Desertion as ground for divorce cannot be tested by merely ascertaining which party left the matrimonial home first

High Court of Delhi: While judging the legality and validity of the divorce decree granted to the husband respondent by the learned trial court, the Bench comprising of Pradeep Nandrajog and Yogesh Khanna, JJ., observed that since desertion is often invoked as ground of divorce however it cannot be tested by merely ascertaining which party left the matrimonial home first but if one spouse is forced by the conduct of the other to leave, the desertion could be by such conduct of other spouse thus, the Court setting aside the divorce granted to a husband/respondent held that the learned Judge, trail court had misread the evidence while granting a decree of divorce on the ground that wife /appellant left the matrimonial home without the consent of her husband thereby deserting him and failed to join his company, despite his repeated requests, thereby committing cruelty upon him by denying him  matrimonial bliss.

The Court while examining the contentions of the parties observed that the trail court had erred in passing the divorce decree as it disbelieved all the allegations lodged against the wife/appellant by the husband/respondent and only on the ground that the wife left the matrimonial home without according any reason, granted the divorce decree. The Court while setting aside the divorce decree observed that since the wife never wished to bring her marital ties permanently to an end but was forced by the conduct of the respondent to leave the matrimonial home and that it is the respondent who is guilty of constructive desertion as he failed to prove the behavior of the appellant towards him was such that it ever caused a reasonable apprehension in his mind that it was not safe for him to continue the matrimonial relations with the appellant. The Court further observed that desertion is not a withdrawal from a place, but from a state of things and it is the repudiation by one of all obligations of marriage and it cannot be tested by merely ascertaining which party left the matrimonial home first.  [Nisha Rani v. Sohan Singh Nehra, 2017 SCC OnLine Del 6404, decided on 6th January 2017]

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