Whether the court can refuse to grant maintenance to wife if divorce decree was granted on the ground of desertion?

 In the case of Rohtash Singh (supra), the marriage was dissolved on the ground of desertion. The prayer made by the wife for maintenance was opposed on this ground. The Hon'ble Apex Court has held that the wife is entitled to claim the maintenance from former husband, if she cannot maintain herself and remains unmarried. It is held that the decree of divorce granted on the ground of desertion in favour of the husband cannot be treated as a bar to the wife to claim the maintenance from the husband as a divorced woman. In my view, the law laid down is a complete answer to the submissions advanced on this point by the learned advocate for the respondent. I, therefore, conclude that merely because of the decree of divorce on the ground of desertion and cruelty, the husband would not be absolved of his duty to pay the maintenance to the wife under Section 125 of the Cr.P.C. {Para 14}

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Revision No. 216 of 2019

Decided On: 12.01.2023

Amit Vs. Rita

Hon'ble Judges/Coram:

G.A. Sanap, J.

Citation: MANU/MH/0103/2023.

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Whether court can refuse to give a decree for divorce on the ground of desertion if the wife comes to her matrimonial house for one day due to the death of her mother in law?

 The perusal of the respondent’s evidence does not disclose any effort made by her to resume the matrimonial relationship. She has not filed a petition for restitution of conjugal rights. 

11. Merely because on account of the death of the appellant’s mother, the respondent visited her matrimonial home in December 2009 and stayed there only for one day, it cannot be said that there was a resumption of cohabitation. She has not stated that she came to her matrimonial home on 21st December 2009 with the intention to resume cohabitation. The intention on the part of the respondent to resume cohabitation is not established. Thus, in the facts of the case, the factum of separation has been proved. From the evidence on record, an inference can be drawn that there was animus deserendi on the part of the respondent. She has not pleaded and established any reasonable cause for remaining away from her matrimonial home.

12. Thus, in our considered view, the ground of desertion under clause (ib) of sub-section (1) of Section 13 of HM Act has been made out as the desertion for a continuous period of more than two years before the institution of the petition was established in the facts of the case. 

14. Hence, the impugned judgments are set aside. The Civil Appeal is allowed in part. The marriage solemnized between the parties on 17th June 2009 shall stand dissolved by a decree of divorce under clause (ib) of sub-section (1) of Section 13 of the Hindu Marriage Act, 1955.

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 1339 OF 2022

DEBANANDA TAMULI v. SMTI KAKUMONI KATAKY

Bench: AJAY RASTOGI; ABHAY S. OKA, JJ. 

Author: ABHAY S. OKA, J.

Dated: February 15, 2022 

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Whether a wife staying abroad for her job amounts to desertion or cruelty to her husband?

 The desire of the respondent to settle in Canada is actuated by the fact that it was the appellant who had first consciously decided to settle in the foreign country. As such, the wish of the respondent cannot be branded as an act of selfishness or the act on her part cannot be said to be unjustified. It is pertinent to note that it was the appellant’s initiative and desire to immigrate to Canada for better prospects. {Para 38}

39. Thus, in no way, it could be said to be cruelty meted out to the appellant by the deserting spouse. Moreover, except mere words of the appellant, no corroboration is forthcoming to buttress the fact of an attempt at conciliation being made by the family members of the respective families. The appellant could have produced some witnesses/ family members in support of his contention.

BOMBAY HIGH COURT

 FCA-162-2019

CORAM : UJJAL BHUYAN &

PRITHVIRAJ K. CHAVAN, JJ

PRONOUNCED ON : 24th June, 2021.

 [Per Prithviraj K. Chavan, J.]

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Supreme Court: Divorced wife can not be denied maintenance U/S 125 even if divorce was on ground of desertion

The short question raised in these appeals is whether a wife, who has been divorced by the husband, on the ground that the wife has deserted him, is entitled to claim maintenance Under Section 125 of the Code of Criminal Procedure, 1973 (Cr.P.C.).

 No doubt, as urged by Mr. Debal Banerjee, explanation II to Section 125 of the Code of Criminal Procedure by deeming fiction includes a divorced woman to be a wife and, therefore, a woman who has been divorced by her husband can still claim maintenance Under Section 125 of the Code of Criminal Procedure The question is how we should read the provisions of Sub-section (4) in this regard, especially when we deal with those women, against whom a decree for divorce has been obtained on the ground that they have deserted their husband. Once the relationship of marriage comes to an end, the woman obviously is not under any obligation to live with her former husband. The deeming fiction of the divorced wife being treated as a wife can only be read for the limited purpose for grant of maintenance and the deeming fiction cannot be stretched to the illogical extent that the divorced wife is under a compulsion to live with the ex-husband. The husband cannot urge that he can divorce his wife on the ground that she has deserted him and then deny maintenance which should otherwise be payable to her on the ground that even after divorce she is not willing to live with him. Therefore, we find no merit in the contention of Mr. Debal Banerjee.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 232-233 of 2015

Decided On: 19.09.2019

 Swapan Kumar Banerjee  Vs.  The State of West Bengal 

Hon'ble Judges/Coram:

Deepak Gupta and Aniruddha Bose, JJ.

Citation: AIR 2019 SC 4748

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Whether wife who has obtained divorce on ground of desertion is entitled to get maintenance?

Thereafter, in Rohtash Singh Vs. Ramendri & Ors . (2000) 3 SCC 180, this Court took a similar view:
"11. Learned counsel for the petitioner then
submitted that once a decree for divorce was
passed against the respondent and marital
relations between the petitioner and the
respondent came to an end, the mutual rights,
duties and obligations should also come to an
end. He pleaded that in this situation, the
obligation of the petitioner to maintain a
woman with whom all relations came to an end
should also be treated to have come to an end.
This plea, as we have already indicated above,
cannot be accepted as a woman has two distinct
rights for maintenance. As a wife, she is
entitled to maintenance unless she suffers from
any of the disabilities indicated in Section
125(4). In another capacity, namely, as a
divorced woman, she is again entitled to claim
maintenance from the person of whom she was
once the wife. A woman after divorce becomes a
destitute. If she cannot maintain herself or
remains unmarried, the man who was once her
husband continues to be under a statutory duty
and obligation to provide maintenance to her."
This view, which was taken by two-Judge Benches has
been confirmed in Manoj Kumar Vs. Champa Devi (2018) 12 SCC 748 by a three
judge bench, though, no specific reasons have been
recorded in the judgment. Mr. Debal Banerjee urged that
the matter requires reconsideration. We are not in

agreement with him for two reasons. Firstly, the view
taken in the first two judgments has been confirmed by a
three-judges Bench and, therefore, we cannot refer it to
a larger Bench.
Even otherwise, this view has been consistently
taken by this Court and the said view is in line with
both the letter and spirit of the Cr.P.C.
No doubt, as urged by Mr. Debal Banerjee,
explanation II to Section 125 of the Cr.P.C. by deeming
fiction includes a divorced woman to be a wife and,
therefore, a woman who has been divorced by her husband
can still claim maintenance under Section 125 of the
Cr.P.C. The question is how we should read the provisions
of sub-section (4) in this regard, especially when we
deal with those women, against whom a decree for divorce
has been obtained on the ground that they have deserted
their husband. Once the relationship of marriage comes to
an end, the woman obviously is not under any obligation
to live with her former husband. The deeming fiction of
the divorced wife being treated as a wife can only be
read for the limited purpose for grant of maintenance and
the deeming fiction cannot be stretched to the illogical
extent that the divorced wife is under a compulsion to
live with the ex-husband. The husband cannot urge that he
can divorce his wife on the ground that she has deserted
him and then deny maintenance which should otherwise be
payable to her on the ground that even after divorce she

is not willing to live with him. Therefore, we find no
merit in the contention of Mr. Debal Banerjee.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S).232-233 OF 2015

DR. SWAPAN KUMAR BANERJEE Vs  THE STATE OF WEST BENGAL 

DEEPAK GUPTA, J.
Dated:September 19, 2019.

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Whether a second divorce petition on the same grounds is maintainable after the dismissal of the first divorce petition?

On hearing learned counsel appearing on both sides, we find that the court below failed to examine as to whether the objection to the maintainability of O.P. required a preliminary hearing under Order XIV Rule 2 of the Code. It is true that grounds of desertion and cruelty were over again urged as independent grounds for dissolution of marriage in the subsequent O.P. also. Even if same grounds are taken in the subsequent proceeding for divorce, no bar of res judicata could apply as long as the cause of action for the subsequent proceeding remains to be different.

12. So far as grounds for dissolution in matrimonial matters are concerned, they are of continuing or recurring nature. A spouse who suffered dismissal of original petition for dissolution of marriage on the ground of cruelty, desertion and adultery is not precluded from suing again for dissolution on the same grounds, provided the relief is founded on new facts. Cause of action means a bundle of facts constituting the right of a party which he has to establish in order to obtain a relief from a court. The facts which constitute the grounds of cruelty, desertion or adultery as the case may be, are likely to vary giving rise to different causes of action depending on the facts and circumstances of each case. When cause of action is of continuing and recurring nature, the subsequent litigation for divorce brought on same grounds disregarding the dismissal of former O.P. will not be barred by res judicata.

13. Cause of action founded on acts of cruelty and desertion cannot be said to be always fixed or stable, preventing it from being a fresh ground for dissolution of the marriage. If incidents giving rise to cruelty and desertion are different, cause of action will also differ depending on facts and circumstances. Same is the principle when cause of action relates to adultery also. Even assuming that the appellant failed to establish ground of adultery in the former O.P. No. 687/2012, nothing precludes the appellant from urging the same ground of adultery in the subsequent O.P. on new set of facts constituting adultery.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal No. 383 of 2016

Decided On: 06.03.2019

Sunil Kumar K. Vs. Prasobha Devi D. and Ors.

Hon'ble Judges/Coram:

C.K. Abdul Rehim and T.V. Anil Kumar, JJ.

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When divorce granted by foreign court is not binding?

It is also pertinent to note that the petition for divorce was filed
in Dubai while the petitioner was domiciled in India. The Apex Court,
in Surinder Kaur Sandhu (supra) stressed the need to protect the wife
against the burden of litigating in inconvenient forum. Hence apart
from serving the petitioner with summons, it was necessary to ensure
that the petitioner was in a position to remain present before the court
at Dubai and contest the proceedings effectively. The judgment ofT
Dubai Court does not indicate that the respondent herein had ensured
effective conteTst by making all necessary provisions for the petitioner
to defend the petition, including the cost of travel, residence, and
litigation. Hence, in terms of the ratio of the judgment in Y.
Narasimha Rao (supra), the proceedings were in the breach of

principles of natural justice. Consequently, the judgment is
unenforceable in terms of clause (d) of section 13 CPC.
35. For the reasons recorded above, the judgment of Dubai Court
ceases to be conclusive, and consequently the same could not operate
as res-judicata. Following the dictum of the Apex court in the case of
Sondur Gopal (supra), it can be safely held that the parties being
hindus and Indian domiciles are governed by the provisions of Hindu
Marriage Act. The Family Court Bandra has jurisdiction to try the
divorce petition. Consequently, the marriage petition filed by the
petitioner before the family court could not have been dismissed on
the basis of the judgment of Dubai Court, which is not binding and
enforceable in India.
36. Under the circumstances, and in view of the discussion supra,
the appeal is allowed. The impugned order is set aside. The petition
No. A-3072 of 2016 is restored to file. Parties are directed to appear
before the Family Court, Bandra, Mumbai on 18th September, 2017 at

11 a.m. 
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 56 OF 2016
WITH
CIVIL APPLICATION NO. 154 OF 2016
IN
FAMILY COURT APPEAL NO.56 OF 2016
Shilpa Sachdev v/s. Anand Sachdev


CORAM : A.S.OKA & SMT. ANUJA PRABHUDESSAI, JJ.
Dated : 11th AUGUST, 2017.

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Whether husband can get divorce on ground of desertion if he fails to visit flat taken on rent by wife?

 If one fine morning the appellant/husband took the decision not to
visit his wife and daughter at the flat where they were staying which in fact
became their matrimonial home, then how he can be rewarded with a decree
of divorce on the ground of desertion when he himself has deserted his wife.
IN THE HIGH COURT OF DELHI AT NEW DELHI

Dated: August 29, 2016
 MAT.APP.(F.C.) 49/2014
ANIL KUMAR SHARMA 
v
MANJU SHARMA 
CORAM:
 MR. JUSTICE PRADEEP NANDRAJOG
 MS. JUSTICE PRATIBHA RANI
Citation: AIR 2017 Delhi 3

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What is difference between desertion and wilful separation?

 Hon'ble Apex Court in the case of Bipinchandra Jaisinghbai Shah versus Prabhavati, AIR 1957 SC 176 has observed that two essential conditions must be there to prove the desertion: (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Their Lordships have held that desertion is a matter of inference to be drawn from the facts and circumstances of each case. Their Lordships have held as under:

"What is desertion? "Rayden on Divorce" which is a standard work on the subject at p.128 (6th Edn.) has summarized the case-law on the subject in these terms:-

"Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party".

The legal position has been admirably summarized in paras 453 and 454 at pp. 241. to 243 of Halsbury's Laws of England (3rd Edn.), VoL 12, in the following words:-

"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. Desertion is not the withdrawal from a place but from the 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 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 three years immediately preceding the presentation of the petition 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". Thus 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 (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. 

Uttaranchal High Court

Mohan Singh Mawri vs Haripriya on 7 January, 2017

                                                              
Coram:Hon'ble Sudhanshu Dhulia, J.

             Hon'ble Rajiv Sharma, J.

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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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Whether wife who is residing separate from husband without any reason can get maintenance?

I would like to refer to the judgment of this Court in the
case of Savita Bai (Supra) in which after marriage Savita
Bai resided only for 8 days in the house of her husband and
thereafter, she left the house without any reason and unable
to prove the charge of harassment. Under such
circumstances, this Court has held that “the applicant-wife
is not entitled for maintenance.” In the present case also
non-applicant-wife resided in her matrimonial home for the
first time for 7 days and second time for 12 days and it is
alleged that in these 12 days she was harassed. It is
practically impossible that she could have been so harassed
that it is impossible for her to live in her matrimonial home.
After 12 days she had voluntarily gone with her brother with
a view to select a girl for marriage of her brother. Thus, it
can not be held that she was thrown with force from her
matrimonial home or she was forced to leave her matrimonial
home.[12] Learned counsel for the non-applicants placed reliance
on the judgment of Laxmi Bai Patel (Supra) and Dalibai
(Supra). Facts of these cases are quite different, therefore,
these cases are not helpful to the non-applicants.
[13] With the aforesaid, I am of the view that the finding of
the Trial Court that non-applicant/wife has sufficient reason
to live separately is not sustainable in law. Nonapplicant/wife
is residing separately without any reason,
hence, she is not entitled for maintenance under Section 125
of Cr.P.C.
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon'ble Shri Justice Jarat Kumar Jain )
Criminal Revision No.829 of 2014
Anil  Jain
V
Smt. Sunita 

( Passed on this th day of November, 2016 )
Citation: 2016 SCC ONLINE MP6368

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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 mother and sons can constitute joint family if father is residing separately from them?

Thus, they contend that they constitute a joint Hindu
family.  In fact, law presumes that every Hindu family is a joint
family unless otherwise shown.  In the instant case, however,
the controversy seems to have arisen because the father doesnot live with the family.   Normally, a joint family consists of
father, mother and sons and their wives.   Here, admittedly,
father had long back turned the plaintiffs and defendant no.2out of the house and he is living separately.   The question is
whether   the   mother   and   two   sons   could   constitute   a   joint
family and that seems to be the question of law raised.  I see no
reason why they cannot.  If two brothers, upon death of father,
can   constitute   a   joint   family,   there   is   no   reason   why   two
brothers in this case with their mother cannot constitute a jointfamily,   when   father   deserts   them.     Even   if   one   of   the
coparceners decides to break away from the rest of the family,
the other coparceners can constitute a joint Hindu family.  Even
otherwise in the instant case father had deserted them, he has
not separated as such from the family.  I find that the two sons
with   their   mother   and   even   wives   can   constitute   the   joint
Hindu family.   In the instant case, it could be said that the

plaintiffs and defendant no.2 constituted a joint Hindu family.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.109 of 1997.
 Kausabai wd/o Rajaram Waradkar,

     V
 Gayabai wd/o Gundaji Mogre,

   CORAM:  C.L.Pangarkar, J.
   DATED :   13th April, 2010.
Citation:2010(4) MHLJ 46

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Whether divorce can be granted on ground of desertion in absence of pleading and proof?

 Considering the case in hand and on appreciation

of the evidence, it is seen that the actual desertion as

stated by the husband is not pleaded with the statutory


period mentioned under Section13(1)(ib) of the Act. The

animus deserendi or intention to desert and the factum

of separation which are the two essential elements to

constitute desertion are not properly found in the alleged

desertion. Even though there was factum of separation,

their rejoining after filing the petition shows that they

have no intention to bring the cohabitation permanently

to an end. This shows that the petitioner husband failed

to prove the ground of desertion and the judgment of the

lower court on the ground of desertion is to be set aside.

No decree of divorce could be granted on the ground of

desertion in the absence of pleading and proof with

regard to mental element and physical element.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT:

               MR.JUSTICE V.K.MOHANAN
                                  &
                MR. JUSTICE P.D.RAJAN

      WEDNESDAY, THE 11TH DAY OF FEBRUARY 2015

                   Mat.Appeal.No. 244 of 2007 ( )
                  

       C.V.USHAKUMARI, 
Vs
       P.SUKUMARAN,
     Citation; AIR 2016(NOC)50 Kerala

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Whether wife leaving husband for becoming politician amounts to desertion?

To prove desertion in matrimonial matter, it is
not always necessary that one of the spouse should
have left the company of the other as desertion
could be proved while living under the same roof.
Desertion cannot be equated with separate living
by the parties to the marriage. Desertion may also
be constructive which can be inferred from the
attending circumstances. It has always to be kept
in mind that the question of desertion is a matter
of inference to be drawn from the facts and
circumstances of each case.”
Thus keeping in view the aforesaid settled position of
law that there can be no desertion without animus deserendi and
it implies not only factum of separation but also intention to
separate permanently and to put an end to matrimonial
relationship and cohabitation, on scanning of the materials on 16
record, we found that the conduct of the appellant in leaving the
company of her husband and their small children and living
separately for so many years since 2007 for pursuing her socalled
political ambition clearly indicates that she had deserted
the respondent without reasonable cause and without his
consent and against the wish of the respondent.

IN THE HIGH COURT OF ORISSA, CUTTACK
MATA NO. 104 Of 2011


Usharani Pradhan V Brajakishore Pradhan 



P R E S E N T:-
 MR. JUSTICE VINOD PRASAD
AND
 MR. JUSTICE S.K. SAHOO
 Date of Judgment-19.11.2015

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Whether ground for divorce can be added on basis of subsequent conduct of parties ?

Family - Amendment - Whether on an amendment permitting prayer for grant of divorce in such proceedings being granted, same relates back to date of filing of proceedings - Held, relying on Suren Chandrakant Shah versus Rita Suren Shah it was held that granting such an amendment would not relate back to date of filing of Petition and ground sought to be raised would become available only from date of grant of such amendment - Ground of desertion was added by way of amendment during pendency of matrimonial proceedings - It was observed that ground that was initially not available could be permitted to be added on basis of subsequent conduct of parties and same would not relate back to date of filing of Petition but, said ground would become available from date of grant of amendment - Therefore amendment permitting raising of ground of divorce during pendency of proceedings would not relate back to date of filing of proceedings, but would become available from date it was granted - Appeal dismissed.

"Ground that is initially not available can be permitted to be added on basis of subsequent conduct of parties and same will not relate back to date of filing of Petition but, said ground will become available from date of grant of amendment."

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

First Appeal No. 308 of 1998

Decided On: 06.01.2014

 Smt. Uttara Praveen Thool

Vs.

Respondent: Praveen

Hon'ble 

Judges/Coram:B.P. Dharmadhikari and A.S. Chandurkar, JJ.

Citation: 2014(2)ABR1, 2014(3)ALLMR721, 2014(1)BomCR495, II(2014)DMC507Bom., 2014(2)MhLj321

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Whether there can be desertion without previous cohabitation by parties?

"Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati [AIR 1957 SC 176] held that if a spouse abandons the other in a state of temporary passions, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held:
 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."
To prove desertion in matrimonial matter it is not always necessary that one of the spouse should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case.
There is another aspect of the matter which disentitles the appellant from seeking the relief of divorce on the ground of desertion in this case. As desertion in matrimonial cases means the withdrawal of one party from a state of things, i.e., a marital status of the party, no party to the marriage can be permitted to allege desertion unless he or she admits that after the formal ceremonies of the marriage, the parties had recognised and discharged the common obligation of the married life which essentially requires the cohabitation between the parties for the purpose of consummating the marriage. Cohabitation by the parties is an essential of a valid marriage as the object of the marriage is to further the perpetuation of the race by permitting lawful indulgence in passions for procreation of children. In other words, there can be no desertion without previous cohabitation by the parties.

Supreme Court of India

Savitri Pandey vs Prem Chandra Pandey on 8 January, 2002

Bench: R.P. Sethi, Y.K. Sabharwal

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