The Bombay High Court observed that as regards cruelty, it is important there is a reasonable apprehension in the mind of the party that living together would be harmful and injurious to life. Further, it observed that for desertion essential ingredients i.e., the factum of separation and animus deserendi needs to be proved.
Brief Facts:
The case of the Appellant was that the Respondent was suffering from Tuberculosis and the Petitioner took care of her medical treatment. The nature of Respondent was stubborn and short-tempered due to which the Appellant used to stay in mental agony all the time. One-time Respondent was admitted to the hospital and an HIV test was conducted which came out to be positive and caused more mental agony to the Appellant and his family. In 2005 Respondent left her matrimonial house but Appellant brought her back. However, this caused emotional distress to the Appellant’s mother and hence, the Appellant was sent back Respondent to her natal house. Since the Respondent was still HIV positive, the Appellant filed a petition for dissolution of marriage.
The said petition was contested by Respondent, and she argued that the result of the HIV report was “not detected” and that the Appellant has spread rumours about the report coming out to be positive. Further, the Respondent filed an application under PWDVA claiming monetary damages and accommodation.
The present appeal is preferred by the Appellant against the judgment of the Family Court vide which the petition of Appellant under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as “HMA”) was dismissed and the application of Respondent under Section 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “PWDVA”) was partly allowed.
Contentions of the Appellant:
It was argued that because the marriage has been irretrievable broken down and the evidence of the doctor who examined Respondent that the result is positive for HIV a decree of divorce should be granted.
Contentions of the Respondent:
It was contended that neither the doctor has not been examined nor any report saying HIV Positive has been produced by the Appellant as evidence. The Appellant has not been able to prove the allegations of cruelty.
Observations of the Court:
It was observed that the Appellant did not provide details of any specific incidents to prove allegations of cruelty. The Appellant during cross-examination admitted that for a period of 2 years there was no quarrel between the parties and that the Respondent has never harassed the Appellant physically or mentally.
The Court noted that cruelty should be of such nature that it causes reasonable apprehension in the mind of the Appellant about the harm and injury it would cause to his life if he lived with the Respondent.
Regarding the HIV report, the Bench observed that no report was produced to show that the result was positive. Instead, the cross-examination by the Respondent proves that the Respondent was not suffering from HIV.
The High Court further observed that it was on account of his mother that the Appellant compelled Respondent to return to her natal house.
The decision of the Court:
The Appellant could not even prove desertion and its essential ingredients; factum of separation and animus deserendi. Therefore, based on the above reasons the Bombay High Court upheld the order passed by the Family Court and dismissed the Petition of divorce and accordingly, dismissed the appeal.
Case Title: Prasanna Krishnaji Musale v. Mrs. Neelam Prasanna Musale
Coram: Hon’ble Justice Nitin Jamdra, Hon’ble Justice Sharmila U. Deshmukh
Case No.: Family Court Appeal No. 86 of 2011
Advocate for the Appellant: Adv. Mr. S.N. Chandrachood
Advocate for the Respondent: Adv. Mr. Purushottam G. Chavan
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