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The Jharkhand High Court has held that a wife's mere wish that her husband live as a Gharjamai cannot constitute cruelty for the purpose of seeking divorce under the Hindu Marriage Act.

A Division Bench of Justice Sujit Narayan Prasad and Justice Sanjay Prasad was hearing an appeal filed by the husband challenging the dismissal of his divorce petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955, on the ground of cruelty.

The parties had married on 21.11.2008 at Patna and had an 11-year-old daughter. According to the husband, the couple initially lived peacefully at his parental home. He alleged that the wife subsequently began frequently visiting her parental home at Patna and that her parents wanted him to leave his elderly and ailing parents and live with them at Patna as a Gharjamai.

The husband claimed that the wife eventually went to Patna on 24.02.2013 and did not return to the matrimonial home. He alleged that she insisted that he move to Patna and live as a Gharjamai, which he refused because there was nobody else to look after his aged parents. He also relied upon the wife's frequent visits to her parental home as an instance of cruelty.

The Family Court, however, rejected the husband's claim of cruelty. It observed that visiting the parental home is a right of a bride and cannot, by itself, amount to cruelty for the purpose of divorce.

Before the High Court, the Bench considered the settled principles governing cruelty under matrimonial law. Referring to the Supreme Court's decision in Dr. N.G. Dastane v. Mrs. S. Dastana, the Court noted that the conduct alleged as cruelty must be of such a character as to create a reasonable apprehension that it would be harmful or injurious for the spouse to live with the other.

The Court reiterated that cruelty must be sufficiently grave and weighty and must be more serious than the ordinary wear and tear of married life. Mere trivialities, temperamental disharmony or incompatibility cannot ordinarily constitute matrimonial cruelty.

On the specific Gharjamai allegation, the High Court agreed with the Family Court. It observed:

“The learned Family Judge has also observed that practice of Gharjamai is a very old custom prevailing in our society but it remains to be absolute choice of groom to agree or not and there is no case that the appellant was compelled or forced to live as Gharjamai. Mere wish of respondent-wife that the appellant-husband should live as Gharjamai will not constitute cruelty for the purpose of Hindu Marriage.”

The Court also rejected the husband's contention that the wife's frequent visits to her parental home amounted to cruelty, observing that such visits could not, in the circumstances of the case, constitute a ground for dissolution of marriage.

The Bench held that the husband had failed to substantiate the alleged acts of cruelty and found no perversity in the Family Court's appreciation of the evidence.

Accordingly, the High Court upheld the dismissal of the husband's divorce petition and dismissed the appeal.

Case: R v. P

Case No.: FA No. 86 of 2022

Appearance: For the Appellant – Mr. Shekhar Prasad Gupta, Advocate. For the Respondent – Mr. Atanu Banerjee, Amicus Curiae.

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