Whether desertion can be tested by merely ascertaining which party left matrimonial home first?

 The desertion is not to be tested by merely
ascertaining which party left the matrimonial home first. If one spouse is
forced by the conduct of the other to leave, the desertion could be by such
conduct of other spouse and compelled to live separately.
19. In the decision reported as (2010) 4 SCC 476 Ravi Kumar vs Julmidevi
the Supreme Court has observed as under:-
“13. It may be noted only after the amendment of the said
Act by the amending Act 68 of 1976, desertion per se
became a ground for divorce. On the question of
desertion, the High Court held that in order to prove a
case of desertion, the party alleging desertion must not
only prove that the other spouse was living separately but
also must prove that there is an animus deserendi on the
part of the wife and the husband must prove that he
has not conducted himself in a way which
furnishes reasonable cause for the wife to stay away from
the matrimonial home.”
20. Thus, the facts above do show that appellant was forced by the conduct
of the respondent to leave the matrimonial home and that it is the respondent
who is guilty of constructive desertion and had made the appellant and her
daughter run from pillar to post even for their bare minimum maintenance and
had rather failed to prove the behavior of the appellant towards him was such
that it ever caused a reasonable apprehension in his mind that it was not safe
for him to continue the matrimonial relations with the appellant. The
respondent herein had failed to bring his case within the parameters of cruelty
and desertion as defined and as such, we set aside the impugned judgment
dated November 22, 2013 of the learned Judge, Family Court, Dwarka in HMA
No.444/2009 tilted ‘Sohan Singh Nehra vs Nisha Rani’.
 IN THE HIGH COURT OF DELHI AT NEW DELHI

Dated : January 06, 2017
 MAT.APP.(F.C.) 82/2014
MRS. NISHA RANI 
v
SH. SOHAN SINGH NEHRA 
CORAM:
 MR. JUSTICE PRADEEP NANDRAJOG
 MR. JUSTICE YOGESH KHANNA

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How to appreciate evidence when plea of desertion is taken in divorce petition?

Taking into consideration the facts deduced in the cross examination of the respondent coupled with version of the appellant that remains unchallenged during cross examination, it certainly leads to an inference that the parties resided together even after 15.2.2003 that falsify and belie plea of the respondent that the appellant never returned to the matrimonial home after 15.2.2003. It may not be true that the appellant remained residing with her husband uptil 17.1.2006 in South City-II but in view of discussion made hereinbefore, the parties resided together after 15.2.2003 in House No. 774, Sector-17 Gurgaon in the year 2007. As the parties resumed cohabitation and resided together in the year 2007, the plea of desertion is no longer available to the respondent for grant of decree of divorce. This apart, in order to establish plea of desertion, the petitioner has to prove that apart from the factum of physical separation for a continuous period of more than two years before institution of proceedings, the guilty spouse had been residing separately with an intent to put the marital ties to an end. The appellant-wife alongwith children came to her husband in the year 2005 as well as in the year 2007. She stayed with her husband for certain days in the parental house of the respondent. Conversely, there is no evidence adduced by the respondent as to what effort was made by him to bring his wife back to matrimonial home. There is nothing on record suggestive of the fact that the appellant-wife ever intended to put the marital ties to an end. She has always remained ready to save her matrimony for the sake of children as well as herself and her intention in this direction gets approval from the fact that she has contested the divorce proceedings all throughout and did not agree for divorce on any terms when we had an interaction with the parties on two occasions before hearing the arguments.

Punjab-Haryana High Court

Indra Bhardwaj vs Rajesh Bhardwaj on 29 October, 2015

Citation:2016(5) ALLMR(journal)9

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How to appreciate evidence in case of divorce on ground of desertion?

Desertion is a matter of inference to be drawn from the facts
and circumstances to each case. The inference may be drawn
from certain facts which may not in another case be capable of
leading to the same inference; that is to say, the facts have to
be viewed as to the purpose which is revealed by those acts or
by conduct and expression of intention, both anterior and
subsequent to the actual acts of separation. If in fact, there has
been a separation, the essential question always is whether that
act could be attributable to an animus deserendi. The offence of
desertion commences when the fact of separation and the
animus deserendi co- exist. But it is not necessary that they
should commence at the same time. The de facto separation
may have commenced without the necessary animus or it may
be that the separation and the (animus deserendi) coincide in
point of time; for example, when the separating spouse
abandons the marital home with the intention, express or
implied of bringing cohabitation permanently to a close. The law
in England has prescribed a three years period and the Bombay
Act prescribed a period of four years as a continuous period
during which the two elements must subsist. Hence, if a
deserting spouse takes advantage of the locus poenitentiae thus
provided by law and decides to come back to the deserted
spouse by a bona fide offer of resuming the matrimonial home
with all the implications of marital life, before the statutory
period is out or even after the lapse of that period, unless
proceedings for divorce have been commenced, desertion comes
to an end, and if the deserted spouse unreasonably refuses to
offer, the latter may be in desertion and not the former. Hence it
is necessary that during all the period that there has been a
desertion, the deserted spouse must affirm the marriage and be
ready and willing to resume married life on such conditions as
may be reasonable. It is also well settled that in proceedings for
divorce the plaintiff must prove the offence of desertion, like
and other matrimonial offence, beyond all reasonable doubt.
Hence, though corroboration is not required as an absolute rule
of law the courts insist upon corroborative evidence, unless its
absence is accounted for to the satisfaction of the court. In this
connection the following observations of Lord Goddard CJ. in
the case of Lawson v. Lawson, 1955-1 All E R 341 at p. 342(A),
may be referred to :-
"These cases are not cases in which corroboration is required as
a matter of law. It is required as a matter of precaution....... "
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO(HMA) No. 445/2015

Decided on: July 13, 2016

Reeta Devi 
V
Manohar Lal
Coram:
Hon’ble Mr. Justice Rajiv Sharma, Judge.
Citation:AIR 2016 (NOC) 634 HP

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Whether burden of proof is on Husband to prove that wife deserted him without cause?

 Desertion is a matter of inference to be drawn from the facts and circumstances of each case. What amounts to desertion in a particular case depends upon the circumstances and mode of life of the parties. In any case mere physical separation between spouses for a continuous period of not less than two years immediately preceding the presentation of the petition would not constitute desertion. The factum of desertion and the intention of a party to bring cohabitation permanently to an end are the essential ingredients of legal desertion. In other words, the essence of desertion means the intentional permanent abandonment of one spouse by other without that other's consent and without reasonable cause. Insofar as burden is concerned it is always on the petitioner in proving the factum of desertion as well as animus deserendi, which the petitioner has to establish to the satisfaction of the court. Even if the wife, where she is a deserting spouse, does not prove just cause for her leaving apart, the petitioner-husband has still to satisfy the court that the desertion was without cause. Therefore, in a petition for divorce by the husband on the ground of desertion, it is not enough if it is established that the wife left the matrimonial home without reasonable excuse and against wishes of husband but indeed, it must further be shown that the intention was to bring cohabitation permanently to an end.

IN THE HIGH COURT OF BOMBAY

Family Court Appeal No. 110 of 2006

Decided On: 04.08.2008

 Arundhati Deepak Patil  Vs. Deepak Bhaurao Patil

Hon'ble Judges/Coram:

B.H. Marlapalle and D.B. Bhosale, JJ.
Citation; 2008(6) MHLJ 554 Bom

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When husband is entitled to get divorce on ground of desertion by wife?

Learned counsel for the appellant is unable to point out any evidence on record, which would prove that appellant was not able to join the company of her husband due to an act/misconduct on his part. A perusal of Ex. A1, i.e. judgment dated 07.05.1982, under Section 9 of the Act reflects the plea of the appellant that her husband is living in open adultery. The allegation has been held to be an afterthought and a cooked up story as her allegations remain unsubstantiated. It was specifically held that appellant wife left the company of her husband without any reasonable cause. The same allegations were levelled by her in the present proceedings, under Section 13 of the Act but once again remain unsubstantiated. It was rightly held, by the learned trial Court, that appellant has deserted the respondent without reasonable cause and that she refused to comply with decree dated 07.05.1982, passed under Section 9 of the Act. The contention of learned counsel for the appellant that provisions of Section 23 of the Act are applicable in the present case is unacceptable in the present factual matrix.

 The argument that the decree under Section 9 was never executed by the appellant is devoid of any merit, hence unacceptable. A Full Bench of this Court in Bimla Devi's case (supra) has clearly observed that only a symbolic execution of a decree, is provided for. There is no provision by which the physical custody of the spouse who has suffered the decree can be made over to the spouse who obtained the decree for restitution of conjugal rights. Thus, it cannot be said that lack of bona fides on the part of the respondent is reflected due to this reason. The respondent-husband has succeeded in proving desertion on the part of the appellant, who has been unable to prove any reasonable or sufficient cause to withdraw from the company of the appellant. Learned counsel for the appellant is unable to point out any illegality or infirmity in the impugned judgment and decree which calls for interference by this Court.

IN THE HIGH COURT OF PUNJAB AND HARYANA

FAO No. 5-M of 1994 (O&M)

Decided On: 07.01.2016

 Lakhvinder Kaur

Vs.

 Gurmel Singh

Hon'ble Judges/Coram:Rajive Bhalla and Lisa Gill, JJ.

Citation:2016 (3) ALLMR(JOURNAL)94

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Whether husband is entitled to get divorce on ground of desertion if he has not made efforts for restitution of conjugal rights?

 From the careful reading of the written statement of respondent/wife her evidence before the Court, grounds taken in the appeal memo, before the Lower Appellate Court and further the stand taken before this Court is that the respondent/wife is ready for co-

habitation, if the appellant allows the respondent to come to the matrimonial house. Therefore, the stand of the respondent/wife throughout the proceedings is that, she is ready for co-habitation. The Trial Court has totally ignored this statement of the respondent wife.

The Trial Court did not consider at all the contention of the respondent wife that due to harassment and conduct of the appellant/husband, respondent wife was forced to leave  house. From careful perusal of the findings recorded by the Lower Appellate Court, the Lower Appellate Court made each and every efforts and endeavour to find out truth. The Lower Appellate Court has considered entire evidence in detail and held that the husband is not entitled for decree of divorce.

Bombay High Court

Shri Sunil Ramnath Argade vs Sau. Latabai Sunil Argade on 30 March, 2012

Bench: S. S. Shinde

Citation; 2012(4) MHLJ 274 Bom

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Desertion-burden of proof

In a case relating to desertion not only has it to be proved that the other spouse is living separately but also that there is animus deserendi. The husband also has to prove that on his part there has been no such conduct which gives reasonable cause to the wife to leave her matrimonial home.

imachal Pradesh High Court

Julmi Devi vs Ravi Kumar on 7 June, 2005

Equivalent citations: I (2006) DMC 210

Author: D Gupta

Bench: D Gupta

JUDGMENT
Deepak Gupta, J.
1. This appeal under Section 28 of the Hindu Marriage Act has been filed by the wife against the judgment and decree passed by the learned District Judge, Mandi in Hindu Marriage Petition No. 20 of 2002 dated 27.10.2004 whereby he has granted a decree of divorce in favour of the husband.
2. The facts of the case necessary for decision of the appeal are that the marriage between the parties took place on 13.12.1988. One daughter was born out of the wed-lock. After the birth of the daughter the wife left for her parental village to live with her parents. According to the allegations made in the petition for grant of divorce, the wife from the very beginning, was not interested in living with the husband and she did not permit the husband to have sexual relations with her. The wife was employed whereas the husband was unemployed at that time.

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