MUMBAI:
A wife demanding a separate residence does not amount to cruelty, ruled the Bombay high court while setting aside a divorce granted by a family court to a resident of Saki Naka.
A division bench of Justice A M Khanwilkar and Justice Mridula Bhatkar was hearing an appeal filed by a woman challenging the family court's March 11, 1997 decree allowing her husband's plea for divorce on the grounds of cruelty as she had demanded a home separate from her in-laws' and filed a dowry case in an Andhra Pradesh court against five members of his family compelling them to travel.
"Demand for a separate residence by a wife itself is not a cruelty. A wife may have her views/dreams to set her matrimonial home in a particular way. To speak out of such an idea of a separate residence, it cannot be taken in hostility and cannot be labelled as cruelty," Justice Bhatkar dictated the order for the bench. The judges added that it would have been different had the woman insisted and compelled her husband to bow to her demand. "Such evidence is lacking here," they wrote in the order passed on August 1. They added that in matrimonial companionship, difference of opinion "was bound to be present and expected to be tolerated". So, seeking a separate home, per se, was not a cruel behaviour under Section 13 (1) (ia) (cruelty) Hindu Marriage Act, they said.
The couple got married at Adoni in Andhra Pradesh in March 1993 following which they moved to Mumbai where the man works as a bus conductor. They stayed with the man's parents, his widowed sister and the sister's two children. The man claimed that after a month, disharmony crept into their marriage as his wife wanted to move to another house and he could not afford it. Within two months, she returned to her parents' place, he added.
In January 1994, she filed two cases—one demanding maintenance and another alleging dowry torture—against her husband and his family. As the husband, along with his family, was compelled to go to Adoni, he filed a divorce petition in Mumbai on the grounds of cruelty. The wife challenged the petition saying she was constrained to go to her parents' home due to constant demands of money that her father could not fulfill.She stated that though she requested,she was not taken back.
In HC, the judges said "cumulative effect and tenor of evidence" showed that the husband had agreed with his family's demand of Rs 40,000 if his wife wanted to return. The wife's evidence appeared "true and natural" and the demand of a separate home and desertion was not proved by the husband, the court said.
