Why Calcutta High Court said desertion has more weightage than cruelty in marriage broken beyond repair

The couple got married in 2001 and had a son in 2003, but were allegedly living separately since 2007.

“Irretrievable breakdown of marriage for a prolonged period between the parties has more elements of desertion than cruelty, since the parties have, for all practical purposes, deserted each other without any intention to restore conjugal life between themselves,” the court said.

The court dismissed the woman’s plea, considering the following:

• A pragmatic view suggests a consistent judicial trend honouring the differences between the parties and not compelling them to stick with each other despite acrimony having built up by long and continuous severance of the matrimonial tie. 
• Irretrievable breakdown of marriage between the parties not only entails cruelty but also substantiates the ground of desertion.
• The ground of desertion was established by the irretrievable breakdown of marriage between the couple for a long period of about 18 years.
• No legal or factual error and perversity in the trial court’s order in granting a divorce on the ground of desertion, considering that the marriage had broken down “beyond repair”.
• Irretrievable breakdown is not by itself a ground of divorce but is a component of cruelty, and therefore a ground for dissolution of marriage under the Hindu Marriage Act.
• The husband’s conduct shows that the husband filed for divorce twice but had the good sense to withdraw the same to sustain the marital relationship. 
• There is nothing on record to show that the wife ever made any attempt to resume conjugal life with the husband between the withdrawal of the second divorce and the filing of the present case. 
• The wife made several allegations but failed to prove any act of cruelty on the part of the husband or any other fact justifying her abstinence from the company of the husband least since 2007.  
• The allegations that the husband failed to look after the wife and his son cannot be fully substantiated to the extent that they justified the wife living away from her husband for more than a decade.

Arguments

One of the advocates representing the estranged wife, advocate Surya Prasad Chattopadhyay, challenged the divorce granted by the trial court on the following grounds:

• Husband has not approached the court with “clean hands” since he, himself, deserted the wife and cannot take advantage of his own wrong.
• The trial court had committed a “legal and factual error” in observing that there are sufficient materials for the conclusion that the wife has caused, by her conduct, the desertion of the husband.
• “Irretrievable breakdown of marriage”, by itself, is not a ground for divorce under the Hindu Marriage Act.

On the contrary, appearing for the husband, advocate Amrita Panja submitted the following:

• The husband had withdrawn two previous divorce cases, but it does not imply that there was no desertion on the part of the wife.
• Her client had waited for ten long years after the dismissal of the last divorce case in 2007 before filing another case in 2017, during which there was no effort on the part of the estranged wife to resume the conjugal relationship.