Case Note & Summary
The appellant-husband and respondent-wife, both Goan, married on 22.2.1977 and had two children born in Goa. The husband, a seaman, filed a suit on 10.3.1993 seeking divorce on the ground of abandonment of conjugal domicile under the Portuguese Civil Code, 1867. He alleged that the wife was unwilling to reside with him at the matrimonial home with his family, complaining the house was too small, and wanted him to stay with her parents. The wife denied abandonment and expressed willingness to live with the husband separately. The trial court dismissed the suit, and the husband appealed. The High Court upheld the dismissal, holding that the wife's refusal to live with the husband's family did not amount to desertion as there was no intention to permanently abandon the husband. The court noted that the husband failed to prove the essential elements of desertion, including animus deserendi and absence of consent. The appeal was dismissed with no order as to costs.
Headnote
A) Family Law - Divorce - Abandonment of Conjugal Domicile - Section 10, Portuguese Civil Code, 1867 - The husband sought divorce on ground of wife's abandonment of conjugal domicile. The court held that mere refusal to live with husband's family does not constitute desertion; there must be an intention to permanently abandon the matrimonial home. The wife's offer to live with husband separately indicated no animus deserendi. (Paras 1-5) B) Evidence - Burden of Proof - Desertion - The burden lies on the petitioner to prove desertion without reasonable cause and against the will of the petitioner. The husband failed to establish that the wife had no just cause for living separately. (Paras 3-5)
Issue of Consideration
Whether the wife's refusal to reside with the husband's family and her insistence on living separately amounts to abandonment of conjugal domicile entitling the husband to a divorce under the Portuguese Civil Code, 1867.
Final Decision
Appeal dismissed. No order as to costs.
Law Points
- Abandonment of conjugal domicile
- desertion
- matrimonial home
- burden of proof
- intention to desert
- Portuguese Civil Code
- 1867
