In Prakashchandra Joshi v. Kuntal Prakashchandra Joshi and others, the Bombay High Court on 24^th June 2021 observed that no case has been made out by the Appellant for seeking a decree of divorce on the ground of either cruelty or desertion as the desire of the Respondent to settle in Canada cannot be branded as an act of selfishness and it can in no way be said to be cruelty meted out to the Appellant by the deserting spouse.

The Appellant (Prakashchandra Joshi)and the Respondent (Kuntal Prakashchandra Joshi) are overseas citizens of Canada. The couple has a 6-year-old son staying with the Respondent. They returned to India due to reasons like recession in Canada, mother of the Appellant not keeping well, etc. The Appellant had dropped the Respondent and their son at the parental house of the Respondent on her request. She then visited Kutch without intimating the Appellant about her whereabouts and after returning, refused co-habitation with him. As contended, the Respondent was insisting on a separate accommodation. The Appellant agreed to the demand, but the Respondent was interested in going back to Canada.

The appellant had expressed his unwillingness to shift to Canada owing to his health reasons. The Appellant even paid the Respondent CAN $ 25,000 plus Rs.1,25,000/- in Indian currency to facilitate her departure to Canada. The Appellant started looking for good job hoping that the Respondent would return. But she did not.

The Appellant then issued a legal notice calling upon the Respondent to co-habit with him. It was neither responded to nor complied with. When even the petition for restitution for conjugal rights filed by the Appellant was not responded or complied with by the Respondent, he filed the petition seeking divorce. In fact, when the Appellant had visited Canada to meet the Respondent and his son, he was not treated properly by the Respondent and allowed their son to see him only for 20 to 25 minutes.

The petition proceeded ex parte as the Rrespondent remained absent. Family Court Judge dismissed the petition by observing that the pleadings and evidence were quite vague, though ex parte.

Issue involved for the High Court to consider – Whether the Appellant has been subjected to cruelty by the Respondent so as to entitle him to a decree of divorce especially when the couple had shifted to Canada after their marriage with their free consent and will?

The Bombay High Court Held that:

1. The pleadings and the evidence are absolutely insufficient to reverse the impugned judgment.
2. The respondent has been working as a Regulatory Affairs Associate at a pharmaceutical company in Canada. As she is well settled there, it would not be justified to expect her to return to India.
3. As it was the Appellant who had first decided to settle in the foreign country for better prospects, the wish of the Respondent cannot be branded as an act of selfishness or the act on her part. Thus, there is no cruelty meted out to the Appellant.
4. The Court compared the present case with that of Samar Ghosh Vs. Jaya Ghosh, where there was a clear case of irretrievable break down of the marriage. However, in the present case, it would be very difficult to construe that the marriage of the parties has deteriorated to such an extent that it would be impossible to unite the couple.
5. The Court dismissed the appeal.

– Esha Shah, Paralegal – POSHequili