“Desertion is not the withdrawal from a place, but from a state of things.”
Marriage is considered a sacrament and preserved as a social institution Section 13(1) (ib) of the Hindu Marriage Act, 1955 deals with Desertion As Ground For Divorce, and the explanation of the same reads: “The expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent of or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly”. There are mainly four basic elements which are primarily to be satisfied to constitute desertion. The first two are to be present in the deserting spouse.
- The fact of separation (factum deserdendi)
- The intention to desert ( animus deserdendi)
- Absence of consent
- The absence of conduct which led to the other spouse leaving the matrimony
IN SEPTEMBER 14,2020 Jharkhand high court held that ‘Desertion’ has to be willful and voluntary for a valid ground for divorce under S. 13 of the Hindu Marriage Act, 1955; Under Legal principle “No one can take a benefit of his own fault” applied
Sanjay Kumar v. Suman Kumari,2020 SCC Jhar 773
Facts of The Case
The facts of the case are such that the marriage of the appellant and his wife was solemnized in the29-01-2007 as per Hindu rites and rituals in the presence of all family friends and relatives and two children are born out of the wedlock1 son & 1 daughter. The appellant alleged that his wife has been living separately and on numerous incidents caused mental agony to the appellant. He has further alleged in the appeal that the acts of the wife amount to cruelty and desertion of the wife. A suit was filed by the husband for divorce under Section 13 of the Hindu Marriage Act, 1955 on grounds of cruelty, desertion, and mental incapacity of the respondent-wife. The Trial Court decided the matter in favor of the wife and aggrieved by the same, the instant appeal was filed challenging the same order.
Also Read: Cruelty As Aground of Divorce
The appellant represented himself in person and submitted that the wife behaved psychic and rudely and treated him and his parents with utmost cruelty. He cited various incidents to support his argument along with two witnesses, one himself and his mother, namely, Kausalya Devi but did not produce any documentary evidence. The wife went to her parents’ home on 07-09-2010. The appellant wasn’t allowed to meet the wife & son which is cruelty. The wife lodged a complaint at Tisri P.S. on 12-05-2011, u/s 498A/34 of I.P.C& 3/4 of Dowry Prohibition Act. He got bail after the compromise between the parties. Desertion As Ground For Divorce
Even after that, the wife became more intense & her psychic behavior endangered the life of the appellant & his son. When the appellant got his job at Ranchi, they started living as husband & wife again, but she treated him with cruelty. His wife lodged a false criminal case against him u/s 498A & left him on 12-07-2014 out of her own will & since then they are living separately which is desertion. Desertion As Ground For Divorce
Also Read: Other Grounds and Procedure of Divorce in India
The wife contested that the appellant demanded a dowry of Rs.2,00,000 & car which could not be fulfilled, so he treated her with cruelty. She lived at her parent’s house after the birth of the first child, because he was not taking her back. She didn’t refuse to get his father treated, rather she performed all her obligations towards them. F.I.R was filed u/s 498A & 3/4 of Dowry Prohibition Act because appellant was harassing her in which she accepted the compromise for saving her marriage. Desertion As Ground For Divorce
Submission By Counsel
Appellant’s Submission:
The learned counsel appearing for the appellant submitted:
- That the court judgment and decree are illegal & against the evidence.
- That his wife filed multiple criminal cases against him, for which he had to undergo jail, which is cruelty.
- That she had deserted her since 12-07-2014 & six years have passed but still, no case of restitution of conjugal rights was filed by the respondent.
- That there is an irretrievable breakdown of the marriage, therefore decree of divorce should be passed.
Respondent’s Submission:
The learned counsel appearing for the respondents submitted:
- That the Court has discussed evidence on both sides & then rightly decided the issues against the appellant.
- That there is no illegality in the judgment & decree so the appeal should be dismissed.
- That the wife wishes to lead a happy conjugal life but her husband is not willing to keep her.
Counsel Sujeet Neepulam representing the respondent-wife denied allegations of cruelty, desertion, and mental illness and submitted further that her actions of leaving home and staying with parents are not willful as the appellant and his family was demanding dowry, refusing which she was ousted from the marital home and brought back and ousted again on many occasions. Four witnesses, namely, Ashok Saw, Naresh Saw, Praveen Kumar, and herself were examined to support her argument along with documentary evidence i.e. a mutual divorce application dated 13-07-2009 sent by the husband to wife after signing, a letter dated 30-07-2010 to her father giving threat, copy of an FIR instituted by the respondent-wife under Section 498 A of Penal Code, 1860 and Section 3/4 of the Dowry Prohibition Act, 1961 compromise copy after the appellant was arrested subsequent to the filing of FIR and other pertinent documents to support her plea. It was further submitted that the respondent is still willing to lead a respectable conjugal life with her husband, but the husband is not willing to keep her.
Court Held
The Court observed that the appellant was unable to present any substantial evidence except oral evidence of his and his mother whereas the respondent-wife presented various documentary proofs which demolish the case of cruelty from her side instead makes it clear by looking at the mutual divorce application and a written letter of threat to her father or the fact that she compromised to secure bail for the petitioner is enough to indicate the willingness of the respondent-wife to resume the respectable conjugal life with the appellant.
The court relied on judgments titled Jorden Dinged v. S.S. Chopra, 1985 3 SCC 62 held that any husband desirous to get rid of his wife may get the desired result by driving out his wife from the matrimonial home by force or creating a situation and thereafter taking the plea of desertion for more than two years. The law is clear that if one of the parties to the matrimonial home, voluntary and without any plausible explanation has left the matrimonial home giving no option to the other party, then it amounts to desertion. Desertion is a willful and voluntary act by the party to leave something without any rational reason. In the present case, the husband is at fault and this is the reason for the separate living of both the parties. Hence, the argument that living separately itself is sufficient in the eyes of law for granting the divorce is not acceptable.
Jharkhand High Court: A Division Bench of H.C. Mishra and Rajesh Kumar JJ., rejected the prayer and dismissed the appeal being devoid of merit. In view of the above, the decree for divorce rejected an appeal dismissed.
Author: This article was written by Ishmeet Kaur, B.A. LLB, student of Government Mohindra Collage, Patiala.
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