Bombay HC quashes divorce given to couple for wife’s ‘desertion’

Mumbai: The Bombay high court has set aside a family court’s order granting divorce to a couple in 2008. The family court had granted divorce on the petition of the
husband on the ground that his wife had deserted him.

The HC observed that the wife going to meet her brother in Kenya, with or without her husband’s consent, for 15 days and residing at her paternal house after her return to India, would not amount to desertion or final separation.

The division bench of Justice Abhay Oka and Justice Anuja Prabhudessai passed this order recently while hearing an appeal filed by the wife challenging the decree of divorce granted by the family court on the ground of cruelty and desertion by the wife. The couple got married in 1988.

About the allegation of desertion by going to Kenya in April 1992 and returning to her parental house instead of her matrimonial home, the wife said that she was working for Air India and had got free tickets for Kenya.

She said she had gone to Kenya with the consent of her husband but when she returned to Mumbai, she had received a legal notice from her husband. She further alleged that she wanted to go to her husband’s house but he did not allow her to enter the house.

The HC in its order observed, “The mere fact that the wife had visited her brother
in Kenya with or without the consent of the husband, or that upon her return she had started residing at her parental house would not per say amount to desertion or final separation as alleged by the husband.”

The bench quashed and set aside the order of the family court. The HC observed that the wife “has refuted each and every accusation levelled against her” and hence, “In absence of corroborative evidence, the trial judge was not justified in accepting the evidence of the husband and discarding the evidence of the wife, without there being any justifiable reasons.”