Jharkhand HC clarifies simply moving out does not count as ‘desertion’ in divorce

The Jharkhand High Court, while rejecting a husband’s appeal seeking divorce on the ground of desertion, observed that desertion cannot be reduced to the mere act of leaving a physical residence, but involves the abandonment of marital responsibilities.

A division bench comprising Justices Sujit Narayan Prasad and Arun Kumar Rai was hearing a challenge to a 2022 family court order that had dismissed the man’s divorce petition. In its January 24 ruling, the court explained that desertion relates to the withdrawal from the marital relationship and obligations, rather than from a specific place, noting that the law focuses on the recognition and fulfilment of the shared duties arising out of marriage, Indian Express reported.

The bench took into account the wife’s consistent stand that she was willing to live with her husband and discharge her marital duties. It further recorded that she had been forced out of the matrimonial home and therefore could not be said to have deserted her spouse.

Findings

The High Court clarified that the spouse who physically leaves the shared household is not automatically the one guilty of desertion. Referring to the explanation of Section 13 of the Hindu Marriage Act, 1955, the bench noted that desertion means abandonment of the petitioner by the other spouse without reasonable cause and without consent, and also includes wilful neglect. The court observed that desertion can exist even in cases where the parties had not lived together for long or where the marriage was not consummated.

The judges explained that desertion is not a single, completed act but a continuing course of conduct. While it must persist for at least two years immediately before the filing of a divorce petition to qualify as a ground for divorce, the offence itself exists independently of its duration. Unlike adultery or cruelty, desertion remains incomplete until legal proceedings are initiated and continues over time.

The court underlined that permanence is a key element distinguishing desertion from a temporary separation. It said that leaving the matrimonial home due to momentary anger, resentment or emotional upset, without an intention to permanently end cohabitation, does not amount to desertion.

The bench also took note of the husband’s statement during cross-examination that he would not allow his wife to return even if she was willing to live with him properly, as he no longer trusted her. This, the court said, undermined his claim of having been deserted.

Reiterating settled legal principles, the court said desertion involves the deliberate abandonment of one spouse by the other, without consent and without just cause. The spouse alleging desertion must establish both the fact of separation and the intention on the part of the other spouse to permanently end marital cohabitation.

The judges emphasised that there must be animus deserendi — the intention to desert — on the part of the spouse accused of desertion, along with a lack of consent from the other spouse, whose conduct should not have reasonably driven the separation.

Summing up, the court held that for desertion to be established, two essential elements must be present on the part of the deserting spouse: actual separation and a clear intention to bring the marital relationship to a permanent end.

Background

The case arose from a petition filed by the husband challenging a family court order that had rejected his plea for divorce. The couple married in June 2010, and the husband approached the court seeking a divorce in 2015.

In his petition, he alleged that soon after the marriage, his wife pressured him to remove his elderly parents and sister from the family home. He further accused her of behaving aggressively and cited an alleged incident in October 2012 in which she supposedly assaulted her father-in-law while he was cleaning the floor.

The husband claimed that in October 2012, his wife left the matrimonial home along with their 11-month-old son, taking her belongings and refusing to return. He argued that this amounted to desertion and caused severe distress to the family, including the disruption of important social ceremonies related to their child.