RANCHI: The Jharkhand High Court clarified that a spouse abandoning the other in a state of temporary passion, without intending to permanently cease cohabitation, will not amount to desertion.
According to the court, abandonment cannot be proved for divorce merely based on physical separation. Rather, it said, abandonment will be considered when a husband or wife has the intention to permanently end the marital relationship, and not just physical separation.
With this, the court of Justice Sujit Narayan Prasad and Justice Rajesh Kumar rejected the divorce petition of Arun Kumar.
Respondent’s advocate Rajeeva Sharma informed that Arun Kumar, a police officer, accusing his wife of cruelty and abandonment, had sought divorce. He alleged that his wife had left him in 2016 and did not resume the marital relationship, but the wife denied these allegations and said that she is still living with her children in her husband’s house.
“The family court had rejected this petition, as Arun Kumar could not prove his allegations, following which, he approached Jharkhand High Court, which upheld the decision of the family court,” said the respondent’s advocate.
The court clarified that abandonment requires not only physical separation, but also proving that one party had the intention to end the marriage forever.
In its order dated April 24, the court further explained that the definition of ‘desertion’ under Section 13 of the Hindu Marriage Act means the desertion of a party by the other party to the marriage “without reasonable cause and 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,” explained the division bench.
The court further added that 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, it said.
The court said that the quality of permanence is one of the essential elements which differentiates desertion from willful 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,” stated the court order.
For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there — the factum of separation, and the intention to bring cohabitation permanently to an end, it said.
Therefore, the Court observed 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 appeal was dismissed.