[Cites 10, Cited by 0]
Bombay High Court
Gajanan Eknathrao Holey vs Sau. Kalpana Gajanan Holey on 21 January, 2026
Author: Anil L. Pansare
Bench: Anil L. Pansare
2026:BHC-NAG:946-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FAMILY COURT APPEAL NO. 25 OF 2019
Gajanan Eknathrao Holey,
Age : 50 years, Occ. Business
R/o Prabha Colony, Old bypass Road,
Amravati, Tq. and Dist. Amravati ... Appellant
// VERSUS //
Sau. Kalpana Gajanan Holey,
Age 45 years, Occ. House hold Work,
R/o C/o Deokabai Babanrao Lokhande,
Singhaniya Nagar, infront of the house of
Singhaniya, Yavatmal, Tq. & Dist. Yavatmal ... Respondent
Shri S.D.Borkute, Advocate for the appellant.
Shri S.N.Kumar, Advocate for the respondent.
CORAM : ANIL L. PANSARE
NIVEDITA P. MEHTA, JJ.
Reserved on : 17th January, 2026.
Pronounced on : 21st January, 2026.
JUDGMENT :
(PER : NIVEDITA P. MEHTA J.)
This appeal is filed under Section 19 of the Family Courts Act, 1984
by the appellant-husband, challenging the judgment and decree dated 05.04.2018
passed by the learned Judge, Family Court, Amravati (hereinafter referred to as
"the Family Court") in Petition No. A-123 of 2013, whereby the petition filed by the
appellant under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 (hereinafter
referred to as "Act, 1955") seeking divorce on the ground of cruelty came to be
dismissed.
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FACTUAL BACKGROUND
2. The marriage between the appellant and the respondent was solemnized on
09.06.1993 according to Hindu rites and customs. Out of the said wedlock, two
children were born, who are presently residing with the appellant. The appellant's
case before the Family Court was that the respondent and her relatives treated him
with humiliation and inferiority, and that the respondent's mother repeatedly
accused him of demanding money. It was further alleged that the appellant was
insulted at a family function of the respondent, where his presence was questioned,
and despite this incident, the respondent did not support him, thereby causing him
mental cruelty. According to the appellant, the respondent misbehaved with his
aged parents and compelled them to leave the house. It was also alleged that on
one occasion, the respondent left the matrimonial home without informing him,
and subsequently on 18.03.2013, she again left the house on her own accord,
taking with her gold and silver ornaments and cash of Rs.50,000/-. On the basis of
these allegations, the appellant contended that he was subjected to mental cruelty
and it was impossible for him to cohabit with the respondent.
3. The respondent-wife filed her written statement denying all allegations. She
contended that the appellant used to mentally and physically harass her, frequently
abusing her relatives and accusing them of disrespecting him. It was her case that
on 18.03.2013, the appellant demanded Rs.5,00,000/- from her parental home,
assaulted her, and drove her out of the matrimonial home. The respondent asserted
her willingness to resume cohabitation for the sake of the marital relationship and
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their children. She also filed a petition under Section 9 of the Act, 1955 seeking
restitution of conjugal rights.
FINDINGS OF THE FAMILY COURT
4. The appellant in order to prove his petition had examined himself and
initially proposed to examine his minor son, but later dropped him as a witness.
The respondent examined herself. Both parties produced documentary evidence.
Upon appreciation of the oral and documentary evidence, the Family Court held
that the appellant failed to establish cruelty within the meaning of Section 13(1)(i-
a) of the Act, 1955 and accordingly dismissed the divorce petition.
Aggrieved by the said judgment and decree, the appellant has preferred the present
appeal.
SUBMISSIONS OF THE PARTIES
5. Learned Counsel for the appellant contended that the Family Court failed to
properly appreciate the evidence on record and erred in holding that the
allegations were general in nature. It was argued that the Court wrongly insisted
upon documentary evidence or police complaints to establish mental cruelty and
erroneously applied Section 23 of the Act, 1955. It was further submitted that the
Family Court did not frame or decide the issue of desertion.
6. Per contra, learned Counsel for the respondent supported the impugned
judgment and submitted that the appellant utterly failed to prove cruelty. It was
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pointed out that the respondent's petition for restitution of conjugal rights (HMP
No.151 of 2013) was allowed on 13.02.2015, and the appeal (Regular Civil Appeal
No. 37 of 2015) filed by the appellant against the said decree was dismissed on
19.12.2017, thereby conclusively establishing the respondent's willingness to
cohabit. It was also brought to notice that despite the decree for restitution, the
appellant refused to take the respondent back, compelling her to initiate
proceedings under Section 125 of the Criminal Procedure Code and the Protection
of Women from Domestic Violence Act, 2005.The respondent admitted that the
appellant is regularly paying her maintenance. The respondent made an attempt to
resume cohabitation with the appellant. However, she was not permitted to do so
by the appellant and his family members, and consequently, she lodged a report,
which came to be registered as a non-cognizable report bearing No. 414 of 2015
dated 11.03.2015.
7. Heard learned Counsels for the parties at length and perused the
impugned judgment and decree as well as documents available on record.
POINT FOR DETERMINATION
8. The questions arise for consideration in this appeal are :
Sr.No. Points Findings
(i) Whether the appellant is entitled to a decree In the negative.
of divorce on the ground of cruelty and/or
desertion?
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(ii) Whether interference is called for in the In the negative.
impugned judgment and decree ?
(iii) What order ? As per final order.
As to Point Nos. (i) & (ii) :
9. The appellant has alleged mental cruelty and desertion on the part of the
respondent-wife. However, the allegations made in the affidavit evidence of the
appellant are vague, general, and devoid of specific particulars. The appellant has
admittedly failed to mention specific dates, words, or instances of alleged abuses or
humiliating conduct. During cross-examination, the appellant candidly admitted
that his affidavit does not contain details regarding the dates or nature of abuses
allegedly committed by the respondent. In matrimonial proceedings, particularly
when cruelty is pleaded, the burden lies heavily upon the petitioner to establish
conduct of such gravity as to make cohabitation impossible. Mere bald assertions,
without material particulars or corroboration, are insufficient to discharge this
burden.
10. The appellant further alleged that the respondent left the matrimonial home
on 18.03.2013 after taking gold and silver ornaments and cash of Rs.50,000/-.
However, the appellant admitted in cross-examination that no police complaint or
contemporaneous report was lodged regarding the alleged removal of valuables. No
documentary evidence or independent witness has been produced to substantiate
this allegation. On the contrary, the respondent has consistently stated that she
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took only her personal ornaments given by her parents and denied taking any cash.
In the absence of any corroborative material, the allegation remains unproved.
11. The allegation of desertion is also not borne out of the evidence on record.
Desertion, in law, requires proof of factum of separation and animus deserendi, i.e.,
an intention to permanently abandon the matrimonial relationship. While
separation between the parties since 18.03.2013 is not disputed, the evidence on
record clearly indicates that the respondent has never intended to sever the marital
tie. The respondent has deposed that she was compelled to leave the matrimonial
home due to ill-treatment and demand of money. More importantly, she has taken
positive and consistent legal steps to resume cohabitation, including issuance of a
legal notice and filing of a petition under Section 9 of the Act, 1955, which
culminated in a decree for restitution of conjugal rights in her favour. The existence
of such a decree conclusively negates the allegation of desertion on the part of the
respondent.
12. It is also significant that the appellant admitted that he has not taken any
steps to comply with the decree for restitution of conjugal rights passed by the
competent court at Yavatmal. The respondent's failure to file execution proceedings
cannot, by itself, be construed as abandonment of marital obligations, particularly
when the appellant has admittedly not demonstrated willingness to resume
cohabitation. A spouse who does not honour a decree for restitution cannot be
permitted to take advantage of his own conduct and seek divorce on the ground of
desertion.
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13. The appellant has further alleged that the respondent and her relatives
subjected him to humiliation and degrading treatment. However, these allegations
remain uncorroborated. The respondent, in her cross-examination, has specifically
denied such conduct. The appellant has not examined any independent witness
from either family or social circle to support his allegations. Even the evidence of
the minor son examined on behalf of the appellant remained incomplete and
inconclusive and does not advance the appellant's case.
14. On the other hand, the respondent's evidence demonstrates that she has
consistently expressed willingness to resume matrimonial life and has stated on
oath that she does not desire divorce and is ready to discharge her marital
responsibilities. Her conduct in initiating proceedings for restitution of conjugal
rights and not opposing cohabitation weighs in her favour.
15. The appellant has also relied upon subsequent proceedings under the
Protection of Women from Domestic Violence Act and Section 125 of the Code of
Criminal Procedure. However, the existence of such proceedings, by itself, does not
constitute cruelty. The respondent is legally entitled to seek maintenance and
protection under law, and the appellant has admitted that he is complying with the
maintenance order without challenge. Lawful recourse to statutory remedies
cannot be treated as matrimonial cruelty.
16. The appellant has failed to establish that the conduct of the respondent
amounted to cruelty within the meaning of Section 13(1)(i-a) of the Act, 1955. The
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allegations levelled by the appellant are vague and general in nature, lacking
material particulars as to time, place, and manner of the alleged acts, and remain
unsubstantiated by cogent evidence.
17. The Hon'ble Apex Court in the case of V . Bhagat Vs. D. Bhagat (Mrs) (1994)
1 SCC 33 wherein it has held in paragraph 16 as under :
"16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that
conduct which inflicts upon the other party such mental pain and
suffering as would make it not possible for that party to live with the
other. In other words, mental cruelty must be of such a nature that the
parties cannot reasonably be expected to live together. The situation
must be such that the wronged party cannot reasonably be asked to put-
up with such conduct and continue to live with the other party. It is not
necessary to prove that the mental cruelty is such as to cause injury to
the health of the petitioner. While arriving at such conclusion, regard
must be had to the social status, educational level of the parties, the
society they move in, the possibility or otherwise of the parties ever
living together in case they are already living apart and all other
relevant facts and circumstances which it is neither possible nor
desirable to set out exhaustively. What is cruelty in one case may not
amount to cruelty in another case. It is a matter to be determined in
each case having regard to the facts and circumstances of that case. If it
is a case of accusations and allegations, regard must also be had to the
context in which they were made."
18. The Hon'ble Apex Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511,
further laid down illustrative guidelines and reiterated that cruelty cannot be
determined by any fixed formula and must be assessed in the background of the
entire matrimonial relationship. The relevant paragraphs of said judgment is
reproduced as below:
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"100. Apart from this, the concept of mental cruelty cannot remain
static; it is bound to change with the passage of time, impact of
modern culture through print and electronic media and value system
etc. etc. What may be mental cruelty now may not remain a mental
cruelty after a passage of time or vice versa. There can never be any
strait-jacket formula or fixed parameters for determining mental
cruelty in matrimonial matters. The prudent and appropriate way to
adjudicate the case would be to evaluate it on its peculiar facts and
circumstances while taking aforementioned factors in consideration.
101. No uniform standard can ever be laid down for guidance, yet
we deem it appropriate to enumerate some instances of human
behaviour which may be relevant in dealing with the cases of 'mental
cruelty'. The instances indicated in the succeeding paragraphs are
only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the
parties, acute mental pain, agony and suffering as would not make
possible for the parties to live with each other could come within the
broad parameters of mental cruelty.
(ii) .....
(iii) .....
(iv) Mental cruelty is a state of mind. The feeling of deep
anguish, disappointment, frustration in one spouse caused by the
conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment
calculated to torture, discommode or render miserable life of the
spouse.
(vi) Sustained unjustifiable conduct and behaviour of one
spouse actually affecting physical and mental health of the other
spouse. The treatment complained of and the resultant danger or
apprehension must be very grave, substantial and weighty.
(vii) .....
(viii) .....
(ix) .....
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(x) The married life should be reviewed as a whole and a few
isolated instances over a period of years will not amount to cruelty.
The ill-conduct must be persistent for a fairly lengthy period, where
the relationship has deteriorated to an extent that because of the acts
and behaviour of a spouse, the wronged party finds it extremely
difficult to live with the other party any longer, may amount to
mental cruelty.
(xi) ......
(xii) Unilateral decision of refusal to have intercourse for
considerable period without there being any physical incapacity or
valid reason may amount to mental cruelty.
(xiii) .....
(xiv) Where there has been a long period of continuous
separation, it may fairly be concluded that the matrimonial bond is
beyond repair. The marriage becomes a fiction though supported by a
legal tie. By refusing to sever that tie, the law in such cases, does not
serve the sanctity of marriage; on the contrary, it shows scant regard
for the feelings and emotions of the parties. In such like situations, it
may lead to mental cruelty."
It is also settled law that mere trivial irritations, normal wear and tear of
married life, and isolated incidents do not constitute cruelty.
19. From the aforesaid cases, it is evident that the term ''cruelty'' as used
in Section 13(1)(i-a) of the Act, 1955 cannot be defined in given parameters and
there cannot be a comprehensive definition of ''cruelty'' within which all kinds of
cases of cruelty can be covered and each case has to be considered depending upon
its own unique factual circumstances.
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20. On careful perusal of the record and the impugned judgment, we find that
the appellant has failed to establish any specific acts of cruelty attributable to the
respondent. The allegations made are general, lacking particulars of time, place, or
circumstances, and do not meet the legal threshold of cruelty as envisaged under
Section 13(1)(i-a) of the Act, 1955.
21. Significantly, the respondent has consistently demonstrated her willingness
to resume cohabitation, as evidenced by the decree of restitution of conjugal rights
passed in her favour, which has attained finality. The conduct of the appellant in
resisting restitution further disentitles him to the equitable relief of divorce, in view
of Section 23 of the Act, 1955 which mandates that a party cannot take advantage
of his own wrong.
22. As regards desertion, the same is governed by Section 13(1)(i-b) of the Act,
1955 which mandates desertion for a continuous period of not less than two years
immediately preceding the presentation of the petition which includes both factum
deserendi and animus deserendi. Admittedly, the appellant alleged separation from
18.03.2013, whereas the divorce petition came to be registered on 04.06.2013,
much prior to completion of the statutory period, rendering the ground of desertion
wholly unavailable. Moreover, desertion was neither pleaded nor pressed before the
Family Court and cannot be permitted to be agitated at the appellate stage. The
statutory requirement being mandatory, non-fulfilment thereof is fatal to the
appellant's case. In view of the totality of the facts and circumstances, this Court
finds that the appellant has failed to make out any ground warranting interference
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with the well-reasoned judgment of the Family Court, and the appeal is devoid of
merit.
23. In view of the aforesaid discussion, this Court holds that the appellant has
failed to prove cruelty or desertion as required under the Act, 1955. The evidence
on record does not establish conduct on the part of the respondent of such nature
or degree as would entitle the appellant to a decree of divorce. Consequently, the
appellant has not discharged the burden of proof cast upon him, and the petition
for divorce is liable to be dismissed.
24. Considering the totality of facts and circumstances and the evidence on
record, we find no perversity, illegality, or infirmity in the findings recorded by the
Family Court. The judgment and decree dated 05.04.2018 are just, proper, and in
consonance with settled principles of law, warranting no interference in appellate
jurisdiction. Accordingly, Point Nos.1 and 2 are answered in the negative.
As to Point No. (iii) :
25. The appeal is devoid of merit and is accordingly dismissed. No order as to
costs.
[NIVEDITA P. MEHTA, J.] [ANIL L. PANSARE, J.]
Signed by: Mr. S.K. NAIR
Designation: PS To Honourable
Sknair Judge
Date: 21/01/2026 16:57:27
