Case Note & Summary
The appellant husband and respondent wife were married in December 1994 and have a son. The wife left the matrimonial home in February 1998, and the parties have lived separately since then. In 1999, the husband filed a divorce petition on the ground of cruelty, which was dismissed on 25 August 2000. However, the parties continued to live separately. On 31 May 2008, the wife performed the thread ceremony of their son without inviting the husband or his family. The husband filed a divorce petition on 20 July 2006 on the ground of desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955. The Family Court at Pune dismissed the petition, holding that though the parties were living apart for over ten years, the separation was at the instance of the husband. The husband appealed. The High Court considered the legal principles of desertion, including the requirements of animus deserendi and factum of separation. The court noted that the wife left the matrimonial home and there was no resumption of cohabitation for over 10 years. The court held that the wife's conduct amounted to desertion, and the husband was entitled to divorce. The appeal was allowed, and the marriage was dissolved.
Headnote
A) Hindu Marriage Act - Desertion - Section 13(1)(ib) - Animus Deserendi - The court considered whether a husband can obtain divorce on ground of desertion when wife left matrimonial home and parties lived separately for over 10 years - Held that desertion requires both factum of separation and animus deserendi; long separation without cohabitation may constitute desertion even if initial separation was at instance of husband - The court allowed the appeal and granted divorce (Paras 1-10).
Issue of Consideration
Whether the husband is entitled to divorce on the ground of desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955 when the wife left the matrimonial home and the parties lived separately for over 10 years.
Final Decision
Appeal allowed; marriage between appellant and respondent dissolved by decree of divorce under Section 13(1)(ib) of Hindu Marriage Act, 1955.
Law Points
- Desertion under Section 13(1)(ib) of Hindu Marriage Act
- 1955 requires animus deserendi and factum of separation
- long separation without cohabitation may constitute desertion even if initial separation was at instance of petitioner
- burden of proof on petitioner to establish desertion
- constructive desertion possible.
