Desertion not to be decided on who left marital home first: HC

New Delhi: Desertion by a spouse is not to be decided merely on who left the matrimonial home first, as the conduct of one half of the married couple could force the other to live separately, the Delhi High Court said on Sunday.

A bench of Justices Pradeep Nandrajog and Yogesh Khanna said desertion is "not a withdrawal from a place" but a repudiation of all obligations of marriage and the abandonment of one spouse by the other, without any reasonable cause or consent of the other.

It made the observation while setting aside the divorce granted to a husband by a family court on the ground of desertion by the wife, saying, "The record reveals the respondent (husband) rather had deserted the appellant (wife) and even today she has to fight for her maintenance,” adding that with the material available, it is clear that the wife had sufficient grounds to live separately.

"We are of the view that Judge, Family Court, Dwarka, has misread the evidence and though the appellant (wife) left the matrimonial home, she never wished to bring her marital ties permanently to an end," the bench observed.

While giving reasons for its decision, the high court said, "Desertion is not a withdrawal from a place, but from a state of things. It is repudiation by one of all obligations of marriage. It is the abandonment of one spouse by the other without any reasonable cause and without consent of other.”

It further commented that desertion cannot to be tested by merely ascertaining which party left the matrimonial home first. “If one spouse is forced by the conduct of the other to leave, the desertion could be by such conduct of other spouse and compelled to live separately," the bench said while allowing the wife's appeal challenging the divorce decree.

It said the family court judge was "so overawed" by the fact of the wife leaving the matrimonial home on September 6, 2003 without the husband's consent that he made it a basis for cruelty and desertion by her.

It also said that the family court judge "went wrong" by not giving "due weightage" to her unchallenged testimony that she was forced to leave the matrimonial home on January 25,

2002 and again on September 6, 2003, both times when she was pregnant, due to the conduct of her husband.

The high court also noted that the husband during his cross-examination had admitted that he had accused his wife of killing their son, who died hours after birth, and said that such conduct amounted to cruelty.

It also noted in its 12-page judgement that the husband's conduct of leaving his house on September 6, 2003 and not returning till his wife was taken away by her parents and that he filed a divorce petition within two days thereafter on a false ground, "shows the respect he had for his wife and the way he used to treat her".