- In Mohit Preet Kapoor vs Sumit Kapoor the Hon’ble Allahabad HC has held that the wife frequently visiting her parents house without taking the consent of her husband and other family members can neither amount to cruelty nor desertion.
- The instant appeal was filed by the wife challenging the judgement and order passed by the Family Court, Bareilly under section 13 of the Hindu Marriage Act, granting the decree of divorce in favour of the husband.
- The parties in the instant case had married in December of 2013. In July of 2017, the husband had filed for divorce stating that his wife had left the matrimonial home in January of 2015 without any cogent reason, in his absence, with her family members.
- It was also alleged that in January 2017, she refused to accompany the respondent to her matrimonial home. It was also alleged that the appellant herein had refused to do the household work and misbehaved with the members of the family. She would go to her parental home or to her relatives without informing the respondent or his family members. She had also filed various matrimonial cases against the respondent.
- The appellant wife, on the other hand, alleged that she alongwith her daughter were thrown out of her matrimonial home by the respondent in July of 2016, and he had not brought any legal action with a view to claim the restitution of conjugal rights.
- At the outset, the Court observed that the act of the wife leaving her home to go to her parental house, which was barely 400 mtrs away, cannot be termed as desertion. She was pregnant at the time, and might have gone to her parents house for sometime, and not permanently.
- The Court relied on the judgement of the Apex Court in Savitri Pandey vs Prem Chandra Pandey (2002) SCC wherein it was held that desertion means the intentional permanent forsaking and abandonment of one spouse by the other without the other’s consent, and without reasonable cause.
- The Court also went on to observe that the respondent husband or his counsel never participated in the proceedings of maintenance instituted under section 24 of HMA, and did not even seem willing to take care of his own minor daughter. The Court observed that it looked like he had deserted his wife and was shying away from responsibility, as a father, towards his minor daughter.
- Regarding the ground of cruelty, the Court observed that the act of the appellant visiting her parental house without the consent of the respondent does not amount to cruelty. The fact that the appellant was admitted to the hospital by the respondent at the time of delivery, or that he had borne expenses of their daughter’s treatment does not go against the appellant, rather it shows that she never intended to leave her husband permanently, and had never done any act which would deprive the respondent from the pleasures of fatherhood.
- Thus, the appeal was allowed and the judgement and order of the Family Court was set aside, and the HC directed the respondent to pay Rs. 30,000/- per month towards the maintenance of his daughter.
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