X Vs. Y

JUDGEMENT

(1.) This as an appeal Filed by the wife against the Judgment of the Vth Family Court, Mumbai, decided on 28th September. 2007. decreeing the petition for divorce filed by the Respondent (Petition No.A 1804 of 2003). under sections 13(1)(ia) and I3(l)(ib) of the Hindu Marriage Act. 1955, on the grounds of cruelty and desertion. The brief facts are that the parties got married on 1st May 1987. It appears that soon thereafter on 25th January, 1989, the appellant wife left the company of the respondent husband, but later she filed a petition for restitution of conjugal rights (Petition No.789/89), which was decreed on 11th April, 1990. She resumed co habitation with the respondent after he paid her a sum of Rs.24,500/. The parties apparently lived together for the period between 1st July, 1993 and 15th January, 1994. On 7th April, 1994, she left the company of the respondent again. She returned the next day and lodged a criminal complaint against him for harassment, which she ultimately withdrew on being paid Rs. 10,000/ by the respondent. According to the respondent, on 1st August, 1996, he was transferred to Valsad, but she refused to accompany him there as she was working and giving tuitions at Surat at the time. On 12th January, 1997, when he visited her at Surat, she threw him out of the very premises, which he had rented for her to live in and further threatened him of dire consequences if he entered again. Since this incident, the parties have not cohabited till the date of fding of the divorce petition on 8th October, 2003 and thereafter.

(2.) There is little dispute between the parties about the period over which they have lived together. Rather, the dispute is about who is the cause for their being unable to cohabit. The learned Family Court has in fact observed that the parties have been married for a period of 20 years and have been litigating against each other for a period of 18 years. Having considered the evidence on record, the Learned Family Court has decreed the petition for divorce both on the ground of cruelty and desertion.

(3.) We have heard the Learned Counsel for both parties and also perused the evidence before us. We find that the evidence is insufficient to grant a decree of divorce on the ground of cruelty. As defined by the Hon'ble Apex Court in Dastane Vs. Dastane, 1975 2 SCC 326 and reiterated in several decisions thereafter :