Mere severance of relation or separation without desertion not sufficient ground for divorce

Chhattisgarh High Court: An appeal filed challenging the decision of the District Judge whereby he dismissed appellant’s petition filed under Section 13 of Hindu Marriage Act, 1955, was dismissed by a Single Judge Bench comprising of Sharad Kumar Gupta, J.

Brief facts of the case were that the appellant-husband filed a divorce petition against the respondent-wife on the grounds of cruelty and desertion. The said petition was dismissed by the learned District Judge holding that the grounds on which divorce was sought by the petitioner (appellant) were not proved. The appellant filed the instant appeal challenging the said decision contending that the trial court did not examine the evidence in proper perspective and reached a wrong conclusion.

For deciding the appeal, the Court referred to various decisions of the Supreme Court as well as other High Courts and observed the essence of ‘desertion’- For the offence of desertion, two essential conditions must be there; (1) the factum of separation and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Two elements are essential as far as deserted spouse is concerned; (1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial house to form the necessary intention. Mere severance of relation or separation without desertion is not sufficient. Desertion is not walking out of the house but is withdrawing from home. Desertion consists in withdrawing not from a place but from a state of things.

In regard to ‘cruelty’, the Court observed that a consistent course of conduct inflicting immeasurable mental agony and torture constitute cruelty within the meaning of Section 13(1)(ia) of HMA. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

The Court held that the appellant failed to prove any of the elements to establish desertion or cruelty on the part of the respondent. No cogent evidence was provided by the appellant that could establish the grounds for divorce as prayed for by the appellant in the divorce petition. Thus, the Court on dismissing the appeal held that the impugned judgment of the trial court which was challenged in this appeal does not suffer from any infirmity. [Sanjeev Kumar Kaushik v Mongra Bai, 2018 SCC OnLine Chh 480, dated 24-04-2018]

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