“Namaskar” or give respect to elders and prepare snacks and tea when the
relatives visited the matrimonial home. She also denied that she was not
willing to perform the household work. The wife denied the suggestion that
she left the matrimonial home on more than a couple of occasions without
informing anybody in the matrimonial home. She, however, admitted that
she went to the house of her uncle with her parents on 4.3.2007. She
admitted that her paternal uncle told her husband in the meeting of the
family members that the wife and the husband are capable of taking a
decision in regard to the wife’s health. The wife also admitted that in the
meeting she told the husband that she was not willing to reside in the joint
family and wanted to reside separately. She, however, volunteered that she
refused to reside in the matrimonial home as her motherinlaw
had told
her that the daughters did not belong to Yogesh and there was an
atmosphere of disharmony in the matrimonial house. The wife admitted
that there was an agreement between the parties on 16.9.2011, whereby
she had agreed to join the company of the husband, from the Court. It was
admitted by the wife that she was residing in the parental home after
leaving the matrimonial home with her parents, brother, his wife, daughter
and her daughters in a joint family. The wife also examined her father. The
father of the wife stated in his examinationinchief
that his daughter was
illtreated
by her inlaws.
It is stated by the father that he was ready to
send his daughter along with her husband for residing in the matrimonial

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home but the husband should make an arrangement for the separate
residence, wherein the husband and wife could live with their daughters.
The father of the wife admitted in his crossexamination
that he had not
personally seen the rented house arranged by the husband for the wife
after the terms were settled in the presence of the Mediator. It is admitted
by the father that he is not ready to send his daughter for cohabitation with
the husband in the same house where the husband is residing with his
brother and mother. It was denied by the father that he was unnecessarily
supporting the wife and helping her to impose the condition for separate
residence.
It is clear on the basis of the evidence tendered by the parties
and therefore, it is rightly recorded by the family Court on an appreciation
of the material on record that the wife had treated the husband with
cruelty. Apart from the oral evidence, the family Court had considered the
reply sent by the wife to the registered notice issued by the husband,
wherein the wife had categorically stated that she would join the company
of the husband only if he resides separately with her in a separate
accommodation and away from his family members. The reply by the wife
to the notice issued by the husband clearly falsifies the case of the wife that
she had not insisted that the husband and wife should reside in a separate
accommodation. The family Court has rightly recorded that within a short
span of less than three months of joint residence, the wife could not have
demanded separate residence. It was found by the family Court and rightly

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so that the wife was not willing to reside along with her motherinlaw
and
brotherinlaw.
The family Court held that it was difficult to accept that
within a short span of less than three months the wife was treated by her
motherinlaw
with such cruelty that it was not possible for her to reside
together with her inlaws
in the matrimonial home. The attitude and
conduct of the wife, as found by the family Court, was not proper as the
wife was seeking a separate residence immediately after the parties were
married. The parties had admittedly resided together only for a period of
two and half months as the marriage was solemnized on 13.12.2006 and
the wife finally left the company of the husband on 5.3.2007 never to
return to the matrimonial home. In the short spell the wife intermittently
left the company of the husband without informing anybody in the
matrimonial home for residing with her paternal uncle. The family Court
considered that before the family Court also the wife was continuously
demanding a separate accommodation for herself and her husband. The
word ‘cruelty’ though is not defined under the Act, the family Court rightly
held that in the circumstances of the case the wife had treated the husband
with cruelty. The husband was mentally tormented because of the acts of
the wife in the short span of less than three months. The wife had been
unsuccessful in proving that her motherinlaw
had treated her with such
cruelty that it was difficult for her to stay in the matrimonial home along
with her. On an appreciation of the material on record, the family Court
held that the quarrels between the motherinlaw
and the daughterinlaw

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were only a reflection of the ordinary wear and tear in the matrimonial life.
It is held in the unreported decisions of this Court in First Appeal
No.1253/2008 (Smt. Bhawna w/o Vijaykumar
Sakhare…Versus…Vijaykumar s/o Tarachand Sakhare) decided on
13.08.2012, First Appeal No.259/2012 (Rahul Pritamsingh
Chhabra…Versus…Smt. Shipra w/o Rahul Chhabra) decided on
28.07.2014 (Supra) and the decision of the Hon’ble Supreme Court
reported in AIR 2002 Supreme Court 88 (Supra) that the persistent
demand by the wife to stay away from the joint family in the matrimonial
home and reside separately with the husband itself would tantamount to
cruelty, if it is not proved by the wife that the wife was compelled to reside
in a separate residence. On an overall reading of the crossexamination
of
the wife, it is clear that the inlaws
of the wife had not treated her with
cruelty, as a result of which, she was required to demand separate
accommodation. The family Court observed that even during the course of
trial, on a number of occasions, the wife insisted for separate residence and
the attitude and conduct of the wife in insisting for a separate residence
when she had admittedly resided in the matrimonial home only for a
period of less than two and half months clearly shows that the wife treated
the husband with cruelty. On an appreciation of the evidence of the father
of the wife, it is clear that the father of the wife did not desire that his
daughter should live in the matrimonial home along with her inlaws.
In
his examinationinchief
he has clearly stated that he is ready to send his

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daughter in the matrimonial home provided the husband provides a
separate accommodation for the parties at a convenient place with proper
facilities. It would be pertinent to note that the father of the wife and the
wife were aware before the marriage that the husband was residing with
his mother and elder brother and that she would be required to reside in
the joint family in the matrimonial home. It is further pertinent to note that
the wife is residing in her parental home in a joint family since 6.3.2007
along with her parents, her brother, his wife, their children and also her
daughters. In the given set of facts when the wife had failed to prove that
her motherinlaw
had treated her with cruelty, the family Court rightly
held that the wife has treated the husband with cruelty by leaving the
matrimonial home without informing anybody, by demanding a separate
residence for the husband and herself and by making false and reckless
allegations against the members of the husband’s family without
substantiating them. On an overall view of the evidence, it is clear that the
wife had treated the husband with cruelty and the family Court has
therefore rightly answered the said issue in favour of the husband.
Though the family Court was justified in answering the
aforesaid issue in favour of the husband, the family Court was not justified
in dismissing the petition for a decree of divorce by resorting to the
provisions of Section 23 (1) (a) of the Act. Under Section 23 (1) (a) of the
Hindu Marriage Act, the family Court is not bound to grant a decree of
divorce to a party despite the existence of a ground for divorce, when the

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party seeking divorce is taking advantage of his or her own wrong or
disability for seeking the relief.
We do not find on a perusal of the evidence on record that
the husband was taking advantage of his own fault, wrong or disability for
the purpose of seeking the divorce. The wife had left the company of the
husband within a short period of about two and half months without any
rhyme or reason as observed by the family Court. With the help of the
Mediator, the parties had agreed to reside together in a separate
accommodation. According to the husband, as per his financial condition
he had arranged an accommodation in Mangle Wadi. The family Court
observed on the basis of evidence tendered by the wife’s witness Nilesh and
also the photographs that the accommodation arranged by the petitioner
was not proper. The family Court, while so observing did not consider the
evidence of the husband that he had arranged for the accommodation as
per his financial condition. The family Court erroneously gave much
weightage to the report of the Marriage Councillor that the husband was
not ready to reside with the wife and therefore, he had not secured a
suitable accommodation. The family Court erroneously relied on the
aforesaid facts to hold that the husband was taking advantage of his own
wrong by not complying with the terms of the settlement recorded in the
presence of the Mediator. In the circumstances of the case, it was not
necessary for the husband to secure a separate accommodation for himself
and his wife when the husband had clearly established on the basis of oral

15

and documentary evidence that the wife had treated him with cruelty. The
acts of cruelty on the part of the wife cannot be wiped out only because the
husband had not secured accommodation as per the desire of the wife after
the parties had executed the terms of settlement before the Mediator in the
year 2011. It is necessary to note that the wife has without any justifiable
cause left the company of the husband for more than a period of 7 to 8
years and the husband was entitled to a decree of divorce, in the
circumstances of the case, more so, when the family Court had answered
the issue in regard to cruelty in favour of the husband. The family Court
could not have held that there was no bona fide offer from the husband and
he was not ready to abide by the terms of the settlement executed before
the Mediator. Undue weightage has been given by the family Court to the
fact that the separate arrangement or accommodation was not suitable for
the wife and the husband. When the family Court had held that the acts on
the part of the wife in seeking separate accommodation tantamounted to
cruelty then the family Court could not have proceeded to hold that the
husband had not made any sincere efforts to arrange for the separate
accommodation. We find on a reading of the unreported decisions of this
Court in First Appeal No.1253/2008 (Smt. Bhawna w/o Vijaykumar
Sakhare…Versus…Vijaykumar s/o Tarachand Sakhare) decided on
13.08.2012, First Appeal No.259/2012 (Rahul Pritamsingh
Chhabra…Versus…Smt. Shipra w/o Rahul Chhabra) decided on
28.07.2014 (Supra) and the decision of the Hon’ble Supreme Court

16

reported in AIR 2002 Supreme Court 88 (Supra) that the demand by the
wife to seek separate residence amounts to cruelty when there is no
justifiable cause for seeking the same. In the instant case, the other
evidence tendered by the husband along with the evidence tendered by
him to prove that the wife was continuously pestering and demanding the
husband to stay away from his relatives will surely prove that the wife
treated the husband with cruelty. In the facts of the case, in our considered
view, the family Court has given undue weightage to the securing of an
alternate accommodation by the husband that was not satisfactory, for
refusing to grant a decree of divorce by resorting to the provisions of
Section 23 (1) (a) of the Act. On the basis of the evidence on record, it is
clear that the husband is entitled to a decree of divorce on the ground of
cruelty.
Hence, for the reasons aforesaid, the appeal is allowed. The
marriage between the appellanthusband
and the respondentwife
stands
dissolved by a decree of divorce under Section 13 (1) (ia)
of the Hindu
Marriage Act, 1955. In the circumstances, no costs.
JUDGE JUDGE
Wadkar