The Karnataka High Court has ruled that if a wife separates from her husband due to his alleged extramarital relationship, such a move constitutes “justified withdrawal” from cohabitation rather than “desertion,” provided the plea is substantiated.
A division bench of Justice Suraj Govindaraj and Justice Dr. Chillakur Sumalatha, in an order dated April 28, noted, “Allegations of extramarital relationship, if proved, have a direct and substantial bearing on the issue of desertion. A spouse cannot be compelled, either in law or in equity, to cohabit with a partner who is simultaneously maintaining a relationship with another person.”
The bench emphasised that such conduct negates any animus deserendi (the intention to end cohabitation permanently) on the part of the wife. “The law does not require a spouse to remain in a matrimonial relationship when the other spouse’s conduct renders cohabitation unreasonable, unsafe, or undignified,” the court added.
The order added, “Conversely, a finding of desertion in favour of such a spouse would result in placing a premium on conduct which the law does not countenance.”
The wife, a school principal, had challenged a 2016 family court order that granted her husband a divorce on the grounds of cruelty and desertion.
The family court had originally accepted the husband’s contention that his wife left the matrimonial home without cause and subjected him to mental cruelty by making “defamatory” accusations, including claims that he had an illicit relationship and had HIV/AIDS.
Family court’s ‘double standard’
However, the wife argued that she was compelled to leave with her children due to the husband’s ill-treatment and his ongoing affair. She contended that the family court adopted a “double standard” by accepting the husband’s uncorroborated testimony while rejecting her defense for lack of documentary evidence.
She further argued that since no documentary evidence was presented to support the allegations made by either party, the family court should not have accepted only the husband’s version of events without independent or corroborative evidence.
Taking note of the wife’s pleading that living separately was not voluntary but was compelled by the conduct of the husband, including his alleged relationship with another woman. The bench in the order said, “The determination of desertion in the present case is intrinsically linked to the factual question as to whether the husband was, in fact, maintaining a relationship with another woman during the subsistence of the marriage.”
In the appeal, the wife produced additional evidence indicating that a child was born from the husband’s extramarital relationship when they were living separately. Taking note of the evidence, the court in the order said, “If the contents of the document are established, it would indicate that during the subsistence of marriage and contemporaneous with the alleged desertion, husband was cohabiting with another woman and fathering children through such relationship.”
Since the additional evidence was produced for the first time in the appeal, the court said, “Given the nature of the document and its potential bearing on the core issue of desertion, it would not be appropriate to summarily discard the same without affording an opportunity to the opposite party. The principles of natural justice require that the husband be afforded an opportunity to contest the said material, including by way of cross-examination and by leading rebuttal evidence.”
Stating that a spouse who is himself in breach of matrimonial obligations cannot be permitted to found a claim for divorce on the alleged desertion of the other. The court set aside the family court’s finding of desertion and remanded the case for reconsideration.
It said, “Finding of desertion recorded by the family court cannot be sustained in its present form and warrants reconsideration after affording an opportunity to the parties to adduce evidence.”
Cruelty allegation
The court stated that allegations regarding the husband having HIV/AIDS are serious and carry a stigma. If proven, such allegations would fall under mental cruelty, but they must be established according to the law.
Stating that the husband examined only himself and there is no other contemporaneous material, such as complaints, correspondence, or testimony of persons who may have witnessed the alleged conduct, to lend assurance to his version. The bench in the order said, “The finding of cruelty rests solely on the uncorroborated and interested testimony of the husband.”
“Acceptance of such allegations in absence of any supporting material would render the adjudicatory process vulnerable to subjective satisfaction rather than objective judicial determination.”
The family court, in its order, had rejected the wife’s allegation about the husband having an extramarital relationship, citing that no evidence was adduced by her. Refusing to accept it, the court said, “Judicial process mandates uniform application of evidentiary standards to both parties.”
Stating that a finding cannot be sustained where one party’s uncorroborated testimony is accepted, while the other’s is rejected for want of corroboration.
The court order said, “We are of the considered opinion that the finding of the family court that the wife subjected the husband to cruelty by abusing him or making false allegations regarding his health is unsustainable in law. The finding of cruelty recorded by the family court is not supported by the evidence on record.”
The Karnataka High Court ruled that a wife separating from her husband due to his extra-marital affair is a "justified withdrawal" and cannot be classified as desertion. (Image generated using AI). 
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