It is not necessary that desertion would commence when the fact of separation and animus deserendi coexist u/S 13 of the HMA, 1955: Bombay High Court

In the event that a spouse deserts the other, it is pertinent to note whether there was an intention to bring the cohabitation to an end and to also scrutinize whether an animus deserendi existed. It was seen in the matter of Darshana v Alok Borkar [FMA No. 1/2019], by the Bombay High Court bench comprising of A.S Chandukar J. and Pushpa V. Ganediwala J. in a matter surrounding issues of divorce, desertion, and subsequent marriage of the husband.

The facts of the case arose out of numerous circumstances clubbed together. The husband and wife had solemnized their marriage in 2006 and stayed together for a month after which various sporadic issues started taking place between them. There were instances of guilty which howsoever remained unproved and an instance of desertion by the wife. The husband eventually considered the desertion to be the final nail and initiated divorce proceedings. Meanwhile, he also had a subsequent marriage. The wife filed a suit for cruelty in the lower courts, and now the present appeal lies before the present court.

The bench narrowed down the issues to three:
• Whether the husband has proved that his wife deserted him so as to constitute a ground for divorce?
• What is the effect of the subsequent marriage of the husband?
• Whether the judgment of the Family Court deserves to be interfered with?

To constitute desertion, the court was convinced that it must be shown that there is an intention to bring the cohabitation permanently to an end thus constituting animus deserendi. Desertion would be a matter of inference to be drawn from the facts and circumstances of the case and even if there has been separation the question to be considered is whether that act could be attributable to an animus deserendi. As observed in Lachman Utamchand Kirpalani Versus Meena alias Mota [AIR 1964 SC 40] it is not necessary that desertion would commence when the fact of separation and animus deserendi coexist. It is not necessary that they should commence at the same time. As per the explanation in Section13 (1) of HMA Act of 1955 the expression “desertion” means desertion by the other party to the marriage without reasonable cause and without the consent or against the wish of such part.

In the issue of subsequent marriage, according to the husband with the same lady is now stated to have been contracted on 09.12.2018. It was found that in view of the decision in Lila Gupta v Laxmi Narian & Others [AIR 1978 SC 1351], a marriage contracted in violation of the proviso to Section 15 of the Act of 1955 would not be void but would be merely invalid. The same would not affect the core of marriage and the parties would be subject to a binding tie of wedlock flowing from the marriage. As per the proviso to Section15 of the Act of 1955 it was not lawful for either party to marry again unless the period of one year had elapsed from the date of the decree.

After a perusal of the impugned judgment, the court opined that the learned Judge of the Family Court recorded a finding that filing criminal proceedings under Section 498-A of the Penal Code against the husband and his family members which proceedings came to be quashed by this Court amounted to cruelty on the part of the wife. There was no specific finding recorded that the ground of cruelty as pleaded in the divorce petition had been duly proved on the basis of the evidence led before the Family Court. The ground of cruelty was based on the incident dated 26.02.2007 which has not been proved.

Therefore on the above reasoning, the court held that “As a result of the aforesaid discussion, the following order is passed:- The judgment of the Family Court in Petition No.A177/2009 dated 28.08.2018 is quashed and set aside and Petition No.A177/2009 stands dismissed.”

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