Friday, October 4, 2013

Wife's refusal to quit job no reason for divorce: HC

 The failure of a wife to take job transfer to her husband's city, even if promised before marriage, does not constitute 'cruelty' for which divorce can be sought, the Bombay high court has ruled.

The court was hearing the case of a Mumbai man seeking divorce from his wife of 17 years. It dismissed the husband's plea as well as his Pune-based wife's plea seeking restitution of conjugal rights. The couple has lived apart for 16 years during which the husband remarried.

In a verdict touching on a modern dilemma for couples, a division bench of Justices Abhay Oka and Gautam Patel said it could not accept the hypothesis underlying the husband's argument.

The premise, the court said, was that "it is the bounden duty of a wife, as a legal obligation, to extirpate herself from her settled life and job to follow her husband. Her needs, wishes and desires must be relegated to second place, suborned to the husband's personal and family needs. Her identity, as it were, is only as a wife, not as an independent woman with her own job and earning."

"This is a thoroughly retrograde view, one that undermines a fundamental premise of parity and equality in marriage," the court said.

The couple wedded in December 1996, but differences emerged soon after. The husband said the wife, a government employee in Pune, did not take a transfer to Mumbai despite promising so earlier. The wife said she strived to maintain a balance between her job and marriage and commuted between Mumbai and Pune on weekends and holidays.

The husband sought divorce in 1998, while the wife petitioned for restitution of conjugal rights. Both the petitions were dismissed by the Pune Family Court, whose decision was subsequently challenged in the high court in 2002.

The judges, while dismissing both appeals, said: "In support of her petition, she deposed that she would apply for a transfer but not give up her job. This was in 2004. Even as late as this, and though it cannot shore up her claim for restitution of conjugal rights, the evidence indicates her willingness to continue with the marriage. To say, therefore, that there was cruelty on her part is, in our view, entirely incorrect."

The high court refused to grant divorce on the grounds of 'irretrievable breakdown of marriage', saying that only the Supreme Court has the power to do so.

It called the matrimonial differences between the couple "unfortunate" while noting that they have lived apart for 16 years. It said the husband has remarried during pendency of appeals and thus thrown "into jeopardy" yet another life.

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