Mr. Jay Vijaywaghmare vs Mrs. Jyoti Jay Waghmare

CNR No : HCBM010051442020

2026:BHC-AS:43422-DB
FCA 11_2022.odt

Rohit Ghuge
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 11 OF 2022
Mr. Jay Vijay Waghmare
Age: 31 years,
R/at Ganesh Sadan, bldg No. 24
Room No. 410, Mahatma Phule
Jyothiba Greha Nirman Sanstha
Maharashtra Nagar, Mankhurd.
Mumbai – 400 088 …Appellant
Versus
Digitally
signed by
ROHIT
RAMDAS
GHUGE
Date:
2026.10.26
16:10:22
+0530
ROHIT
RAMDAS
GHUGE
Mrs. Jyoti Jay Waghmare
Maiden Name Jyoti Shantaram Gamare
Age- 25 Years, Occ. Private Service,
R/at Sharam Safalya Kamgar Sangathan.
E-1/32, Sector-8, Near MGM School,
Nerul (West), Navi Mumbai. ...Respondent
_______________________________________________________________
Mr. Iqbal Abdulla Zarodarwala for the Appellant
Ms. Sakshi Singh i/b Mr. Ravi Dwivedi, for Respondent.
_______________________________________________________________
CORAM: BHARATI DANGRE &
ASHISH S CHAVAN, JJ.

rd
DATE : 23 OCTOBER 2026.
JUDGMENT (Per Ashish S. Chavan, J.):
1. By way of this Appeal, the Appellant husband has raised a
challenge to a judgment of the Family Court at Bandra (“Family Court”)
dated 23.09.2019 (“impugned order”) inter alia dismissing the Petition
filed by him against the Respondent wife seeking divorce on the ground
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of cruelty u/s 13 (1) (ia) of the Hindu Marriage Act, 1955 (“HMA”). The
Appeal being admitted on 28.06.2024 and the Respondent being served
and represented before this Court, the same was heard finally.
2. Bereft of unnecessary details, the factual matrix can be
summarized thus:
2.1. The marriage between the Appellant and the
Respondent was solemnized on 28.04.2013 in Mumbai as per
Buddhist rites and rituals.
2.2. It is the pleaded case of the Appellant that for initial 6
months there was happy cohabitation between them however
thereafter, certain problems started cropping up leading to start of
a marital discord between the Appellant and the Respondent.
These events and incidents are set out in the Marriage Petition
before the Family Court.
2.3. Shortly after the marriage, the Respondent wife after
medical examination was informed by the doctor that she was
pregnant. The Appellant accompanied her on various occasions to
appointment with doctors and the Respondent stayed at her
parents house in Nerul. One day, the Appellant received a call
from the Respondent informing him that she had miscarried. The
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Appellant has pleaded that he was shocked on hearing this and that
the Respondent thereafter started making allegations against him
that he was responsible for the miscarriage. After this incident, the
rift between the parties widened. The Respondent refused to
return back to her matrimonial home.
2.4. The Appellant has narrated several incidents in his
Petition before the Ld. Family Court describing how the
Respondent behaved cruelly and caused distress to the Appellant.
He has pleaded that despite the acrimonious behavior of his wife,
he and his family members made all efforts to reconcile and
requested the Respondent wife to come back to the matrimonial
house.
2.5. On 24.09.2014, the Appellant received a letter from
the Special Cell for Women and Children, CBD Belapur informing
him that the Respondent had registered a complaint against him.
During the course of inquiry with the lady police officer, seeking
to explore an amicable solution to the martial discord, the
Respondent remained adamant and refused to resume the conjugal
life.
2.6. It is the specific case of the Appellant that the
Respondent has left the matrimonial house on 13.05.2014 and
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since then she is residing at her parental house. This, as pleaded by
the Appellant amounts to desertion and the acts of the Respondent
make out a case of cruelty.
2.7. In the proceedings before the Ld. Family Court, the
Respondent though served and marked her presence, failed to file
her say. It is in this background, that the Ld. Family Court
proceeded to hear the matter without the written statement of the
Respondent.
2.8. Vide the impugned order dated 23.09.2019, the Ld.
Family Court dismissed the Petition of the Appellant, aggrieved by
which he has filed the present Appeal.
3. On behalf of the Appellant, reiterating his stand before the
Ld. Family Court, it was sought to be argued that Respondent has
deliberately and consistently through her conduct demonstrated that she
had no interest in resuming the martial ties and the incidents pleaded by
the Appellant husband before the Ld. Family Court and also before this
Court which remain uncontroverted, clearly make out a case of cruelty
within the provisions of Section 13 (1) (ia) of the HMA. It was submitted
that the Respondent’s conduct towards the Appellant and his mother at
various instances has caused distress to the Appellant, however, despite
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the same he made not one but multiple attempts to mend the marital
relations. The Appellant submitted that he tried to convince the
Respondent and even sought intervention of the elders in the family, all
of which were in vain insofar as the Respondent continued to refuse to
return to the matrimonial home. It is also pleaded that the Respondent
has admitted that she was romantically involved with another man during
the subsistence of her marriage with the Appellant, however,
subsequently she claimed it to be a lie, which according to the Ld.
Counsel for the Appellant was an upsetting and distressing event for him.
It is also submitted that at various times, the Respondent has expressed
her wish for the Appellant to seek divorce from her, however, on
instituting proceedings for divorce, the Respondent though aware of the
same, marked her appearance through her advocate but did not contest
the same. It was sought to be argued that the Respondent left the
matrimonial home since 13.05.2014 and hasn’t returned since.
Therefore, it was argued that given the long period of separation and the
conduct of the Respondent before the Ld. Family Court and this Court of
neither contesting the proceedings nor seeking divorce by mutual
consent, would amount to cruelty insofar as the Appellant is compelled
to be part of a marital tie which has broken down irretrievably.
Therefore it is prayed that the conduct of the Respondent amounts to
cruelty u/s 13 (1) (ia) of the HMA and considering her refusal for
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cohabitation for almost 12 years, this is a case of desertion by the
Respondent u/s 13 (1) (ib) of the HMA and hence, the Appellant deserves
to be granted a decree of divorce from the Respondent.
4. On behalf of the Respondent wife, although, an appearance
was entered into and she was represented by an advocate, despite giving
number of opportunities to her advocate, to make submissions, the Ld.
Advocate for the Respondent wife on instructions submitted that the
Respondent has nothing to say in the matter and has left it to this Court
to pass appropriate orders. She also submitted that the Respondent did
not want to obtain divorce by way of mutual consent.
5. The facts in the present proceedings have given rise to a
peculiar situation which would adequately set out the context in which
we would base our observations and findings. The Respondent wife,
although served in the proceedings before the Ld. Family Court and this
Court has been represented by an Advocate. However, she has chosen
not to contest the contentions of the Appellant husband, while at the
same time, refusing to dissolve the martial ties by way of divorce by
mutual consent.
6. The Appellant has approached this Court making out a case
of cruelty and desertion against the Respondent which forms part of the
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pleadings before the Ld. Family Court. A perusal of the pleadings reveals
that for a brief period of six months following the marriage, the
Appellant and the Respondent were happily cohabiting in their
matrimonial home along with the Appellants mother. After about six
months, the Respondent on finding out that she is pregnant, left the
matrimonial home and stayed at her parental house. Under the
impression that the Respondent was staying at her parental house for pre-
natal care, and with the understanding that she will return in a few days,
the Appellant did not make any grievance and on the contrary
accompanied her to various medical appointments. He also visited the
Respondent from time to time and inquired after her health. After about
a month, on one such occasion, when the Appellant requested her to
come back to her matrimonial home, the Respondent replied that she
would do so only if the Appellant agreed to live in a nuclear family
system, in a separate house from that of his parents. After much
deliberation and convincing, the Respondent wife agreed to return to her
matrimonial house.
7. Shortly thereafter, the Respondent wife suffered a
miscarriage, due to which she was distressed and underwent mental
trauma. She repeatedly started attributing the blame for the miscarriage
to the Appellant for no perceivable fault of his, which was upsetting to
him.
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8. On noticing that the Respondent would spend considerable
time chatting with someone on voice calls, the Appellant inquired about
the same, to which the Respondent replied that she used to talk to one
of her female friends Neha. However, subsequently, the same turned out
to be a lie as admitted by the Respondent herself and she claimed that she
was infact talking to her paramour. She expressed her wish to marry him
and for the Appellant to seek a divorce from her. At first, the Appellant
although taken aback by this turn of events, disbelieved her and brushed
aside her assertions, giving her the benefit of doubt . However, since she
reiterated these assertions repeatedly, the Appellant was given in to
believing her and this caused him extreme mental distress. The consistent
attempts of the Appellant to mend the marital ties were rebuffed by the
Respondent wife. The Appellant has cited one such occasion of
‘Valentines Day’, when the he had decided to spend some time together
with the Respondent, who cancelled the plans at the eleventh hour
pointedly reiterating her love for her paramour.
9. The Appellant has pleaded that subsequently, the
Respondent retracted the aforesaid story admitting it to be false and on
the contrary told the Appellant that she was only talking with her female
friend Neha. These diametrically opposed versions of the Respondent’s
narrative caused a great deal of mental disturbance to the Appellant.
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10. It is the contention of the Appellant that the Respondent’s
conduct during an incident in the month of May 2014 marked the
ultimate collapse of an already strained marriage. One day the
Appellant’s mother received a phone call from the Respondent’s mobile
number and a lady named Neha informed her that the Respondent will
not be coming home that night due to some celebrations. Both, the
Appellant and his mother insisted for the Respondent to return home by
9.00 pm, however, she refused. At about 9.30 pm on the same night, the
Appellant called the Respondent out of worry, however, her phone was
switched off and hence they called Neha’s mother who informed that
both Neha and the Respondent were sleeping. It is the Appellant’s
contention that the Respondent did not like that he called Neha’s mother
and the same led to a fight between the parties the very next morning.
11. Following the marital discord, the Respondent lodged a NC
Report with the Nerul Police Station, wherein the Appellant was called
for an inquiry and then released. Thus began a series of attempts to
salvage the marital tie. The Appellant involved the Respondent’s parents
in the matter, hoping for a reconciliation with the intervention of the
elders, however the same yielded no positive outcome. The Respondent
filed another complaint with the Special Cell for Women and children,
CBD Belapur. Pursuant to the said complaint, a series of meetings were
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held to bring about reconciliation between the parties. During the course
of these hearings, the Respondent expressed her wish to seek divorce
from the Appellant. As a final attempt to save the marital tie, the
Respondent’s father referred the dispute to Buddhist Panchayat,
Kamothe. Despite meetings involving the parties as well as the elders of
the family, there was no positive outcome.
12. Before adverting to the facts of the case, it would be
apposite to set out set out various judicial pronouncements relating to
matrimonial jurisprudence relating to the grounds of cruelty and
desertion as defined in the HMA. Although the term “irretrievable
breakdown of marriage” has been the focal point of several judgments of
the Hon’ble Apex Court, one of the earliest references to this term is
found in the judgment of the Apex Court in Ms. Jorden Diengdeh vs S S
1
Chopra . The concept of irretrievable breakdown of marriage was
commented upon and exercising its power under Article 142 of the
Constitution of India, in several judgments, the Hon’ble Apex Court has
given its imprimatur to the concept of “irretrievable breakdown of
marriage” as a ground for divorce, especially in the framework of HMA.
2
13. In the case of Samar Ghosh vs. Jaya Ghosh , the Apex Court
has given several illustrations of cruelty which are as under:
1 (1985) 3 SCC 62
2 (2007) 4 SCC 511
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“101. No uniform standard can ever be laid down for guidance,
yet we deem it appropriate to enumerate some instances of
human behaviour which may be relevant in dealing with the
cases of “mental cruelty”. The instances indicated in the
succeeding paragraphs are only illustrative and not
exhaustive:
(i) On consideration of complete matrimonial life of
the parties, acute mental pain, agony and suffering as would not
make possible for the parties to live with each other could come
within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes abundantly clear that
situation is such that the wronged party cannot reasonably be
asked to put up with such conduct and continue to live with
other party.
(iii) Mere coldness or lack of affection cannot amount
to cruelty, frequent rudeness of language, petulance of manner,
indifference and neglect may reach such a degree that it makes
the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of
deep anguish, disappointment, frustration in one spouse caused
by the conduct of other for a long time may lead to mental
cruelty.
(v) A sustained course of abusive and humiliating
treatment calculated to torture, discommode or render
miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of
one spouse actually affecting physical and mental health of the
other spouse. The treatment complained of and the resultant
danger or apprehension must be very grave, substantial and
weighty.
(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard of
conjugal kindness causing injury to mental health or deriving
sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy,
selfishness, possessiveness, which causes unhappiness and
dissatisfaction and emotional upset may not be a ground for
grant of divorce on the ground of mental cruelty.
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(ix) Mere trivial irritations, quarrels, normal wear and
tear of the married life which happens in day-to-day life would
not be adequate for grant of divorce on the ground of mental
cruelty.
(x) The married life should be reviewed as a whole
and a few isolated instances over a period of years will not
amount to cruelty. The ill conduct must be persistent for a
fairly lengthy period, where the relationship has deteriorated to
an extent that because of the acts and behaviour of a spouse, the
wronged party finds it extremely difficult to live with the other
party any loner, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of
sterilisation without medical reasons and without the consent or
knowledge of his wife and similarly, it the wife undergoes
vasectomy or abortion without medical reason or without the
consent or knowledge of her husband, such an act of the spouse
may lead to mental cruelty.
(xii) Unilateral decision or refusal to have intercourse
for considerable period without there being any physical
incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife
after marriage not to have a child f rom the m arriage may
amount to cruelty.
(xiv) Where there has been a long period of
continuous separation, it may fairly be concluded that the
matrimonial bond is beyond repair. The marriage becomes a
fiction though supported by a legal tie. By refusing to sever
that tie, the law in such cases, does not serve the sanctity of
marriage; on the contrary, it shows scant regard for the feelings
and emotions of the parties. In such like situations, it may lead
to mental cruelty.”
(emphasis supplied)
3
14. The judgment of Rakesh Raman vs Kavita further expands
the horizon of the interpretation of the concept of cruelty within the
framework of HMA, incorporating the elements of irretrievable
3 (2023) 17 SCC 433
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breakdown of marriage. Quoting extensively from Samar Ghosh (supra ),
the Hon’ble Supreme Court observes that although irretrievable
breakdown of marriage may not be a statutory ground for dissolution of
marriage under HMA, however cruelty certainly is. Speaking through
Sudhanshu Dhulia J (as his Lordship then was), the Court observed:
“22. Irretrievable breakdown of a marriage may not be a
ground for dissolution of marriage, under the Hindu
Marriage Act, but cruelty is. A marriage can be dissolved
by a decree of divorce, inter alia, on the ground when
the other party “has, after the solemnisation of the
marriage treated the petitioner with cruelty”.
23. In our considered opinion, a marital relationship which
has only become more bitter and acrimonious over the
years, does nothing but inflict cruelty on both the sides. To
keep the facade of this broken marriage alive would be doing
injustice to both the parties. A marriage which has broken
down irretrievably, in our opinion spells cruelty to both the
parties, as in such a relationship each party is treating the
other with cruelty. It is therefore a ground for dissolution of
marriage under Section 13(1)(i-a) of the Act.”
This view has also been echoed by the Hon’ble Supreme Court in
4
the recent case of Sonal Talpada vs. Veerbhan Singh where after referring
to several previous judgments, including Samar Ghosh (supra) , dealing
with a case arising out of an Appeal from the High Court where the
parties had been living separately for several years, observed this:
“24. This Court in multitude of cases, has held that in
situations where parties have been living separately for a
considerable time without any hope for reconciliation amounts
to cruelty to both the parties.
4 2026 SCC OnLine SC 1063
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25. In the light of the above, it can be said that the High Court
has rightly assessed that where parties have been living
separately for several years and at this stage asking them to
live together after a prolonged duration would amount to
cruelty to both the parties and divorce can be granted on this
ground as provided under section 13 (1) (ia) of HMA. It may
be added here that desertion as a ground requires an initial
period as mentioned under the statute but if such desertion
continues for a long period of time without any effort on the
part of the parties to restore cohabitation would itself be a
ground to be considered by the Appellate Court. This we say
in the light of the fact that human relations are dynamic and
once the initial mandate under the statute stands satisfied,
continuation thereof during the litigation would aggravate the
said agony which could be confirmational in substantiating the
basis and pleaded ground for divorce. The same can be taken
into consideration for formation of an opinion to accept the
prayer by the Appellate Court. Appeal is the continuation of a
suit and therefore, the Appellate Court would be entitled and
justified to consider the conduct of the parties during the
pendency of litigation. The same can also be looked into to
support or reject an opinion on the ground in question.
26. An Appellate Court, while carefully ensuring that a party
does not profit from their own manifest wrong or unilateral
desertion, may legitimately treat a prolonged period of
separation as an indicator of mental cruelty within the meaning
of Section 13(1)(ia) of the HMA. The Appellate Court is not
precluded from examining whether continuous separation over
a substantial period, coupled with absence of any genuine effort
at reconciliation, complete cessation of cohabitation and
emotional alienation has resulted in mental cruelty. Subsequent
events occurring during pendency of proceedings may
legitimately be taken into consideration while undertaking such
assessment. In such circumstances, the confirmation of a decree
of divorce by an Appellate Court is not an invocation of
extraordinary constitutional jurisdiction under Article 142 of
the Constitution of India, but a lawful and realistic application
of the statutory ground of cruelty to the facts of the case.”
(emphasis supplied)
15. Revisiting the facts of the present case, in the backdrop of
the preceding discussion, we find that the Appellant has made out a case
of cruelty against the Respondent which has not been contested by the
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Respondent. It is also not in dispute that there has been 12 years of
continuous separation between the parties which, leads us to observe that
the matrimonial bond is beyond repair. The prolonged separation in itself
is mental cruelty as can be seen from the various judicial pronouncements
referred to hereinabove. In the facts of the present case, the marital
relationship has only become more bitter and acrimonious over the years.
To keep the facade of this broken marriage alive, would be doing
injustice to both parties. Consequently, in the facts of the present case, in
our opinion, the Appellant has made out a case of cruelty and desertion.
We find substance in the submissions of the Ld. Counsel for the
Appellant that the unprovoked and unreasonable withdrawal of the
Respondent from the company of the Appellant, contradictory stands
taken by her regarding her romantic involvement with another man, her
persistent and unreasonable refusal to resume her matrimonial ties with
the Appellant despite consistent efforts made by him and his family to
reconcile and the vexatious and vindictive criminal proceedings initiated
by the Respondent amount to cruelty as per Section 13 (1) (ia) of the
HMA.
It is not disputed that the Respondent has withdrawn from the
company of the Appellant since 13.05.2014. Thus, the Appellant has
demonstrated desertion by the Respondent for the last 12 years,
satisfying the ingredients of Section 13 (1) (ib) of the HMA.
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16. In the wake of the aforesaid discussion, we have no
hesitation in coming to a conclusion that the impugned order deserves to
be set aside and the parties be granted divorce u/s 13 (1) (ia) and 13 (1)
(ib) of HMA.
17. Hence the following order:
: ORDER :
(i) Family Court Appeal No. 11 of 2022 is allowed.
Impugned order passed by the Family Court, Bandra dated
23.09.2019 in Petition No. A – 795 of 2016 is set aside.
(ii) The marriage solemnized between the parties on
28.04.2013 stands dissolved under Section 13 (1) (ia) and 13
(1) (ib) of the Hindu Marriage Act, 1955.
(iii) Decree to be drawn up accordingly.
ASHISH S. CHAVAN, J. BHARATI DANGRE, J.
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