‘Not just leaving house’: Jharkhand High Court explains why simply moving out doesn’t count as ‘desertion’ in divorce

Noting that the wife had consistently deposed that she was keen and desirous to live with her husband and perform her wifely duties, the court added that the wife was ousted from the matrimonial home, and she never deserted the petitioner.

Findings

• The person who actually withdraws from cohabitation is not necessarily the deserting party.
• The word ‘desertion’, as has been defined in explanation part of Section 13 (grounds for divorce) of the Hindu Marriage Act, 1955, means the desertion of the petitioner by the other party to the marriage without reasonable cause and the consent or against the wishes of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.
• There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated.
• The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce, it must exist for a period of at least two years immediately preceding the presentation of the petition or, where the offence appears as a cross-charge, of the answer.
• Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted; desertion is a continuing offence.
• The quality of permanence is one of the essential elements that differentiate desertion from wilful separation.
• 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.
• In cross-examination, the husband has deposed that even if his wife desires to live and stay with him with good behaviour and attitude, he would not keep his wife with him because he has no faith and confidence in her.
• The law consistently has been laid down by the court that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause.
• 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.
• There should be animus deserendi (refers to the mental element of intent to desert) on the part of the deserting spouse.
• 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 met,
  namely, first is the factum of separation, and second is the intention to bring cohabitation permanently to an end.

Background

• The petitioner filed the plea against the family court order that dismissed the divorce plea of the husband.
  The petitioner married the respondent in June 2010, and in 2015, he filed the plea of divorce.
• He alleged in his divorce plea that shortly after the marriage, his wife began pressuring him to oust his elderly parents and sister from their home.
• He further claimed that she behaved in a “rude and violent manner,” even alleging an incident in October 2012 where she supposedly kicked her father-in-law while he was cleaning the floor.
• He filed the divorce petition on the grounds of desertion, alleging that his wife left the matrimonial home in October 2012 with their 11-month-old son and all her belongings, subsequently refusing to return.
• He alleged that this desertion caused the family immense suffering and prevented important social ceremonies for their child.