"If one spouse — by his or her words — compels the other side to leave the matrimonial home or stay away without reasonable cause, the former will be guilty of desertion, though it is the latter who has seemingly separated from the other," said the court, adding, "The ejection of the other spouse from the home with the intention not to cohabit equally constitutes desertion. This is the principle of constructive desertion."

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
FAMILY COURT APPEAL NO.204 OF 2007
Mrs. X : Appellant
Vs.
Mr. Y : Respondent
...
Mr. M. P. Vashi with Ms. Prachi Khandke i/b M. P. Vashi & Associates for
Appellant.
Mr. Vivek Kantawala for Respondent.
CORAM: S. A. BOBDE &
S. J. KATHAWALLA, JJ.
DATED: DECEMBER 02, 2009.
ORAL JUDGMENT (Per S. A. Bobde, J.)
1. 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 – 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/-.
The 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.
She returned the next day and lodged a criminal complaint against him for
harassment, 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.
2. 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
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for a period of 18 years. Having considered the evidence on record, the Learned
Family Court has decreed the petition for divorce both on the ground of cruelty
and desertion.
3. We have heard the Learned Counsel for both parties and also perused the
evidence before us. We find that the evidence is insufficient to grant a decree of
divorce on the ground of cruelty. As defined by the Hon’ble Apex Court in
Dastane v. Dastane [(1975) 2 SCC 326] and reiterated in several decisions
thereafter:
“The enquiry has to be whether the conduct charged as cruelty is of
such character as to cause in the mind of the petitioner, a reasonable
apprehension that it will be harmful or injurious for him to live with the
respondent...”
As opined by a Full Bench of this Court in Keshaorao v. Nisha [AIR 1984
Bom 413 (FB)]], the ‘cruelty’ contemplated is a conduct of such type that the
affected party cannot be reasonably expected to live with the other party. Each
case is to be decided on its own merits. At the same time, we bear in mind the
caveat laid down by the Hon’ble Apex Court in Savitri Pandey v. Prem
Chandra Pandey [AIR 2002 SC 591], that there is a difference between cruelty
and the ordinary wear and tear of married life. Petty quarrels and troubles, caused
by differences in the temperament of the parties cannot be cruelty. Notably, in the
4
case of J. L. Nanda v. Veena Nanda [AIR 1988 SC 407], the Hon’ble Apex
Court held that it is not cruelty if petty quarrels result because the temperament of
spouses is not conducive to each other, even if these quarrels might result in
physical or mental ailments. The Madhya Pradesh High Court too, in the case of
Indira Gangele v. Shailendra Kumar Gangele [AIR 1993 MP 59] held that the
unruly temper or whimsical nature of a spouse is not sufficient to establish
cruelty. We examine the present facts in the light of these legal principles. The
respondent deposed before the Learned Trial Court that the appellant used to lose
her temper on trivial matters, which was insulting and humiliating for him, as a
result of which he could not sleep peacefully, and this in turn disturbed his work.
We find that this is a temperamental problem, which the appellant may have had
and by itself is insufficient to establish cruelty towards the respondent,
particularly in the absence of any specific instances from which it could have been
inferred that this temperamental flaw was so disturbing, that it would constitute
cruelty towards the respondent in itself.
4. We now proceed to the contention of desertion of the respondent by the appellant.
Section 13 (1) (ib) of the Hindu Marriage Act, provides that a decree of divorce
may be granted on the ground that the other party has deserted the petitioner for a
continuous period of not less than two years immediately preceding the
presentation of the petition. The Explanation to the section reads as follows:
5
“Explanation – In this sub-section, the expression “desertion” means
the desertion of the petitioner by the other party to the marriage
without reasonable cause and without the consent or against the wish
of such party, and includes the wilful neglect of the petitioner by the
other party to the marriage, and its grammatical variations and
cognate expressions shall be construed accordingly.”
As has been laid down in several cases, including the landmark case of
Bipinchandra Jaisinghbhai Shah v. Prabhavati [AIR 1957 SC 176], the
question of desertion is a matter of inference to be drawn from the facts and
circumstances of each case. Both factum of physical separation and animus
deserendi i.e. the intention to end cohabitation, must be proved to establish
desertion. Moreover, as laid down in the aforementioned Explanation, there must
be absence of consent of the other party and absence of conduct giving
reasonable cause to the spouse leaving the matrimonial home to form the
intention to leave. Importantly, Bipinchandra’s case [supra], among others, has
made it clear that it is not necessary for the deserting spouse to leave the home in
order to constitute desertion. If one spouse by his or her words compels the other
side to leave the matrimonial home or stay away therefrom, without reasonable
cause, the former would be guilty of desertion, though it is the latter who is
seemingly separated from the other. The ejection of the other spouse from the
6
home with the intention not to cohabit equally constitutes desertion. This is the
principle of ‘Constructive Desertion.’
5. In the present case, we find that the respondent has established and in fact, the
appellant has not denied, that she did not allow the respondent to cohabit with her
at the house in Surat, when he visited on 12th January 1997. She threw him out of
the very house, which he had rented for her to live in, and threatened him with dire
consequences if he dared to enter. This incident occurred over and above the fact
that she herself had refused to travel and reside with him at Valsad, after he was
posted there on 1st August 1996, ostensibly because she was teaching and giving
tuitions at the time in Surat. The Learned Family Court has observed that there is
no challenge by the appellant to the evidence of the respondent that she was not
interested in cohabiting with him at Valsad. In any case, we find that merely
because the respondent had moved to Valsad, due to his transfer, it cannot be
considered to be reasonable cause for the appellant refusing to cohabit with him
when he visited her in Surat, and in fact constitutes wilful neglect on her part. Her
conduct on the whole, is evidence of animus deserdendi. The incident at Surat
clearly compelled the respondent to leave and stay away from the matrimonial
home. There is no dispute as to the factum of separation i.e. that the parties did not
reside together from the date of the incident at Surat i.e. 12th January 1997, until
this petition was presented on 8th October 2003 and thereafter.
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6. At this stage, we may note that the Learned Family Court has not passed any
orders as regards maintenance, as no prayer for such orders was made by the
appellant. However, Mr. Vashi, the learned advocate for the appellant has
submitted that the appellant has preferred an application for maintenance before
this Court. It would be proper if this application is heard and decided by the
Family Court itself. Accordingly, the learned advocate for the appellant seeks
leave to withdraw the application and present it, in accordance with the law,
before the Family Court. The said application is allowed to be withdrawn.
7. In the result, the divorce decree is upheld under section 13 (1) (ib) against the
appellant on the ground of desertion. The appeal is hence dismissed. No order as
to costs.
8. At this stage, the learned advocate for the appellant seeks a stay of this order to
enable the appellant to approach the Hon’ble Supreme Court. We see no reason to
grant such a prayer. However, we consider it appropriate to continue with the
injunction, already passed against the respondent pending final decision of this
appeal, which restrains him from remarrying, for a period of eight weeks from
today.
Order Accordingly.
(S. A. BOBDE, J.)
(S. J. KATHAWALLA, J