Nitish Banka

    • Desertion as a ground for divorce -What to prove?

    Divorce by Desertion

    Desertion is also ground for divorce in India, but the most difficult part is how to prove desertion in court of law. A layman may think desertion as his/her spouse is living separately for the period of 2 years that’s it.

    But actually what courts in India require are the 4 things which areto be established by the spouse who is seeking divorce on this ground.

     

    1.. Animus deserendi-This means the intention to desert, if husband or wife decides to leave the martial co habitation as they does not want to continue with martial obligations or may be called husband/wife under the eyes of the society this means they have developed animus deserendi, once this intention is formed this fulfills one criteria for proving desertion.

    Now this intention can be from both sides or may be a constructive animus deserendi, In constructive animus deserendi when one of the spouse asks the other spouse to leave the house or leave him/her that is constructive animus deserendi other the other form is that the a spouse can leave the other spouse with his/her own will that is willful desertion. in both the situation the affected spouse i.e the spouse which was made to leave in the case of constructive animus deserendi or the spouse which was left alone can pursue the proceeding for divorce if other requirements are satisfied.

    2. Separation- Now the  Animus deserendi is followed by actual separation, now this separation can be physical or mental one, normally itrs the physical one here the actual action takes place merely forming an intention or telling a spouse that I will leave you is not suffice if it is not followed by some action. Merely an action without the intention is also not suffice both intention to leave and followed by action is mandatory in proving desertion.Sometime there is first physical separation and then followed by intention and sometimes its vice versa, both should takes place for a continuous period of 2 years.

    3. No reasonable just cause to leave- There should not be any reasonable cause available to the spouse who is leaving the matrimonial ties, generally cruelty is alleged by defending spouse to defeat the proceedings of desertion in such cases the burden is on the defending spouse to prove cruelty by examining witnesses and medical examinations etc. But if defending spouse fails to prove any of the just causes then this ingredient stand proved.

    4. without the consent- if the deserting spouse does not consents such desertion this final ingredient also stands proved, but how to prove this ingredient? now let us suppose a spouse leaves then there must be continuous efforts from the other side to b ring back the spouse, it should not be the case where the other spouse sits mutely while the other spouse has deserted. efforts should be made to render reconciliation. here contact with parents, mother father or other relatives are essential. reconciliation at its own level at first and then involvement of relative is essential, this would satisfy the court that deserted spouse never consented for such a desertion.

    Proving all the aforementioned ingredients are essential to prove desertion i n court, if any one element is missing divorce cannot be granted. Gene really cases fall short in 3rd and 4th ingredient. merely living separately even willfully does not guarantee divorce to deserting partner.

    Judgements

    Now there are two views can be adopted by the courts

    The issue whether a case of desertion is made out or not, depends on the facts of each case and is a matter of drawing an inference on the basis of evidence on record. The appellant who was examined as PW-1, in his evidence, has stated that the marriage between the parties was performed on 22.11.2000. He has stated that the respondent deserted the matrimonial home in May 2001. The respondent who has been examined as RW-1, in her cross-examination, has admitted that she has stayed in the matrimonial home only for a period of 4 months from the date of marriage. Thus, from the evidence on record, it is evident that the appellant and respondent are residing separately after 4 months of their marriage. The Family Court, also in paragraph 26 of the judgment, has found that the parties are residing separately for more than 5 years. It is pertinent to note here that the respondent neither sent a notice nor filed a petition under Section 9 of the Act seeking restitution of conjugal rights. From the aforesaid conduct of the respondent, it can safely be inferred that she was not interested in joining the matrimonial home. The parties now are admittedly residing separately for past about 21 years.

    In the result, the judgment and decree passed by the Family Court dated 13.01.2014 is set aside and the marriage between the parties is dissolved by a decree of divorce on the ground of desertion under Section 13(1)(ib) of the Act. The appellant is under an obligation to pay the amount of arrears of maintenance due to the respondent under the proceeding filed under the Protection of Women from Domestic Violence Act. Therefore, taking into account the income of the appellant which was stated to be Rs. 10,000/-in the year 2014, we direct the appellant to pay a sum of Rs. 10,00,000/-inclusive of the arrears of maintenance due to the respondent, before the Registry of this Court within a period of three months from today.

    N.P. Rajesh vs. Hemalatha (18.10.2022 – KARHC) : MANU/KA/4841/2022

     

    The appellant/husband had also raised ground that without sufficient reasons the respondent/wife had withdrawn herself from his company and left the matrimonial house. She had deserted him. The appellant/husband had alleged that on 02/05/2004, the respondent/wife quarreled with him by saying that she is desiring to do the job and she wants to terminate the pregnancy. After several attempts the respondent/wife had not returned back. The appellant/husband had adduced his evidence to support his contention. He testified that in the month of June i.e. on 07/06/2004 he contacted the respondent/wife by telephonic call and asked her to return at matrimonial house. Thereafter she called him on 10/07/2004 and asked him to come at her maternal house to fetch her back. Accordingly he went there. The sum and substance of his evidence is that after his attempts the respondent/wife and her father both denied to join the company of the appellant/husband by the respondent/wife for cohabitation. He specifically admitted during cross-examination that he never contacted either by telephonic call or letter to the respondent/wife. He relied on the letter which was addressed to the respondent/wife by him dated 05/12/2004. Admittedly, said letter was not received by the respondent/wife and it returned back to the appellant/husband as not claimed. Though he testified that he sent second letter dated 28/06/2005 but there is no evidence that said letter is received by the respondent/wife. The respondent/wife denied that she received any such letter. Admittedly, the appellant/husband had not issued any legal notice to the respondent/wife asking her to return for cohabitation. Though the appellant/husband had adduced the evidence of Ashok Pundalikrao Tidke which shows that he visited the maternal house of the respondent/wife along with the appellant/husband on 09/10/2012. Thus, there is no evidence that prior to 09/10/2012, the appellant/husband had visited the house of the respondent/wife to bring her back. The respondent/wife as well as her witnesses also admitted that the visit of the appellant/husband at the parents house of the respondent/wife on 09/10/2012. Though the respondent/wife admitted his visit but she denied that the appellant/husband came to fetch her back. Thus, the evidence is sufficient to show that from 2004 to 2012 the appellant/husband had not taken any efforts to bring the respondent/wife back for cohabitation. As already observed earlier he had also not adduced the evidence that the respondent/wife had terminated her pregnancy. On the other hand, the respondent/wife had come with the case that the appellant/husband as well as his sisters suspecting her character, therefore, she constrained to leave matrimonial house. Admittedly, no other reason came forward that the respondent/wife had left the house for other reason. The appellant/husband had suggested the reason that as she wants to do the job and, therefore, she left the house. It is evident that she expressed her desire to do the job after the marriage to her husband. She had completed her post-graduation. The expression of her desire could not be said to be abnormal as every qualified person wants to use the knowledge acquired by him or her. There is no evidence that for acquiring the said job her behaviour was rude and arrogant towards her husband. General allegation is made by the appellant/husband that she had harassed him. As per the allegation of the appellant/husband immediately after the marriage she started harassing him but the evidence shows that thereafter she stayed along with the appellant/husband for four years. From the said wedlock a child was begotten. The evidence of the appellant/husband shows that the respondent/wife not only stayed along with him at Mehkar but at matrimonial house at Buldhana along with other family members. The time and manner in which the appellant/husband harassed was nowhere stated. In the light of above circumstances, the reason mentioned by the respondent/wife to live separately appears more probable. She assigned the reason that not only the appellant/husband but his sisters used to suspect her character which constrained her to leave the matrimonial house. This evidence is to be accepted in the background that the respondent/wife stayed along with the appellant/husband for four years and never complained previously. The suspicion about her character by the appellant/husband constrained her to leave the matrimonial house. She had filed petition for restitution after the appellant/husband had filed petition for dissolution of marriage. She had not issued any notice to the appellant/husband. She filed petition for restitution of conjugal rights mentioning the reason that she constrained to leave the matrimonial house as her character was suspected. It is obvious that whenever a character was suspected, it is difficult for a woman to stay in a matrimonial house. This contention appears to be probable as no other reason came forward which made the respondent/wife to leave the matrimonial house after cohabitation of four years.

     

    Pundlik Martandrao Yevatkar vs. Ujwala (04.10.2022 – BOMHC) : MANU/MH/3534/2022

     

    After giving thoughtful consideration to the controversy we are of the view that the appellant/husband failed to prove the ground of cruelty to obtain a decree of dissolution of marriage. The manner in which the appellant/husband faced cruelty is not proved. Mere annoyance or irritation or normal wear or tear differences does not constitute cruelty. The cruelty should be such in which it is not reasonably accepted to live together. The appellant/husband has not proved the desertion by the respondent/wife. Merely because the respondent/wife staying separately an inference of desertion cannot be drawn. The marriage between the parties cannot be dissolved on the averments made by one of the parties that the marriage between them has broken down. The irretrievable breakdown of the marriage is not a ground by itself to dissolve it. As regards the allegation made by the appellant/husband are not believable. As observed earlier except the ground enumerated under Section 13 of Hindu Marriage Act, 1955 the marriage solemnized under the Act cannot be dissolved on any other ground.

    Pundlik Martandrao Yevatkar vs. Ujwala (04.10.2022 – BOMHC) : MANU/MH/3534/2022

    Nitish Banka

    ( Advocate Supreme court)

    [email protected]