While taking a pragmatic, powerful and progressive stand, the Bombay High Court at Nagpur in a matrimonial matter judgment titled Pundlik Martandrao Yevatkar v. Sau Ujwala @ Shubhangi Pundlik Yevatkar in Family Court Appeal No. 75 of 2018 with Family Court Appeal No. 76 of 2018 pronounced as recently as on October 4, 2022 has explicitly observed that the expression of desire by a well-qualified wife that she wants to do a job does not amount to cruelty. No doubt, all the husbands and so also the wives must always remember this most laudable judgment as it is they whom it concerns the most.

It must be mentioned here that the Division Bench comprising of Hon’ble Mr Justice AS Chandurkar and Hon’ble Ms Justice Urmilla Joshi Phalke was hearing a plea that was moved by the appellant-husband alleging that respondent-wife after their marriage was harassing him for a job and subsequently left her matrimonial home which amounted to cruelty and desertion under the Hindu Marriage Act.

At the very outset, this brief, brilliant, balanced and bold judgment authored by Hon’ble Ms Urmilla Joshi-Phalke for a Division Bench of the Nagpur Bench of the Bombay High Court sets the ball in motion by first and foremost putting forth in para 1 that:
Heard learned counsel for the parties."

As we see, the Bench then states in para 2 that:
Alleging cruelty and desertion against the wife, the appellant/husband approached to this Court by filing an appeal against the judgment and decree of restitution of conjugal rights in A-Petition No.15/2018 (Old Hindu Marriage Petition No.81/2013) and dismissal of A-Petition. No.4/2018 (Old Hindu Marriage Petition No.52/2013) filed for dissolution of marriage."

To put things in perspective, the Division Bench then envisages in para 3 while dwelling on the facts stating that:
The facts of the case giving rise to the dispute are as follows:
A] The marriage of the appellant/husband and the respondent/wife was solemnized on 08/08/2001 as per Hindu rites and religion at mouje Anjangaon-Surji, Taluka Anjangaon-Surji, District Amravati. After marriage, the respondent/wife resumed cohabitation at the house of the appellant/husband at Buldana. The appellant/husband was serving as an Assistant Teacher at M.E.S. High School, Mehkar at the relevant time and was shuttling between Mehkar and Buldana. The respondent/wife is also qualified and completed her post-graduation and was desiring to do a teacher’s job.

B] After marriage, for a period of four months they resided together at Buldana. As per the contention of the appellant/husband that as per desire of the respondent/wife he was searching a suitable job of Teacher for her. However, she was harassing him for searching Teacher’s job and was also threatening that she would not beget a child, till she secures a job. In the meantime, the respondent/wife delivered a male child on 14/06/2002 at her maternal place.

After spending of three months at maternal house after delivery she resumed cohabitation at the house of the appellant/husband. As per the contention of the appellant/husband, after birth of the child again she started harassing him on the count that she wants to start her tuition classes at Mehkar. Therefore, on 01/10/2002 he shifted to Mehkar along with the respondent/wife and son Tejas. Though he shifted to Mehkar, the respondent/wife had not started tuition classes by assigning reason that her son is infant and she has to look after him.

The appellant/husband and the respondent/wife due to summer vacation shifted to Buldana and stayed there for two months. In the month of July, 2003 as the father of the respondent/wife was not well, she went at her parents’ house and returned back on 16/07/2003. They again shifted to Mehkar on 20/07/2003 and stayed there till May, 2004. Due to summer vacation in May, 2004 the appellant/husband and the respondent/wife came at Buldana. At the relevant time, the respondent/wife was four weeks pregnant, but she was not ready to carry her pregnancy and insisted for terminating the pregnancy.

The appellant/husband was not ready for the same and tried to convince her but the respondent/wife was not in a position to listen anything. Therefore, the appellant/husband had informed her mother on 01/05/2004. As per the communication with the mother of the respondent/wife, she told him to send the respondent/wife at her parental house and assured him that they will take care of everything and he should not worry.

It is alleged by the appellant/husband that before proceeding towards parental house the respondent/wife quarreled with him, collected all her belongings and went at her maternal house along with son. After reaching at her maternal house, the respondent/wife had not contacted him and whenever the appellant/husband had tried to contact, she had not responded. The appellant/husband called her on 07/06/2004 and requested to come at Buldana by or before 14/06/2004 as there was birthday of son Tejas but the respondent/wife did not turned up nor communicated with the appellant/husband.

The respondent/wife on 10/07/2004 by telephonic communication called him at her maternal place to fetch her back. Accordingly, he visited her maternal house but the respondent/wife asked him to obtain the permission of her father. On communication with the father, the father of the respondent/wife refused to send her along with him, therefore, the appellant/husband constrained to return back alone.

As per the contention of the appellant/husband thereafter by telephonic communication as well as by issuing some letters, he requested the respondent/wife to resume cohabitation. After receipt of the letter also the respondent/wife did not turn up to resume cohabitation. The appellant/husband had visited her maternal house on 07/05/2006 but her father did not allow her to join his company by resuming cohabitation and threatened him.

Again he had visited at her parental house on 09/10/2012 along with his friends Ashok Pundalikrao Tidke and Shriram Ghongade to fetch her back but she did not turn up and not shown her willingness to resume cohabitation. In the meantime, the respondent/wife secured employment as an Assistant Teacher in Ashram Shala at Bahiram and son Tejas was also admitted in the School at Anjangaon Surji.

Quite significantly, the Division Bench points out in para 15 that:
Admittedly, neither the appellant/husband nor the respondent/wife alleged that there was abuses or assault on them by each other. The evidence shows that the marriage took place on 08/08/2001 and son Tejas born on 14/06/2002. The appellant/husband had not quoted any single incident to show that since the marriage till the birth of the child there was some quarrel between them on account of desire of the respondent/wife regarding doing the job. Only allegation of the appellant/husband was that the respondent/wife was harassing him by expressing that she wants to do the job. As per pleading, the respondent/wife quarreled with him on 02/05/2004.

Prior to that there is no allegation that there was quarrel between them on account of the same. Another allegation made by the appellant/husband that she terminated the pregnancy against his consent. Admittedly, no evidence is adduced by him to show that it was the wife who had terminated the pregnancy but as per the contention of the respondent/wife the pregnancy was terminated due to sickness. The respondent/wife had also not adduced any evidence in support of her contention.

It is pertinent to note that the respondent/wife had already accepted the motherhood by taking responsibility of the child. It is also evident from the evidence of the appellant/husband that the respondent/wife had not started the tuition classes as her child was infant and she had to take care about the same. In the background of above circumstances, admittedly inference could not be drawn that the respondent/wife was not ready to accept the responsibility of the child.

Even the contention of the appellant/husband is accepted as it is, it is well settled that the right of a woman to have reproductive choice is an insegregable part of her personal liberty as envisaged under Article 21 of the Constitution of India. Admittedly, she cannot be forced to give birth to a child. Coming back to the present case, when the appellant/husband alleges, she terminated pregnancy as she did not want child, burden is on him to prove the same. In the present case, neither the appellant/husband had adduced the evidence that the respondent/wife terminated pregnancy nor the respondent/wife proved a pregnancy was terminated due to sickness."

Most forthrightly, the Division Bench then observes in para 17 that:
After adverting to material on record it was not proved that the respondent/wife was insisting to the appellant/husband to search the job for her. It is evident from the evidence of the appellant/husband that he had no objection if the respondent/wife engaged in doing job. His evidence that the respondent/wife was harassing him is vague one. He nowhere narrated the manner in which he was harassed.

On the contrary, evidence shows that the respondent/wife had not accepted to conduct private tuition classes considering her child is of a tender age. Regarding the another allegation that she terminated pregnancy which is also not proved. The allegations of cruelty cannot be considered on trivial issues. The allegation should have the origin with reference to time, place and manner of cruelty. General allegations of cruelty do not constitute cruelty in the eyes of law so as to grant decree of dissolution of marriage on that premise.

It is observed by the Hon’ble Apex Court in A. Jayachandra Vs. Aneel Kaur 2005 (5) ALL MR 313 (S.C.) that mere annoyance or irritation may not constitute cruelty, rather it is a spontaneous change in human behavior which restricts the other side to live with the spouse under the fear of endangering life or bodily injuries. Though, the word ‘cruelty’ has not been defined strictly, but it has to be gathered from attending circumstances of each case. The allegations should be specific with regard to time, place and manner of committing such cruelty. The cruelty should be such in which it is not reasonably expected to live together.

It is observed by the Hon’ble Apex Court in Gurbux Singh Vs. Harminder Kaur AIR 2011 SC 114 that the aggrieved party has to make a specific case that the conduct of which exception is taken amounts to cruelty. It is true that even a single act of violence which is of grievous and inexcusable nature satisfies the test of cruelty. The marital life should be access as a whole and few isolated instances over a certain period will not amount to cruelty."

Most significantly, the Division Bench then holds in para 19 that:
The appellant/husband had also raised ground that without sufficient reasons the respondent/wife had withdrawn herself from his company and left the matrimonial house. She had deserted him. The appellant/husband had alleged that on 02/05/2004, the respondent/wife quarreled with him by saying that she is desiring to do the job and she wants to terminate the pregnancy.

After several attempts the respondent/wife had not returned back. The appellant/husband had adduced his evidence to support his contention. He testified that in the month of June i.e. on 07/06/2004 he contacted the respondent/wife by telephonic call and asked her to return at matrimonial house. Thereafter she called him on 10/07/2004 and asked him to come at her maternal house to fetch her back. Accordingly he went there.

The sum and substance of his evidence is that after his attempts the respondent/wife and her father both denied to join the company of the appellant/husband by the respondent/wife for cohabitation. He specifically admitted during cross-examination that he never contacted either by telephonic call or letter to the respondent/wife. He relied on the letter which was addressed to the respondent/wife by him dated 05/12/2004. Admittedly, said letter was not received by the respondent/wife and it returned back to the appellant/husband as not claimed. Though he testified that he sent second letter dated 28/06/2005 but there is no evidence that said letter is received by the respondent/wife.

The respondent/wife denied that she received any such letter. Admittedly, the appellant/husband had not issued any legal notice to the respondent/wife asking her to return for cohabitation. Though the appellant/husband had adduced the evidence of Ashok Pundalikrao Tidke which shows that he visited the maternal house of the respondent/wife along with the appellant/husband on 09/10/2012. Thus, there is no evidence that prior to 09/10/2012, the appellant/husband had visited the house of the respondent/wife to bring her back.

The respondent/wife as well as her witnesses also admitted that the visit of the appellant/husband at the parents house of the respondent/wife on 09/10/2012. Though the respondent/wife admitted his visit but she denied that the appellant/husband came to fetch her back. Thus, the evidence is sufficient to show that from 2004 to 2012 the appellant/husband had not taken any efforts to bring the

respondent/wife back for cohabitation. As already observed earlier he had also not adduced the evidence that the respondent/wife had terminated her pregnancy. On the other hand, the respondent/wife had come with the case that the appellant/husband as well as his sisters suspecting her character, therefore, she constrained to leave matrimonial house. Admittedly, no other reason came forward that the respondent/wife had left the house for other reason.

The appellant/husband had suggested the reason that as she wants to do the job and, therefore, she left the house. It is evident that she expressed her desire to do the job after the marriage to her husband. She had completed her post-graduation. The expression of her desire could not be said to be abnormal as every qualified person wants to use the knowledge acquired by him or her. There is no evidence that for acquiring the said job her behaviour was rude and arrogant towards her husband.

General allegation is made by the appellant/husband that she had harassed him. As per the allegation of the appellant/husband immediately after the marriage she started harassing him but the evidence shows that thereafter she stayed along with the appellant/husband for four years. From the said wedlock a child was begotten. The evidence of the appellant/husband shows that the respondent/wife not only stayed along with him at Mehkar but at matrimonial house at Buldhana along with other family members. The

time and manner in which the appellant/husband harassed was nowhere stated. In the light of above circumstances, the reason mentioned by the respondent/wife to live separately appears more probable. She assigned the reason that not only the appellant/husband but his sisters used to suspect her character which constrained her to leave the matrimonial

house. This evidence is to be accepted in the background that the respondent/wife stayed along with the appellant/husband for four years and never complained previously. The suspicion about her character by the appellant/husband constrained her to leave the matrimonial house. She had filed petition for restitution after the appellant/husband had filed petition for dissolution of marriage. She had not issued any notice to the appellant/husband. She filed petition for restitution of conjugal rights mentioning the reason that she constrained to leave the matrimonial house as her character was suspected. It is obvious that whenever a character was suspected, it is difficult for a woman to stay in a matrimonial house. This contention appears to be probable as no other reason came forward which made the respondent/wife to leave the matrimonial house after cohabitation of four years."

Most sagaciously, the Division Bench then minces no words to propound in para 23 that:
After giving thoughtful consideration to the controversy we are of the view that the appellant/husband failed to prove the ground of cruelty to obtain a decree of dissolution of marriage. The manner in which the appellant/husband faced cruelty is not proved. Mere annoyance or irritation or normal wear or tear differences does not constitute cruelty. The cruelty should be such in which it is not reasonably accepted to live together. The appellant/husband has not proved the desertion by the respondent/wife. Merely because the respondent/wife staying separately an inference of desertion cannot be drawn.

The marriage between the parties cannot be dissolved on the averments made by one of the parties that the marriage between them has broken down. The irretrievable breakdown of the marriage is not a ground by itself to dissolve it. As regards the allegation made by the appellant/husband are not believable. As observed earlier except the ground enumerated under Section 13 of Hindu Marriage Act, 1955 the marriage solemnized under the Act cannot be dissolved on any other ground."

It also cannot be glossed over that the Division Bench then directs in para 24 that:
In the light of the above discussion we are unable to accept the contention of the appellant/husband, hence no ground is made out to interfere with the findings of the Family Court. Accordingly, point nos.(i) to (iii) answered in negative. We accept the conclusion derived by the trial Court. Therefore, both appeals fail and are dismissed. There will be no order as to costs."

Finally, the Division Bench then concludes by holding in para 25 that:
At the request of the learned Counsel for the appellant, the effect of the judgment is stayed for a period of eight weeks."

In sum, the Division Bench of the Nagpur Bench of the Bombay High Court has made it crystal clear that a well qualified wife expressing desire to do job does not amount to cruelty. This is certainly a very progressive judgment and it must be adhered to by all the Judges in similar such cases. No denying it! The Court has elaborated in detail on various aspects and we have discussed only the key points here as stated hereinabove.

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.