Rejection of divorce case on ground of pregnancy of wife during proceeding

Bombay High Court: Disposing of an appeal, a division bench of Hon’ble Naresh H. Patil and Hon’ble F. M. Reis, JJ held that the lower court cannot dismiss a divorce suit filed by a woman on the grounds that she had conceived during the pendency of the proceedings, if she claims that ill treatment by her husband continues even after the child is born. The Court restored the divorce petition which had been rejected by the Civil Judge Senior Division (CJSD) and allowed the woman to proceed with the suit.

In the present case, the appellant- wife had approached CSJD in the year 2000 for separation from her husband on grounds of cruelty. The CSJD had made attempts at amicable settlement of the matter. In 2004, the respondent-husband filed an application to dismiss the case as the couple was residing together; this was opposed by the wife as she claimed that he continued to treat her badly and did not give her any financial assistance. But the CJSD dismissed her case stating that the cause of action for divorce did not survive as the third child was born during the pendency of the petition. Aggrieved by this order, the woman filed an appeal in the High Court. The Court held that the judge was not justified to dismiss the matrimonial petition as the appellant desired to proceed with the petition claiming that the cause of action still survives. [Brigida De Souza vs. Julino De Souza, First Appeal No. 271 0f 2006, decided on 23rd October, 2013]

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