In the present case, the couple, two budding engineers were deeply in love got married on January 5, 2004, in Mumbai, after an eight-year-long courtship. They obtained Canadian citizenship after the husband immigrated for better prospects in 2003, and the wife followed on a spouse visa.
The husband mentioned in his petition that he met with a car accident in 2009, after which his wife nursed him back to health. The following year they had their first child. However, the same year in 2010, he lost his job due to the recession and started suffering from back and shoulder pain and a skin allergy called 'ragweed allergy'. The couple then decided to return to India.
A month after their return to India, husband claimed that his wife left for her parent's home and subsequently left for Canada along with their son. The husband said he began job hunting in India, hoping his wife would return but in vain.
The husband then approached the court for restitution of conjugal rights but his wife failed to appear in the earlier proceedings. Eventually, he filed for divorce petition on the grounds of Cruelty and Desertion and the divorce case was decided ex-parte and dismissed. The Family Court judge observed that the husband's pleadings and evidence were quite vague.
The petition was uncontested even in the High Court. But the bench still refused to grant the husband relief.
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 observed that the wife's decision to remain in
Canada, where she settled with the couple son's, is not
unjustified or selfish and refused to grant a divorce to a
44-year-old engineer husband alleging cruelty and desertion as
grounds for seeking divorce following his spouse's refusal to
join him back in India.
The court perused the woman's resume detailing about her
flourishing career with a pharmaceutical company in Canada to note
that the husband could rejoin his wife, especially since it was
husband's idea to settle in Canada for better prospects in the
first place.
The Court also observed that the husband did not examine any witnesses to corroborate his claims that the wife's family had threatened him to return her passport, documents and jewellery in 2011 or they demanded any money.
The court further said there were no medical records to prove the man couldn't join his wife for health reasons. It added that the husband seems to have created a ground for divorce by accusing the wife's relative of telling him that his wife was not interested in keeping any relation with him.
The bench refused to believe the husband's claims that he visited Canada twice, but his wife declined to meet him and allowed him to meet his son only after he undertook not to tell the child he was the father. "Had it been the intention of the respondent (wife) to sever the marital tie, she would not have allowed the appellant to meet their son. This is an important aspect of the case indicating that neither the respondent treated the appellant with cruelty nor did she desire to desert him," the bench said.
"We hope that there is still scope for the couple to restore the bond at least for the sake of their child" the bench observed. 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.
Originally published June 29, 2021
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