Wife Being Forced To Leave Her Matrimonial House Won’t Come Under Fold Of Desertion: Jharkhand High Court

The Jharkhand High Court held that if the wife has been forced to leave her matrimonial house, in such circumstances parting away from the matrimonial house will not come under the fold of desertion.

The Court held thus in an Appeal filed under Section 19(1) of the Family Courts Act, 1984, challenging the Judgment of the Principle Judge, by which the Petition preferred under Section 13(1)(i), (i-a), (i-b) of the Hindu Marriage Act, 1955 (HMA) by the husband against the wife was allowed by granting Divorce Decree.

A Division Bench of Justice Sujit Narayan Prasad and Justice Arun Kumar Rai observed, “It is evident from the interpretation of desertion that the desertion parting away from the matrimonial house will not amount to desertion rather reason of parting away amounts to desertion, i.e., if the wife on her own has left the matrimonial house then certainly it will come under the fold of desertion, but if the wife has been forced to leave her matrimonial house, in such circumstances parting away from the matrimonial house will not come under the fold of desertion.”

The Bench reiterated that ‘desertion’ means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause.

Advocate Rahul Kumar represented the Appellant/Wife, while Advocate Bhashwat Prakash represented the Respondent/Husband.

Case Background

The Appellant-wife was married to the Respondent-husband in accordance with Hindu rites and customs in the year 2009. The husband was an Advocate practicing in the Civil Court, Jamshedpur and he was suffering from physical deformity by birth in his right hand as well as in his left leg after a road accident. Their marriage was solemnized after due enquiry made by the family of wife and after being satisfied that deformity would not imperil the normal life of the parties. The said marriage was an arranged marriage after due thought. A female child was begotten to them in 2010. Allegedly, the wife became infuriated to see the deformity of the husband and refused to live with him from the very first day. It was alleged that during the period of six months, she attempted to finish her life by drinking mosquito repellent liquid and consequently threatened the husband and his family. It was further alleged that the wife started quarrelling with mother and father of the husband on trivial issues.

It was further alleged that the wife started quarrelling with the husband on trivial issues and started abusing him by using unbearable filthy language and when any female client visited in his chamber, she started quarrelling on the basis of doubt. As per the plaint, the husband asked the wife to save the marriage on all occasions and taking advantage of this unfortunate condition, she insisted and compelled him to leave her at her parents’ house for child birth, despite better facilities and better care available at his house. Allegedly in 2011, when the husband and his family members did not agree to leave the matrimonial house, she became angry and left that with her daughter and started living at her parents’ house. On the ground of cruelty and desertion, the husband filed a suit before the Family Court and prayed for a decree of dissolution of the marriage between him and his wife. The Family Court granted divorce to the husband and this was under challenge before the High Court.

Reasoning

The High Court in the above context of the case, said, “On the basis of the discussion made hereinabove and taking into the consideration the aforesaid settled position of law as also the factual aspect as discussed and referred hereinabove, is of the view that the learned Family Court has not appreciated the issue of cruelty in proper manner and the alleged act of cruelty is mere wear and tear and not pertaining to element of cruelty coming under the fold of definition of the word “cruelty”.”

The Court noted that desertion 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; the state of things may usually be termed, for short, ‘the home’.

“There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion”, it added.

The Court observed that the offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least two years immediately preceding the presentation of the Petition or, where the offence appears as a cross-charge, of the answer.

“Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. desertion is a continuing offence. … It is, thus, evident from the aforesaid reference of meaning of desertion that the quality of permanence is one of the essential elements which differentiates desertion from wilful separation”, it emphasised.

The Court clarified that if a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion.

“For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end. … 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. In such a situation, the party who is filing for divorce will have the burden of proving those elements”, it further explained.

The Court said that the deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end i.e., there should be animus deserendi on the part of the deserting spouse.

“There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. … She has deposed that her husband had brought her to her maike by saying that he would arrange a house on rent where they would continue their conjugal life peacefully. After some time, when the appellant asked the respondent about the rented house, he told her that he had filed a suit for divorce in the Court”, it also noted.

The Court remarked that the wife is still ready to live with the husband as she does not want divorce. It held that the Family Judge erred in coming to the conclusion that the factum of the desertion has well been proved, which suffers from an error.

“This Court is of the view based upon the consideration that the word desertion as has been interpreted by the Supreme Court that all types of separation cannot come under the fold of desertion as has been taken into consideration by the learned Family Judge in the facts of the present case, rather the desertion is required to be proved and the same can only be said to be proved if evidence to that effect has come that it is the wife, who on her own will, has left the matrimonial house or the house of the husband”, it added.

Conclusion

Furthermore, the Court observed that the wife if left the house of the husband on the ground of alleged torture and cruelty, then such type of separation will not come under the definition of desertion, but the Family Judge has not taken into consideration such aspect of the matter.

“This Court, therefore, is of the view that it is a case where consideration is to be required to be there on the ground of perversity and, according to our considered view, the judgment impugned cannot be said to be well based upon the consideration of the element of cruelty and desertion as per the interpretation made by the Hon’ble Supreme Court with respect to the element of cruelty and desertion in the judgment referred hereinabove”, it concluded.

Accordingly, the High Court allowed the Appeal and quashed the divorce decree.

Cause Title- ABC v. XYZ (Neutral Citation: 2025:JHHC:38110-DB)

Appearance:

Appellant: Advocate Rahul Kumar

Respondent: Advocates Bhashwat Prakash and Anurag Kashyap.

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