Case Note & Summary
The appeal arose from the judgment and order dated 17-08-2001 passed by the Family Court, Mumbai, in M.J. Petition No. 1683 of 1997, whereby the petition filed by the appellant-husband for divorce on the ground of desertion by the respondent-wife was dismissed. The marriage between the appellant and the respondent took place at Mumbai on 14-12-1980, and they had a daughter born on 29-11-1981. Quarrels began around 1990. In June 1995, the respondent received a share in her father's property, and on 30-06-1995, she left the matrimonial home along with her daughter and belongings. The appellant filed the divorce petition in September 1997, alleging desertion. The Family Court dismissed the petition, leading to this appeal. The core legal issue was whether the respondent deserted the appellant without reasonable cause for a period of more than two years prior to the institution of the petition. The appellant argued that voluminous evidence disclosed the respondent's intention not to return and that the Family Court had misconstrued witness testimonies and made perverse findings, such as the appellant being caught red-handed encouraging their daughter to watch pornographic films. The appellant also contended that despite genuine efforts to contact the respondent, her adamant attitude prevented his efforts from succeeding. The respondent submitted that the appellant failed to establish that she left without sufficient cause and that the findings of the Family Court were borne out from the records. The High Court, analyzing the evidence, found that the respondent left the matrimonial home on 30-06-1995, but the circumstances revealed she did so under compulsion. The appellant had prior knowledge and informed the respondent's employer that the respondent would leave on that date, while the respondent had made no prior arrangements to leave. The appellant's subsequent conduct, including hurriedly canceling the names of the respondent and daughter from the ration card and sending a letter to the respondent's workplace claiming ignorance of her whereabouts despite being acquainted with her employer, indicated a lack of genuine effort to bring her back. The testimony of the respondent, corroborated by her employer, went unchallenged. Citing the Supreme Court decision in Lachman Utamchand Kirpalani v. Meena alias Mota, the Court reiterated that desertion requires intentional permanent forsaking and abandonment without reasonable cause and that if the petitioner's conduct provides a just cause for the deserting spouse to stay away, the petition cannot succeed. The Court concluded that the respondent never desired to leave voluntarily and that the appellant had failed to prove desertion without reasonable cause. Accordingly, the High dismissed the appeal, upholding the Family Court's dismissal of the divorce petition.
Headnote
A) Family Law - Desertion - Essential Ingredients - Hindu Marriage Act, 1955, Section 10(1)(a) - Desertion requires intentional permanent forsaking and abandonment without reasonable cause and without consent of the other spouse; it is total repudiation of marital obligations - Held, the deserted spouse must establish that the desertion was without just cause for the entire statutory period. (Paras 4-5) B) Family Law - Desertion - Burden of Proof - Hindu Marriage Act, 1955 - The petitioner must prove desertion without just cause during the entire two-year period; if the petitioner's conduct provides a just cause for the deserting spouse to stay away, the petition cannot succeed - Held, the evidence must show that the deserting spouse had no reasonable cause to leave. (Paras 5) C) Family Law - Desertion - Compulsion to Leave - Hindu Marriage Act, 1955 - Where the wife was compelled to leave the matrimonial home as indicated by the husband's prior knowledge and actions such as informing her employer, and the wife had not made prior arrangements, it cannot be said she left voluntarily with intention to desert - Held, the circumstances proved that the wife did not intend to desert the husband but was forced to leave. (Paras 6-8) D) Family Law - Desertion - Conduct of Husband - Hindu Marriage Act, 1955 - Husband's subsequent conduct such as hastily canceling names from ration card and failure to genuinely inquire about wife's address showed lack of effort to bring wife back; thus the wife's absence was not desertion but result of husband's conduct - Held, the husband failed to prove desertion on the part of the wife. (Paras 7-10)
Issue of Consideration
Whether the respondent deserted the appellant, without reasonable cause, for a period of more than two years prior to the institution of the petition.
Final Decision
Appeal dismissed; Family Court's order dismissing divorce petition upheld. The court found that the wife did not desert the husband but was compelled to leave the matrimonial home due to the husband's conduct, and the husband failed to prove desertion without reasonable cause.
Law Points
- Desertion requires intentional permanent forsaking and abandonment without reasonable cause
- total repudiation of marital obligations
- burden on petitioner to prove desertion without just cause for entire statutory period
- if petitioner's conduct provides just cause for deserting spouse to stay away petition cannot succeed
- mere leaving matrimonial home not necessarily desertion if compelled
