Jharkhand High Court: Spouse Abandoning In State Of Anger Or Disgust Without Intending Permanently To Cease Cohabitation Won’t Amount To Desertion

The Jharkhand High Court held that if a spouse abandons the other spouse in a state of anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion.

The Court held thus in an Appeal filed by a man challenging the Judgment of the Family Court, which dismissed his Suit under Section 13(1), (i-a), (i-b) & iii of the Hindu Marriage Act, 1955 (HMA) for a Decree of divorce.

A Division Bench comprising Justice Sujit Narayan Prasad and Justice Rajesh Kumar observed, “It is, thus, evident from the aforesaid reference of meaning of desertion that the quality of permanence is one of the essential elements which differentiate desertion from wilful separation. 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.”

The Bench said that the evidence of other witnesses or the circumstances which relates to the behaviour of the spouse can be considered by the Court as that can help strengthening the opinion or create probability that the opinion has no justification and it is weak.

Advocate Ankit Vishal appeared on behalf of the Appellant/husband while APP Satish Kumar Keshri appeared on behalf of the Respondent/wife.

Facts of the Case

The Appellant-husband’s marriage was solemnized with the Respondent-wife as per Hindu rites and customs in 2017 and after her marriage and upon her ‘Vidai’, she came to reside at her matrimonial house. It was alleged that after a brief period of stay, the wife began to complain about pain in her abdomen and told the husband that she was suffering from abdominal pain since before marriage and after taking injection, the pain used to subside. The husband who was working in Delhi in a private job, had taken the wife to Delhi where he took her to a hospital for treatment. MRI was performed and in the scan a tumour was detected in the womb of the wife. As per the medical advice, when the husband got his wife admitted in a hospital at Delhi, then the father and the brother of the wife refused to get her operated upon at Delhi and stated that they would get her treated on their own.

It was alleged that the parents and brother of his wife had got her married to him through fraud after active concealment of illness. Allegedly, the wife used to threaten the husband of committing suicide since the operation was not performed. It was further alleged that the wife used to abuse him and inflicting physical blows and quarrels with him. It was also alleged that one day she slipped out of the husband’s house and remained missing for 2 days. Allegedly, there were no physical relations and cohabitation between the husband and the wife since after six months of marriage and as the wife was living in her parental house, he did not enjoy companionship or cohabitation with his wife which has made his marriage a mockery and he has been subjected to the social ridicule. The Family Court decreed the Suit against the husband and in favour of the wife, and being aggrieved, the husband was before the High Court.

Reasoning

The High Court in view of the facts and circumstances of the case, noted, “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 Court added that 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.

“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. In other words, 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”, it further said.

The Court also noted that the Family Court has categorically held that no documentary evidence has been adduced by the husband in order to prove the mental illness of the wife and therefore, the Family Court has also decided this issue against him.

“… it is not necessary that mental disorder is incurable. However, the mental disorder must be of such kind and extent that the Court needs to be satisfied that it is not advisable to ask the petitioner to live with the respondent. The scope shows that there is no limit to the kind of mental disorder as no specific kind is mentioned. However, the term “has been suffering” shows that the period of illness must not be too short or the petition should not be based on one or two instances showing such mental disorder”, it enunciated.

Conclusion

Moreover, the Court emphasised that as psychiatrist is expected to give evidence on the basis of the examination of the patient done by him, the symptoms noted by him, the treatment and the follow up treatment given by him and the record created by him needs to be considered both for corroboration and contradiction purpose.

“All mental abnormalities are not recognised as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law. … it appears that the aforesaid ground of mental illness has been raised by the appellant husband on the flimsy ground and taking in to consideration the aforesaid factual aspect the learned Family Court has rightly decided the said issue against the plaintiff husband as such requires no interference by this Court”, it concluded.

Accordingly, the High Court dismissed the Appeal and upheld the Family Court’s Judgment.

Cause Title- ABC v XYZ (Neutral Citation: 2025:JHHC:14956-DB)

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