Case BriefsHigh Courts

Chhattisgarh High Court: A Single Judge Bench comprising of Goutam Bhaduri, J. dismissed an appeal filed against the order of the lower court regarding a divorce suit filed by the appellant/husband on the ground that the respondent/wife deserted him.

In the present case, it has been stated that, after the marriage of appellant and respondent, the respondent got an opportunity of a job and was selected as an Assistant Professor in the Education Department and she had to join her posting somewhere else other than her place of matrimonial home. Further, the husband suggested the wife not to join her place of posting, but she did not hear the advice and however supported by her family members and without the consent eventually, she joined her job at other place. It was pleaded for this very reason, that the wife deserted the husband, therefore, the marriage be annulled by a decree of divorce under Section 13(1)(i-b) of Hindu Marriage Act.

“Husband was completely depending as a parasite on his mother and father, therefore, despite the fact that the husband was agreed for his wife to join the job, he could not oppose.”

The Court below found no ground to hold that the wife had deserted the husband, therefore, dismissed the petition, which lead for the instant appeal.

The High Court on considering the circumstances and submissions of the present appeal, concluded its decision while stating that,

“When the girl is well educated, it is not expected that she would be kept in a boundary of matrimonial obligation only in confinement. It is for the husband and wife to balance the marital ties, which they are duly bound to do for each other”.

The Court while referring to the Supreme Court decision in Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676, in which it was observed that “wishes of the husband to throw a choice to the wife to hear to his wishes to make a choice” as has happened in this case will slaughter her core identity. Therefore, the husband and wife are to be equally treated and if the wife opted to join the job at different place, she cannot be otherwise forced at the behest of the husband or his family members to remain at her matrimonial home alone.

Thus, the grounds stated by the appellant in regard to desertion cannot be entertained as the job against the wishes of the husband does not justify the claim that the wife has deserted and except that no ground of mental cruelty has been pleaded or evidence has been adduced. The appeal was accordingly dismissed. [Hemant Parasar v. Kamini Parasar,2018 SCC OnLine Chh 663, order dated 26-11-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Mangesh S. Patil, J. dismissed a husband’s challenge to the award of compensation to his divorced wife granted by the Additional Sessions Judge.

The appellant-husband and respondent-wife were married in 2003. Subsequently, they developed discord and the wife left the husband alleging harassment. The husband filed petition for restitution of conjugal rights which was allowed. However, even after that, the parties couldn’t live together. Thereafter, the husband filed a divorce petition on grounds of desertion by the wife. The said petition was allowed and the marriage between the parties was dissolved, which decree had become final. Subsequent to that, the wife filed an application for maintenance under Section 125 CrPC. The application was rejected by the Judicial Magistrate; however, on appeal, the Additional Session Judge allowed the same. Aggrieved by the order of the Additional Sessions Judge, the husband had filed the present petition.

The High Court perused the record and found that the facts stated above were the admitted position of the parties. Marriage between the parties was indeed dissolved by a decree of dissolution which had become final. The question before the  Court was whether, under Section 125 CrPC, the Court could grant maintenance to a wife who was divorced on grounds of desertion. For adjudication, the Court relied on the Supreme Court decision in Rohatash Singh v. Ramendri, 2000 (3) SCC 180  wherein it was held that even such a wife can claim maintenance under the section; however, it would be available to her only from the date on which decree for dissolution of marriage had been passed. Accordingly, the husband’s challenge to award of maintenance granted to the wife was dismissed. However, it was held that the wife would be entitled to maintenance only from the date of divorce decree, and not from the date of filing of an application under Section 125 as held by the Additional Sessions Judge. The petition was disposed of in the terms above. [Dnyaneshwar Eknath Kachre v. Sunita,2018 SCC OnLine Bom 2243, dated 24-08-2018]

Case BriefsHigh Courts

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]

Case BriefsHigh Courts

Karnataka High Court: While deciding an appeal filed under Section 28 of the Hindu Marriage Act, 1955, a Division Bench comprising of L. Narayana Swamy, J and Dr. H.B. Prabhakara Sastry, J. dissolved the marriage solemnized between the appellant-husband and the respondent-wife holding that the wife deserted the husband for a continuous period of not less than two years.

The husband filed the petition under Section 13(1)(ib) of HMA against his wife, seeking dissolution of their marriage. The said petition was dismissed by the learned Principal Judge. The appellant contended that the court below committed a serious error even after assessing the evidence of the respondent who categorically stated in her disposition that she did not want to live with the appellant.

The High Court perused the material on record and submissions made in behalf of the parties. The Court found that the respondent in her cross-examination admitted that she resided with her husband for two years after the marriage and she had lived in her parental home after the marriage for about six years. This meant that after her marriage for more than half of the period she lived at her parental home. It was also noticed that even after graduating in her studies she did not join the husband to live with him. The respondent did not give any reason for her living separately from her husband. It was found that in total, the respondent lived separately from her husband for about 16 years, which fact was established. Accordingly the factum of separation was also established.

It was also observed that ‘desertion’ mentioned under Section 13(1)(ib) of the HMA is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state. In the instant case, the wife sated that she was not ready to live with the husband. As such, the animus deserendi on the part of the wife was established.

Accordingly, the appeal was allowed. The impugned order was set aside and the marriage between the parties was dissolved. [Dundappa v. Renuka, MFA No. 21724 of 2010 (MC), order dated 11.10.2017]

Case BriefsHigh Courts

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]

Supreme Court Cases

Cases Reported in 2014 SCC Vol. 7 August 28, 2014 Part 4

For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. Malathi Ravi v. B.V. Ravi, (2014) 7 SCC 640