Case Note & Summary
The appeal arises from a judgment and decree dated 06.04.2017 passed by the I Additional Principal Family Court, Mysuru, in M.C. No.365/2015, whereby the Family Court allowed the husband's petition under Section 13(1)(ib) of the Hindu Marriage Act, 1955, dissolving the marriage between the parties. The appellant-wife and respondent-husband were married on 28.04.2008 (the judgment text says 28.4.1008, which appears to be a typographical error for 28.04.2008) and have a son named Ravikumar, aged about 18 years. The husband had earlier filed M.C. No.195/2003 under Section 13(1)(ia) and (ib) of the Act seeking divorce, which was dismissed. The husband's appeal against that dismissal, MFA No.10504/2007, was dismissed by the High Court on 07.02.2011. Subsequently, the husband filed M.C. No.365/2015 under Section 13(1)(ib) of the Act, alleging that the wife had deserted him without reasonable cause. The Family Court allowed the petition and granted divorce. The wife appealed against that decision. The High Court examined the evidence and found that the husband failed to prove that the wife deserted him for a continuous period of two years immediately preceding the filing of the petition. The court noted that the earlier petition for divorce was dismissed, and the husband did not establish the requisite period of desertion. The court also rejected the argument that the marriage had irretrievably broken down, as such a ground is not recognized under the Hindu Marriage Act. Consequently, the High Court allowed the appeal, set aside the Family Court's judgment, and dismissed the husband's petition for divorce.
Headnote
A) Family Law - Desertion - Section 13(1)(ib) Hindu Marriage Act, 1955 - Burden of Proof - The husband sought divorce on ground of desertion. The wife had left the matrimonial home but the husband failed to prove that the desertion was without reasonable cause and for a continuous period of two years immediately preceding the petition. The court held that the burden lies on the petitioner to establish all elements of desertion, including animus deserendi. (Paras 2-5) B) Family Law - Desertion - Continuous Period - Section 13(1)(ib) Hindu Marriage Act, 1955 - The court observed that the period of desertion must be continuous and immediately preceding the petition. The husband's earlier petition for divorce was dismissed in 2011, and the subsequent petition was filed in 2015. The court found that the husband did not prove that the wife was in desertion for the requisite period. (Paras 3-5) C) Family Law - Irretrievable Breakdown - Not a Ground for Divorce - The court noted that irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. The husband's argument that the marriage had broken down irretrievably was rejected as the law does not recognize such a ground. (Para 5)
Issue of Consideration
Whether the Family Court was justified in granting divorce on the ground of desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955, when the husband failed to prove that the wife deserted him for a continuous period of two years immediately preceding the petition.
Final Decision
The High Court allowed the appeal, set aside the judgment and decree dated 06.04.2017 passed by the I Additional Principal Family Court, Mysuru, in M.C. No.365/2015, and dismissed the husband's petition for divorce.
Law Points
- Desertion
- Burden of proof
- Continuous period
- Irretrievable breakdown of marriage
- Section 13(1)(ib) Hindu Marriage Act
- 1955
