Recent Case Law on Grounds of Divorce under HMA(Desertion and Cruelty),PUNDLIK MARTANDRAO YEVATKAR V.S SUBHANGI PUNDLIK YEVATKAR

 PUNDLIK MARTANDRAO YEVATKAR V.S SUBHANGI PUNDLIK YEVATKAR

CASE LAW Based on CRUELTY and Desertion as a Ground for Divorce under Sec 13 1(i-a) and (i-b) Of The Hindu Marriage Act,1955.

FACTS

• The marriage of the Appellant/Husband and Respondent/Wife was solemnized as per Hindu Rights and Religion in District Amravati.
• After the marriage both the appellant and the respondent were living together at the appellant’s house at Buldana..
• The appellant/husband was serving as an Assistant Teacher at M.E.S. High School, Mehkar at the relevant time and was shuttling between Mehkar and Buldana.
• The respondent/wife is also qualified and completed her post-graduation and was desiring to do a teacher’s job.
• After marriage, for a period of four months they resided together at Buldana. As per the contention of the appellant/husband that as per desire of the respondent/wife he was searching a suitable job of Teacher for her.
• However, she was harassing him for searching Teacher’s job and was also threatening that she would not beget a child, till she secures a job. 
•  In the meantime, the respondent/wife delivered a male child on 14Z06/2002 at her maternal place. After spending of three months at maternal house after delivery she resumed cohabitation at the house of the appellant/husband.
• As per the contention of the appellant/husband, after birth of the child again she started harassing him on the count that she wants to start her tuition classes at Mehkar.
• Though they had shifted to Mehkar, the respondent/wife had not started tuition classes by assigning reason that her son is infant and she has to look after him. 
• The appellant/husband  and the respondent/wife due to summer vacation shifted to Buldana and stayed there for two months.
• In the month of July, 2003 as the father of the respondent/wife was not well, she went at her parents’ house and returned back on 16/07/2003.
• They again shifted to Mehkar on 20/07/2003 and stayed there till May, 2004. Due to summer vacation in May, 2004 the appellant/husband and the respondent/wife came at Buldana
• At the relevant time, the respondent/wife was four weeks pregnant, but she was not ready to carry her pregnancy and insisted for terminating the pregnancy.
• The  appellant/husband  was  not  ready for the same and tried to convince her but the respondent/wife was not in a position to listen anything.
• Therefore, the appellant/husband  had informed her mother .  As per the communication  with  the mother of the respondent/wife, she told him to send the respondent/wife at her parental house and assured  him  that  they will take care of everything and he should not worry.
• It is alleged by the appellant/husband that before proceeding towards parental house the respondent/wife quarreled with him, collected all her belongings  and went at her maternal house along with son. 
•  After reaching at her maternal house, the respondent/wife had not contacted  him  and whenever the appellant/husband had tried to contact, she had not responded.
• The appellant/husband called her on 07/06/2004 and requested to come at Buldana by or before I4/06/2004 as there was birthday of son Tejas but the respondentZwife did not turned up nor communicated with the appellant/husband.
• The respondent/wife on 10/07/2004 by telephonic communication called him at her maternal place to fetch her back. Accordingly, he visited her maternal  house but the respondent/wife asked him to obtain  the  permission  of  her father.
• On communication with the father, the father of the respondent/wife refused to send her along with him, therefore, the appellant/husband constrained to return back alone.
• As per the contention of the appellant/husband thereafter by telephonic communication as well as by issuing some letters, he requested the respondent/wife to resume cohabitation. After receipt of the letter also the respondent/wife did not turn up to resume cohabitation.
• The appellant/husband had visited her maternal house on 07/05/2006 but her father did not allow her to join  his company by resuming cohabitation and threatened  him.  Again  he had visited at her parental house on 09/10/2012 along with his friends Ashok Pundalikrao Tidke and Shriram Ghongade to fetch her back but she did not turn up and not shown her willingness  to  resume cohabitation.
• In the meantime, the respondent/wife secured employment as an Assistant Teacher in Ashram Shala at Bahiram and son Tejas was also admitted in the School at Anjangaon Surji.
• It is the contention of the appellant/husband that as the respondent/wife had not returned back and treated him with cruelty and deserted him without sufficient reason, therefore, he constrained to file Hindu Marriage Petition No.52/2013 in the Court of Civil Judge, Senior Division, Buldana which was subsequently transferred to the Family Court, Buldana as A-Petition No.04/2018.

ARGUEMENTS

• Appellant/husband alleged that the respondent/wife treated him with cruelty and without sufficient reason withdrawn herself from the company of the appellant/husband, therefore, he filed a petition for dissolution of marriage on the ground of cruelty and desertion.
• In response to the notice, the respondent/wife appeared and opposed the appeal. She denied  all averments  and allegations.  As per her contention, after marriage she resumed cohabitation with the appellant/husband at Buldana but she was not treated well by the appellant/husband as well as her in-laws and sisters of the appellant/husband.
• She alleged that after her delivery neither the petitioner nor his family members turned up to see her and newly born child. As per her contention, since 2004 the differences started between her and the appellant/husband due to which she was constrained to stay at her parental house.
• She further said that her husband had  not  made  any provision for her and her son’s livelihood. Therefore, she secured employment in Ashram Shala at village Bahiram in order to maintain her and her son.
• She further alleged that the appellant/husband  and  his sisters were suspecting her character and, therefore, she constrained to leave matrimonial house
• She denied that the appellant/husband had taken several efforts to fetch her back for cohabitation. 
• Her contention is that as she was constrained to leave the matrimonial house she preferred the petition for restitution of conjugal rights in the Court of Civil Judge, Senior Division, Achalpur which was subsequently transferred to the Family Coun, Buldana bearing No.15/2018. 

JUDGEMENT 1

• The learned Family Court  recorded  the  evidence in both the petitions and after hearing both the sides pleased to dismiss the petition filed by the appellant/husband for dissolution of marriage.
• The petition for dissolution of marriage was dismissed by assigning reason that cruelty and desertion on the part of the respondent/wife not proved and allowed the petition of the respondent/wife of a restitution of conjugal rights.

ISSUES

1. Whether the petition for dissolution of marriage is liable to be allowed on the ground of cruelty as pleaded in  the petition?
2. Whether the appellant/husband proves that the respondent/wife intentionally abandoned him without a reasonable cause?
3. Whether the judgment and decree of the restitution of conjugal rights passed by the trial Court and dismissal of the divorce petition calls for any interference?

ARGUMENTS 2

• The appellant in this case had said that the respondent had terminated her pregnancy when she was 4weeks pregnant but no evidence is adduced to that effect. The respondent had delivered a male child. When she delivered a male child it is sufficient to show that she had already accepted the motherhood but the second pregnancy was terminated in her sickness. She had narrated about the same.
• Also The appellant had stated that the respondent had left his house without any reasonable ground just for the shake of fulfilling her wish but the evidence of the respondent shows that the appellant and his  sisters  suspected  her  character. When any woman’s character is suspected there is obviously a reason for her not to stay along with such person who suspects her character. It is not the case that she left the house to fulfill her wishes.
• Admittedly, at the time of leaving the house she was not having any job but she left the house due to the ill treatment at the house of the appellant and, therefore, her father refused to send her  back. She had shown her willingness to join cohabitation but due to the allegations regarding her chastity she had not resumed  cohabitation

FINAL JUDGEMENT

• Being aggrieved by the decision of the family court,Budlana.The appellant further went to higher courts also but the judgement was same after hearing everything from both the parties.
• ‘Desertion’ means the intentional, permanent forsaking and abandonment of one spouse by the other without the other’s consent and without reasonable cause. Desertion means withdrawing from the matrimonial obligations.
• To constitute desertion two essential conditions must be established  (1) the factum of separation,  and  (2)  the intention to bring cohabitation permanently to an end {animus deserendi).
• He had no evidence to show that he went to fetch back his wife after she left his house.Also the reason why she left his house was because appellant and her sisters were doubting her character and She had terminated her pregnancy due to illness.So the divorce was not granted on the basis of Desertion and Cruelty under sec 13 (1) (ia) and (ib)