Jharkhand High Court: Spouse Abandoning In State Of Temporary Passion Without Intending To Permanently Cease Cohabitation Will Not Amount To Desertion

The Court dismissed the Appeal filed by a husband under Section 19(1) of the Family Court Act, 1984, against the Order of the Family Court, which dismissed the husband’s petition seeking a decree of divorce against his wife under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955 (HMA), on the grounds of cruelty and desertion.

A Division Bench of Justice Sujit Narayan Prasad and Justice Rajesh Kumar held, “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. 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.”

Advocate Sanjay Kumar appeared for the Appellant, while Senior Advocate Rajeeva Sharma represented the Respondent.

Brief Facts

The husband alleged that the wife was never interested in living in his joint family and never paid respect to her in-laws. He claimed his parents were ailing, but the wife never took care of them. He further alleged that she always tried to create nuisance on trivial issues and wanted to live separately.

Court’s Reasoning

The High Court explained that the definition of ‘desertion,’ as defined under Section 13 of the HMA, meant the desertion of a party by the other party to the marriage “without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage.”

“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,” the Bench explained.

The Court also stated, “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.”

Consequently, the Court ordered, “The learned Family Judge, on consideration of both the issues, has not found the ground for dissolution of marriage and therefore, dismissed the suit…This Court, based upon the aforesaid discussion, is of the view that the appellant/petitioner has failed to establish the element of perversity in the impugned judgment as per the discussion made hereinabove, as such, the instant appeal deserves to be dismissed.”

Accordingly, the High Court dismissed the Appeal.

Cause Title: A v. R (Neutral Citation: 2025:JHHC:12141-DB)

Appearance:

Appellant: Advocate Sanjay Kumar

Respondents: Senior Advocate Rajeeva Sharma; Advocate Om Prakash

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