READ ORDER | Wife Staying Abroad With Child For Career Since 11-Years Is Not Cruelty Or Desertion Of Spouse

A division bench of Justices Ujjwal Bhuyan and Prithviraj Chavan refused to entertain the husband’s appeal against a Family Court’s order dismissing his petition for divorce under section 13 (1)(ia) (cruelty) and 13(1)(ib) (desertion) of the Hindu Marriage Act 1955. The bench said:

This being the status of the respondent (wife), it would not be justified, in any way, expecting her to return to this country when she is already well settled over there. The desire of the respondent(wife) to settle in Canada is actuated by the fact that it was the appellant (husband) who had first consciously decided to settle in the foreign country.

As such, the wish of the respondent cannot be branded as an act of selfishness or the act on her part cannot be said to be unjustified. Thus, in no way, it could be said to be cruelty meted out to the appellant by the deserting spouse.

Case:

Both husband and wife are engineers who were deeply in love with each other. The couple had an eight-year-long courtship post which they got married on January 5, 2004 in Mumbai. Subsequently, the two also acquired Canadian citizenship after the husband immigrated there for better prospects in 2003, and the wife followed on a spouse visa.

The husband said that he met with a car accident in 2009, after which his wife nursed him back to health. The couple had their first child in 2010, however, in the same year, the husband said he lost his job due to the recession. His health also suffered again where he developed back and shoulder pain and a skin allergy called ‘ragweed allergy’. This is when the couple decided to to return to India.

The court reproduced the woman’s resume, details of her flourishing career with a pharmaceutical company in Canada to note that the husband could rejoin his wife, especially since it was his idea to settle in Canada for better prospects in the first place.

The bench further noted that while the husband had cited his ill health for not joining his wife back in Canada, he failed to provide any medical certificates to ratify his claims. Finally, the court cited the judgment of Samar Ghosh Vs. Jaya Ghosh, to observe that the couple’s relationship hadn’t deteriorated to such an extent that it would be impossible for them to unite. The bench noted,

We hope that there is still scope for the couple to restore the bond at least for the sake of their child.

The bench thus held that the couple’s marriage has not reached a stage of such deterioration that it is beyond repair, especially since their son is still young and could be a bond between the couple to reunite them once again.

MDO Take:

• According to the petitioner husband, wife left him in India and returned to Canada with just born child in 2010
• Parties have not co-habited together since 11-years, neither the woman has turned up for single hearing whether it was for restoration of conjugal rights or divorce matter
• The woman also left the country unilaterally with the child and as in almost all cases, the father had no right or say whatsoever in the same
• Now juxtapose this case by reversing the genders – if a husband would have left India with child, leaving his wife behind and not even appearing for court dates, NCW, NCPCR, WCD Ministry and possibly even Home Ministry would have intervened to suspend the man’s passport and bring him and the child back
• Even after 11-years of separation, the court still finds ‘hope’ that the marriage could be revived; such inhuman verdicts speak volumes of how Men are trapped in dead relationships for life
• If both parties want to lead their separate lives, one in India and one in Canada, why does our legal system not permit both parties to live in peace? The woman has never contested or shown any interest in even attending court dates
• In our opinion, this is gross violation of human rights of the man, who either has to fall to the feet of his wife or live as a separated husband in India all his life, since he cannot move ahead or remarry
• Indian matrimonial laws are regressive, gender biased and completely cruel