IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 128 OF 2005
V
versus
N
CORAM : A.S. Oka,
& G.S. Patel, JJ.
JUDGMENT PRONOUNCED ON : 3rd October 2013
JUDGMENT : (Per G.S. Patel, J.)
1. In keeping with the views we expressed in our judgment in
Family Court Appeal No. 29 of 2003,1 in this matter, too, we have
deliberately masked the names and identities of the parties so as to
protect their privacy.
2. On 4th February 2002, the Family Court at Pune dismissed
two petitions. One, P.A. 118 of 1998, was filed by the wife, N, for
restitution of conjugal rights. The other, P.A. 280 of 2001, was filed
by the husband, V, seeking divorce on the ground of cruelty under
Section 13(1)(ia) of the Hindu Marriage Act, 1955. Both parties
having filed separate appeals, these are decided together by this
common judgment.
3. V and N were married on 25th December 1996 in Pune by
Hindu Vedic rites and ceremonies. They have no children. V is the
youngest of three brothers. He serves in the Telecom Department in
Mumbai, where his family is based and where his brothers, too,
work. He lives with his parents in a one-room-kitchen flat in Kurla.
N is a clerk the Irrigation Department of the Government of
1 S v Y, decided on 23rd August 2013
2 of 14
Maharashtra. She and her family come from Pune. Her father is, or,
at the relevant time, was an auto-rickshaw driver in Pune. It seems
that before marriage, N agreed that she would seek and obtain a
transfer from Pune to Mumbai where she and V would live together.
This, as we shall see, was to become the pivotal determinant in their
marriage.
4. After marriage, N commuted between Mumbai and Pune on
weekends and holidays. This was evidently unviable. V and N
quarrelled about the infrequency and irregularity of her visits. The
marriage began to disintegrate. On 29th June 1997, the parties
separated. There are conflicting versions about the nature and
circumstances of this parting of ways, but that it did happen is not in
dispute. V filed a Petition for divorce in the Civil Court, Thane.
That court lacked territorial jurisdiction and V withdrew his
Petition. On 5th February 1998, N filed a Petition No. 118/98 before
the Family Court in Pune seeking restitution of conjugal rights. A
few months later, on 18th December 1998, V filed Petition No.
242/99 for divorce before the Family Court in Mumbai. N applied to
this Court for a transfer of V’s divorce Petition to the Pune Family
Court. At that time, V’s deposition was being taken in Mumbai.
This Court directed that his deposition be completed in Mumbai
and that his Petition be thereafter transferred to the Pune Family
Court. This was done. V’s Petition was renumbered as P.A.
No.280/2001 in the Family Court at Pune.
5. N’s pleadings in support of her case for restitution of conjugal
rights are that she constantly strived to maintain a balance between
her job and her marriage. Immediately after marriage in December
1996, she took an extended leave from her job till January 1997. In
that time, she lived with V in Mumbai. She then returned to Pune
where she worked and thereafter travelled to Mumbai to be with V
whenever she had leave. In February and March 1997, V went with
her to Pune. In March 1997, she stayed with V in Mumbai for an
entire week. She says that though this rhythm was a strain, she
coped as best she could, and was a devoted, affectionate and loyal
spouse. V was, she says, unappreciative of her struggle. He
criticized her constantly. In April and May 1997, she was unwell.
She had an abortion. She told V about this, but he did not care to
visit her. In May 1997, V came to see her at her office in Pune, and
quarrelled with her. They returned to Mumbai and stayed there for a
week, making a trip to Nasik to attend V’s friend’s wedding in that
time, and then went on a short holiday. She confirms that the couple
agreed that she would try and get herself transferred to Mumbai and
that, in the interregnum, she would visit Mumbai as often as she
could. She says that she attempted this, but a job transfers is not
easy, and is not within her control. Between June and October 1997,
she tried to visit and call V in Mumbai, but he remained elusive. In
October 1997, when she visited Mumbai, she found the matrimonial
home locked; she was not told of this. She claims that there is
nothing amiss with the marriage; that she is ready to live with V at a
place of his choosing; and that she suspects that others have
prejudiced him against her. She therefore claims to be entitled to a
decree for restitution of conjugal rights. This is not only her petition
but is also, in substance, her defence to V’s divorce petition.
6. V’s case on ‘cruelty’ by N is that contrary to the pre-nuptial
understanding between the parties, N did not apply for a transfer to
Mumbai from Pune, but instead insisted that V move to Pune and
set up home with her there. He does not dispute that N had an
abortion, but says he was informed of this only after the fact. N is,
he says, a quarrelsome and disagreeable person; there was constant
bickering with him and his parents over trivial matters. In June 1997,
N left the matrimonial home with all her belongings and returned to
Pune. He went to see her there a few days later, but was confronted
with demands that he shift to Pune himself, her parents even
threatening him. Though they did travel to Nashik to attend his
friend’s wedding, N continued to demand that he move to Pune.
When she came to Mumbai in June 1997, she did so without telling
him in advance; he was visiting his brother in Thane at the time. She
called him, but only to say that she was leaving, taking her
belongings with her. He says her conduct constitutes cruelty, and
therefore seeks a divorce.
7. This is also his response to her petition for restitution of
conjugal rights, but with some significant differences. For instance,
though he says in his divorce petition that N was pregnant and had
an abortion, in his Written Statement to her petition for restitution
of conjugal rights, he claims that the marriage was never
consummated. He says he was told by others that she had, and
continued to have, an extra-marital relationship with someone else.
8. These are the pleadings on which issues were struck. Both
parties led evidence. They examined themselves, and each also led
the evidence of their respective fathers.
9. At the heart of this discord is the matter of N continuing to
work and live in Pune and shuttling between Pune and Mumbai, and
of her applying for a transfer to Mumbai. That everyone knew that
N had a job in Pune is not disputed. V deposed that there a prenuptial
understanding that N would obtain a transfer to Mumbai,
where she would then live with V in the matrimonial home.2 Despite
this, when asked, she said she had not even applied for a transfer.
This was a few months after their marriage in February 1997.3 She
asked him instead to move to Pune himself. He declined, saying that
he could not uproot his parents. This conversation was repeated in
June 1997, both sides sticking to their positions.4 V was crossexamined
on this aspect of the matter. That cross-examination does
not assist N, for V says:5
“17. I am not aware as to what efforts respondent has
taken in getting transfer to Bombay. When I tried to find
out procedure of transfer from the Respondent she did not
inform me about the same. When I offered to make efforts
for the transfer, Respondent did not accept the same and
told me that she would try to get her transfer.”
2 Examination-in-chief of V, para 1.
3 Examination-in-chief of V, para 2.
4 Examination-in-chief of V, paras 5 and 6.
5 Cross-examination of V, para 17
10. That there was in fact a pre-nuptial understanding that N
would get a transfer to Mumbai is something that she admits in her
own examination-in-chief. She says that when the marriage was
arranged, V and his family knew that she had a job in Pune. Then
comes this testimony:6
“At that time it was decided that after marriage I should
get transfer to Mumbai as per rules of the Government.”
In cross-examination, too, N’s testimony is unequivocal:7
“6. ... It is true that at the time of settlement of
marriage I was fully aware that I will have to reside in
Mumbai. It is true that prime condition of [V] at the
settlement of the marriage was that after marriage I
should get my transfer to Mumbai. At the time of
settlement I have idea to them that period of about one
year would be required for my transfer from Pune to
Mumbai. I have not yet filed application for my transfer
from Pune to Mumbai.”
{Emphasis supplied}
We need to note here that the last line, emphasized above, is missing
in the typed copy of the R&P, but before us Learned Counsel for the
parties both agreed that the original record did in fact have that line.
11. The evidence of V’s father, too, makes it clear that the only
complaint against N was that she did not get a transfer to Mumbai.
He says the family will accept nothing less than her giving up her
job.8 This is also V’s own testimony.9
6 Examination-in-chief of N, para 1
7 Cross-examination of N, para 6
8 Cross-examination of PW2, V’s father, para 9
9 Cross-examination of V, unnumbered para at page 109 of the R&P.
12. This much is clear: before the marriage, it was agreed that N
would seek a transfer to Mumbai.10 She did not do so. She assigns no
reasons for this. Whether or not this constitutes ‘cruelty’ within the
meaning of the law, and whether this is sufficient to defeat N’s case
for restitution of conjugal rights are the questions we must consider.
Both Ms Mutalik, Learned Counsel for V, and Mr. Shastry, Learned
Counsel for N, treated these issues of N’s transfer, and her failure to
apply for it, as determinative of the final outcome in both petitions.
N’s claim for restitution of conjugal rights necessarily requires that
an affirmative finding be returned that V withdrew himself from her
company without just and reasonable cause. She founds this claim
on the basis of what is, to all intents and purposes, allegations of V’s
being indifferent towards her; of not being in the matrimonial home
when she visited; and of not returning her calls. As to the specifics,
V’s evidence is that he does not know who paid for the abortion, and
that he did not enquire;11 and admits that he did not give her any
gifts.12 But this is not evidence of V’s withdrawal from N’s society.
There seems very little doubt that whenever they were together —
travelling to Nasik or Pune, or spending time together in Mumbai —
the couple lived as man and wife.13 In his reply to N’s petition for
restitution of conjugal rights, V makes an allegation that the
marriage was not consummated. This is unsupported by his
testimony and is directly contrary to his own petition for divorce, in
10 All witnesses accept this in terms, including N’s father (crossexamination
at para 3)
11 Cross-examination of V, unnumbred para at p. 103 the R&P.
12 Cross-examination of V, para 14.
13 Cross-examination of V, para 18
which he admits that he knew she was pregnant and that the two had
had conjugal relations.14 There is, too, the matter of N’s admission
in cross-examination that at the time when the marriage was
arranged, she was told that she would have to live in Mumbai and,
for that purpose, seek a transfer from Pune; and that she agreed to
this.15 The physical separation between the two was a matter known
in advance. V cannot be said to have ‘withdrawn’ himself from N’s
company and society only on this account. N’s case that V was not
present in Mumbai on one weekend when she visited is an isolated
instance, not a course of conduct that could be said to constitute a
withdrawal by him from her society sufficient to support a petition
for restitution of conjugal rights. There is, therefore, no evidence at
all to support N’s case that V withdrew himself from her society
without just or reasonable cause. Once that is not established, N’s
petition for restitution of conjugal rights must fail, and the Learned
Single Judge in the Trial Court rightly dismissed it.
13. But the Trial Court also dismissed V’s Petition for divorce on
the grounds of cruelty. It seems to have been persuaded to arrive at
this conclusion largely on account of V’s pleadings that he had been
told by others, whom he did not examine, that N had an extramarital
affair. The Trial Court found these pleadings scurrilous.
Certainly they are unsupported by the slightest shred of evidence.
The Trial Court decried the very making of these allegations and, in
our view, rightly. These are allegations conceived in anger and
14 Cross-examination of V, para 17.
15 Cross-examination of N, para 6.
delivered malice. They are baseless, as is V’s attempt in pleadings to
claim that the marriage was never consummated, an allegation later
defeated by his own testimony.16
14. What precisely is the nature of V’s case on cruelty? It rests on
a single circumstance, viz., N’s failure and refusal to abide by her
commitment to seek a job transfer to Mumbai where she could be
with V in the matrimonial home. We have already noted that this is a
matter that N admits in her evidence, though not in her pleadings. Is
this admission fatal to N’s defence to the divorce petition, as Mrs.
Mutalik would have us hold? Does it fall within the legal definition
of ‘cruelty’ as a matrimonial wrong? Mrs. Mutalik asks that we see
this not as a mere omission or oversight in performing a routine task
or act, but about a deliberate and wanton refusal to abide by a
solemn commitment given well before marriage. Mrs. Mutalik says
that N’s refusal is indicative of a course of conduct, an approach to
the marriage and speaks to her complete disregard and lack of
concern for the marriage.
15. We must disagree. Underlying Mrs. Mutalik’s submissions is
the hypothesis that it is the bounden duty of a wife, as a legal
obligation, to extirpate herself from her settled life and job to follow
her husband. Her needs, wishes and desires must be relegated to
second place, suborned to the husband’s personal and family needs.
Her identity, as it were, is only as a wife, not as an independent
woman with her own job and earning. It was, therefore, N’s duty
16 ibid
and obligation to move to Mumbai. We cannot accept a submission
based, even implicitly, on such premises. This is a thoroughly
retrograde view, one that undermines a fundamental premise of
parity and equality in marriage.
16. Cruelty as a matrimonial wrong, the Supreme Court has held,
has an inseparable nexus with human conduct. The social strata or
milieu to which the parties belong, their chosen way of life,
respective temperaments and emotions, are all factors that must be
weighed while assessing the act of ‘cruelty’ alleged in support of a
petition for divorce.17 To find for the husband, we must have
evidence of a course of conduct beyond the ordinary trials and
tribulations of any marriage, something of sufficient gravity and
weight. This conduct need not be physical. A consistent pattern of
indifference or neglect would, in a given case, suffice.18 Mrs.
Mutalik submits that this is just such a case, and that N’s conduct
shows precisely this level of indifference or neglect on her part.
17. We are not of a mind to accept this submission. N has not
denied that there was such a pre-nuptial understanding. She also
does not prevaricate about her failure to apply for a transfer. She
does say that such matters take time, and are never assured. Her
evidence appears to us to be straightforward and honest. Why she
did not apply for a transfer is a matter of speculation, not evidence.
There is nothing to indicate that this failure on her part, if it can be
called that, stemmed from any sense of disgruntlement with her
17 Vishwanath Agrawal v Sarla Vishwanath Agrawal, (2012) 7 SCC 288
18 Manisha Tyagi v Deepak Kumar, (2010) 4 SCC 339
marriage or her husband. To term this as cruelty would, in our view,
be wholly unreasonable. There is nothing in law that supports such a
view.
18. We are far less impressed by V’s pleadings and testimony. As
the Trial Court points out, that he should even consider stooping to
making allegation of infidelity against N, and, too, claiming that the
marriage was never consummated when his own evidence is to the
contrary reflects far more poorly on him than on her.19 There is, too,
the evidence of his manifest indifference: not caring about her
health when she suffered an abortion, his lack of knowledge about
who paid for those expenses, his admission that he did not even
offer to bear those costs, and more.20 On her part, she seems to have
struggled to maintain a life-work balance, shuttling between Pune
and Mumbai at every opportunity, taking time off to travel with V
and be with him whenever she could. In support her petition for
restitution of conjugal rights, she deposed that she would apply for a
transfer, but not give up her job.21 This was in 2004. Even as late as
this, and though it cannot shore up her claim for restitution of
conjugal rights, the evidence indicates her willingness to continue
with the marriage. To say, therefore, that there was cruelty on her
part is, in our view, entirely incorrect. The Trial Court was,
therefore, justified in dismissing V’s petition for divorce as well. We
have no hesitation in upholding the Trial Court’s dismissal of V’s
divorce petition as well.
19 Cross-examination of V, unnumbred para at p. 106 of the R&P.
20 Cross-examination of V, para 18 at pp. 102–103 of the R&P.
21 Examination-in-chief of N, para 5.
19. The result is unfortunate. The parties have been apart now
for some 16 years. We are told that V has re-married during the
pendency of these appeals. That is something he could not have
done, and throws into jeopardy yet another life; yet, it is of his
making.
20. Faced with this, Mrs. Mutalik urges us to follow the decisions
of the Supreme Court in exercise an inherent power, ex debito
justitiae, and dissolve the marriage on the grounds that it has
irretrievably broken down following the decisions of the Supreme
Court in Naveen Kohil v Neelu Kohli22 and Durga Prasanna Tripathi v
Arundhati Tripathy23 Regrettable though it may be, we cannot do so.
As a first Appellate Court, we are not vested with plenary
jurisdiction. We must decide, and decide only, within the
parameters of what the statute permits. The statute does not permit
a court to dissolve a marriage on account of its irretrievable
breakdown. This may be done by the Supreme Court in exercise of
its powers and jurisdiction under Article 142 of the Constitution of
India, but that is a jurisdiction exclusively vested in the Supreme
Court.24 If V’s actions or conduct caused the irretrievable
breakdown of the marriage, then he cannot be allowed to seek
dissolution on that ground.25 Indeed, the Supreme Court itself has
recently held that “irretrievable breakdown of marriage” is not a
22 (2006) 4 SCC 558
23 (2005) 7 SCC 353
24 Anil Kumar Jain v Maya Jain, (2009) 10 SCC 415; Manish Goel v Rohini
Goel, (2010) 4 SCC 393
25 Neelam Kumar v Dayarani, (2010) 13 SCC 298
ground for divorce under the Hindu Marriage Act. It is a weighty
circumstance, but one of many, that the court will take into account
in deciding whether or not to order a severance of the marital tie;
but this, too, is a power that only the Supreme Court can properly
exercise under Article 142 of the Constitution of India.26
21. Both appeals are dismissed. There will be no order as to costs.
(G.S. Patel, J.) (A.S.Oka, J.)
26 K. Srinivas Rao v D.A. Deepa, (2013) 5 SCC 226
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