Cordial Exchanges Can’t Be Equated With Bona Fide Attempt To Restore Matrimonial Life: Delhi High Court Upholds Dissolution Of Marriage

While upholding the dissolution of marriage, the Delhi High Court remarked that cordial exchanges cannot be equated with a bona fide attempt to restore matrimonial life.

The Court was hearing an Appeal filed by the wife against the Family Court’s Judgment which allowed a Divorce Petition filed by the husband and dissolved the marriage between the parties on the ground of desertion.

A Division Bench of Justice Anil Kshetarpal and Justice Harish Vaidyanathan Shankar observed, “The Appellant has also relied on a compilation of emails and Viber chats to suggest her willingness to preserve the marital relationship. While these communications do reflect cordiality, cordial exchanges cannot be equated with a bona fide attempt to restore matrimonial life. Indeed, the record makes it clear that it was the Appellant who deserted the Respondent in November 2012, without his knowledge or consent.”

The Bench reiterated that the two essential constituents of desertion, namely, the factum of separation and the animus deserendi, must coexist in order to sustain a decree of divorce on this ground, and both must be proved affirmatively by the party seeking the divorce, to the stringent standard of proof beyond reasonable doubt.

Advocate Zishan Alam Siddiqui represented the Appellant/Wife, while Advocate Francis Paul represented the Respondent/Husband.

Factual Background

The parties were married in 2007 at Church in accordance with Christian rites and ceremonies. The marriage was consummated, but no children were born out of wedlock. According to the Appellant-wife, soon after the marriage, she was subjected to hostile treatment by her in-laws and they allegedly ridiculed her, created an atmosphere of discord, and caused disharmony within the household. The Respondent-husband being aware of these circumstances, was alleged to have remained a mute spectator and failed to extend support or protection. In 2008, the parties shifted to a rented accommodation taken on a company lease by the husband. The wife contended that despite her repeated requests to start a family, the husband, allegedly under the influence of his mother, refused on the ground that having a child would complicate a potential divorce. In 2009, the accommodation was vacated and while the husband returned to his parental home, the wife was allegedly constrained to take shelter at her relatives’ residence.

In 2011, the wife shifted to a rented house with the husband’s assistance, who frequently visited her and retained a spare key. In 2012, the wife received a job offer in Doha, Qatar which she accepted and relocated. Around the same, the husband also took up employment in Nigeria, where he remained until 2014. As per the wife, she continued to maintain communication with the husband through emails, viber calls, and other means. However, post 2014, there was no communication between them, and the parties continued to live in different countries. The husband claimed that a Draft Petition for Divorce by mutual consent was sent to the wife, but she refused to sign the same. In 2015, he initiated pre-litigation mediation proceedings before the Delhi High Court Mediation Centre but the wife did not participate. In 2017, he filed a Divorce Petition before the Family Court, seeking dissolution of marriage on the grounds of desertion and cruelty. The Family Court rejected the plea of cruelty but accepted the ground of desertion and granted a Decree of Divorce. Being aggrieved, the wife was before the High Court.

Reasoning

The High Court in view of the facts and circumstances of the case, noted, “The Court must therefore exercise heightened circumspection, for desertion is a continuing state of affairs, and the animus deserendi, or intention to bring cohabitation permanently to an end, may be revealed not in a single act but in the cumulative tenor of behaviour over time. Any deficiency in establishing either of the twin elements, or any indication that the petitioner is seeking to take advantage of his or her own wrong, is fatal to the plea of desertion and disentitles the party from claiming relief.”

The Court said that the evidence, both oral and documentary, leaves no manner of doubt that the parties gradually ceased to live together as husband and wife after December 2011, and that the separation continued uninterruptedly.

“Between 2014 and the filing of the petition in November 2017, there is not a shred of evidence to suggest any cohabitation, reconciliation, or even substantive communication between the parties. This prolonged silence and separation, spanning well over three years, in our view, appears to be a manifestation of the mental state of the mind of the parties to disengage from each other completely”, it added.

The Court held that the requirement of continuous desertion for more than two years stands fully and unambiguously satisfied prior to the filing of the Divorce Petition.

“On our independent assessment of the record, both oral and documentary, we find ourselves in full agreement with the findings of the learned Family Court. The Appellant’s conduct throughout is inconsistent with any genuine desire to continue or resume cohabitation”, it further observed.

The Court took note of the fact that the wife had no intention of resuming cohabitation despite having ample opportunity. It also said that the wife’s claim of constructive desertion, premised on alleged ill-treatment by the husband’s mother, lacks substantiation.

“References to friction and even to the reason for the suicide attempt remain uncorroborated by contemporaneous evidence such as police complaints, medical records, or credible third-party testimony. In the absence of such evidence, her allegations cannot amount to a legally justifiable cause for leaving the matrimonial home”, it added.

Conclusion

The Court reiterated that the offence of desertion commences when both the factum of separation and animus deserendi co-exist, though not necessarily from the beginning.

“… she only chose to file a petition for restitution of conjugal rights after the Respondent had already instituted divorce proceedings, thereby revealing the reactive rather than genuine nature of her actions. … we find no merit in the present appeal and are not persuaded to interfere with the well reasoned judgment of the learned Family Court. The decree of divorce granted under Section 10(1)(ix) of the Divorce Act, stands on firm legal and factual foundation and, accordingly, merits affirmation”, it concluded.

Accordingly, the High Court dismissed the Appeal and upheld the decree of divorce.

Cause Title- ABC v. XYZ (Neutral Citation: 2025:DHC:8306-DB)

Appearance:

Appellant: Advocates Zishan Alam Siddiqui, Akash, and Amisha Upadhyay.

Respondent: Advocate Francis Paul

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