The observations of a bench of Justices Sujit Narayan Prasad and Arun Kumar Rai came on December 10, when it upheld a family court’s verdict denying divorce to the man in 2023.
“The deserted spouse must prove that there is a factum of separation and there is an intention on the part of the deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi (intention to desert) on the part of the deserting spouse,” the bench said.
Case
The couple married in April 2021 and had a child in January 2022. The husband, however, approached the family court seeking divorce on grounds of desertion and cruelty in September 2022.
The husband alleged that he and his family were meted with cruelty by his estranged wife, who purportedly claimed to be from an “urban” background but had to live in a rural area.
He further alleged that she taunted him for not having a government job and addressed his mother as a “witch” and left for her parental house every now and then.
She also assaulted him by slippers at her parental house and often used to threaten to abort her pregnancy, it was alleged.
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The wife was stated to have been living at her parental house since July 8, 2021, and despite requests of the husband she refused to resume a conjugal life, prompting the husband to move the family court.
On March 23, 2023, the family court refused to grant divorce saying that the wife has deserted him without any reason but it is evident from her testimony that she wants to live with him.
Findings
Asserting that the quality of permanence is one of the essential elements that differentiate desertion from wilful separation, the bench said, “If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion.”
Taking note of the findings of the family court while refusing to grant divorce, the bench said that the marriage took place on April 30, 2021, and the suit for dissolution for marriage was filed by the husband on September 1, 2022, which was within two years of the marriage.
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This was taken into consideration by the family court and rejected the said ground of desertion as alleged by the husband, the high court said.
The bench said that, as a ground for divorce, desertion must exist for a period of at least two years, and it differs from the statutory grounds of adultery and cruelty.
The quality of permanence is one of the essential elements that differentiate desertion from wilful separation, the bench added.
“The law consistently has been laid down by the courts that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause,” the high court order read.
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The bench further said there must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home.
For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there- the factum of separation, and the intention to bring cohabitation permanently to an end, the bench opined.
It also said that similarly, two elements are essential so far as the deserted spouse is concerned- the absence of consent, and absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention.
“Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, ‘the home’,” the court said.
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There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated and the person who actually withdraws from cohabitation is not necessarily the deserting party, it added.
