Irretrievable breakdown of marriage owing to severe and/or insuperable incompatibility does not amount to cruelty, holds the Bombay High Court, dismissing a husband's plea for divorce owing to her wife's constant visits to pubs

The Bombay High Court has held in a recent judgment that irretrievable breakdown of marriage owing to severe and/or insuperable incompatibility does not amount to cruelty, and cannot be a ground for securing a decree of divorce.

Bombay High Court

A Division Bench comprising of Justices Vijaya Kapse Tahilramani and Anil Menon was considering the husband's bid to get divorce end his 20-year-old marriage on grounds of cruelty alleging that his wife, a businesswoman and resident of Pedder Road, liked to visit pubs and neglected their child and they had fights during their honeymoon. The couple have been living apart for the past 16 years.

The Family Court before which the husband had filed his petition for divorce dismissed the same in 2012, following which he had approached the Bombay High Court by way of appeal.

The Bench, dismissing the appeal filed by the husband held "At best, evidence shows insuperable incompatibility between the parties falling short of cruelty. Be that as it may, irretrievable breakdown of marriage owing to severe and/or insuperable incompatibility does not amount to cruelty and as such no relief can be granted."

"As far as visits to discos and pubs are concerned, it has come in the cross-examination that they both visited discos and pubs even during the period of courtship," the judges said, pointing out that the man also admitted that he had not complained to anyone about the fights during their honeymoon.

With regard to the other allegations, the HC said that the few "incidents highlighted by the husband over a period of four years of co-habitation do not, in our considered opinion, amount to mental cruelty". Referring to a Supreme Court judgment, the High Court said, "Mere coldness or lack of affection cannot amount to cruelty and it's only when the petulant behaviour reaches such an extent that married life becomes intolerable that cruelty can be proved."

The High Court however said that the wife, who runs her family's business and owns properties, had refused to divulge her income, which led it to conclude that she had substantial income of her own. It partly set aside the family court's order asking the husband to shell out Rs 50,000 as monthly maintenance from 2002. Instead, the judges ordered staggered amounts—Rs 30,000 per month till 2004, Rs 40,000 from 2005-09 and Rs 50,000 from 2009.