Desertion Without Reasonable Cause Disqualifies Wife from Past Maintenance: Kerala High Court
Court says as per Section 37 of the Divorce Act, 1869 before awarding alimony to a wife, the court has to consider her conduct
Justice Sathish Ninan, Justice P. Krishna Kumar, Kerala High Court
The Kerala High Court has set aside past maintenance granted to a wife noting that a divorce decree passed against her on the ground of desertion had become final. However, the Court clarified that this does not affect her independent right to recover gold ornaments and money entrusted at the time of marriage.
The bench said that once the finding of desertion became final, it necessarily meant the wife had left without reasonable cause. Under Section 37 of the Act, her conduct had to be considered, and having found desertion, the trial court should not have granted her past maintenance.
A bench of Justice Sathish Ninan and Justice P. Krishna Kumar while referring to A:Husband v. B:Wife 2010 (4) KHC 435 that interprets the expression “cruelty” under Section 10 of the Act, observed, “The same reasoning applies with equal force to the expression “desertion”. Interpreting the term “desertion” under the Act in a strictly literal sense would result in hostile discrimination between similarly situated spouses governed by different personal laws, without any rational nexus, and would infringe Article 21 by compelling cohabitation in circumstances that are unjust, unsafe, or inconsistent with dignity and personal autonomy. Therefore, the expression “desertion” occurring in Section 10 of the Act must receive a purposive and constitutionally compliant interpretation. We also notice that a similar view has been expressed by the Calcutta High Court in Adelaide Mande Tobias v. William Albert Tobia (AIR 1968 Cal.133)”.
“When the finding that the respondent has deserted the appellant became final, it also means she deserted him without any reasonable cause or justification. It is relevant to note that, as per Section 37 of the Act, before awarding alimony to a wife, the court has to consider her conduct. Having found that the respondent deserted the appellant, the trial court ought not have awarded past maintenance to her. To the above extent, the impugned judgment is liable to be interfered with”, the court further observed.
Advocate M.P. Ramnath appeared for the petitioner and Advocate N.K. Subramanian appeared for the respondent.
In the present matter, the marriage was solemnised on 08-06-2003 in accordance with the religious rites and customs prevailing in the Christian community. However, the wife returned to her parental home during pregnancy, and allegedly never returned. The parties have been living separately since then. Thereafter, due to matrimonial disputes, the parties lead cross proceedings before the Family Court.
The husband then later sought divorce, while the wife approached the Family Court for return of money allegedly entrusted at marriage, return of gold ornaments and sought past maintenance for herself and the minor child.
Subsequently, the Family Court granted divorce on the ground of desertion and also ordered return of ₹2 lakh, 28 sovereigns of gold, and past maintenance to both wife and child.
Now, the High Court after considering the facts and circumstances in the matter, noted that: the divorce decree on the ground of desertion had become final; even though the Divorce Act, 1869 does not expressly say “desertion without reasonable cause”, the term must be interpreted constitutionally to mean abandonment without justification, in line with equality and dignity principles.
Therefore, the bench upheld maintenance awarded to the minor child while has set aside past maintenance granted to the wife.
Cause Title: X v. Y [Neutral Citation: 2026:KER:6855]
Appearance:
Petitioner: M.P. Ramnath, P. Rajesh, S. Sandhya, Uma R. Kamath, Advocates.
Respondent: N.K. Subramanian, Advocate.