Marriage is a social bond that provides legal and social ratification and recognition to the relationship of two individuals and bestows on both the spouses, rights, and duties related to the conjugal life. The Hindu Marriage Act, 1955 has often come to the rescue whenever there have been questions or conjectures among couples regarding their marital relationship. This case questions the nature of the term “restitution of conjugal rights” under the Hindu Marriage Act, 1955. This case shows how the valuable interpretation of the Hon’ble Bombay High Court, in a case of an appeal against the Family Court, throws light on terms like “cruelty” and “desertion” in marriage.
A couple in Bombay had been in a courtship for eight years after which they got married on 5th January 2004. In 2003, the husband, an engineer moved to Canada for better prospects in his career and acquired Canadian citizenship. His wife followed him there on a spouse visa. In 2009, the man met with an accident after which his wife nursed him back to health. However, following this incident, there was a recession, due to which the man lost his job. He also started suffering from back and shoulder pain and rashes on his body called “ragweed allergy”, according to the man. After this, he decided to return to India and his wife followed him. The couple also had a child. However, after a month, the wife went back to Canada with their son, to live with her parents. The husband summoned her back but she did not come. He also went to the Hon’ble family court and filed a case for restitution of conjugal rights. The wife failed to appear for the hearings therein. The divorce appeal of the husband in the family court was also dismissed as ex-party as the bench found his claims to be quite vague.
The case had been filed under charges as per sections 13(1)(ia): cruelty and 13(1)(ib): desertion of the Hindu Marriage Act, 1955 in the Hon’ble Bombay High Court as an appeal against the order of the family court.
Observation by the court:
The Hon’ble division bench comprising Hon’ble Justice Ujjwal Bhuyaan and Hon’ble Justice Prithviraj Chavan observed that the act of the wife to immigrate to Canada and settle there had been influenced by the husband’s decision to settle in that country in the first place. It had been noted that the wife was well-settled in Canada with a job in a pharmaceutical company. It would not be reasonable to ask her to leave it and come to India for the sake of her husband. The wife residing far from the husband because of her flourishing career could not be termed as the act of cruelty or desertion. Moreover, the husband had failed to show conclusive proof or medical documents to support the claims of medical problems that he has mentioned in his petition.
The husband had also claimed that his in-laws had threatened him to return his passport documents and the wife’s jewellery in 2011. He had also claimed that he had visited Canada twice and the wife had refused to meet him. According to him, she had said that she would allow him to meet their child only if he undertook to deny that he was the father. All of these claims could not be supported with shreds of evidence or witnesses.
The Hon’ble court had noted that there were enough intentions on the part of the respondent, that is the wife to maintain the ties as can be seen from the fact that she did allow the husband to meet their son and at the same time there had been lack of intentions on the part of the husband to maintain the relationship.
The Hon’ble court also cited the case of Samar Ghosh versus. Jaya Ghosh in which the observation was that the relations between the couple had not been damaged to an extent where it had become impossible to be mended. There was still hope. Based on the same hope, the court has dismissed the divorce appeal and has expressed the hope that the couple might reconcile with each other at least for the sake of the child.