Desertion not to be tested merely by ascertaining which party left matrimonial home first: Delhi High Court

The Delhi High Court has passed a judgment on 01-06-2017 in the case of Nisha Rani vs Sohna Singh Nehra MAT.APP.(F.C.) 82/2014.Justice Pradeep Nandrajog and Justice Yogesh Khanna disposed the judgment by declaring respondent guilty of constructive desertion to appellant.


Facts are that the respondent/husband had filed a divorce petition (though originally filed before Faridabad Courts and pursuant to the order of the Hon’ble Supreme Court dated February 26, 2010 the petition came to be transferred to Delhi Courts) against his wife alleging his life being made miserable by his wife, she being quarrelsome; always insisting of separation from her in-laws; did not provide him food in time and made his life a hell. On February 14, 2002, the appellant gave birth to a child, who unfortunately expired on February 16, 2002 and she held the respondent responsible for his death and demanded ₹5,000/- as compensation; she used to leave the matrimonial home without his consent on pretext of joining some computer classes; and finally left the matrimonial home with her parents on September 06, 2003 in his absence taking away all her dowry articles and that he lodged DD No.25A dated September 11-12, 2003 with Police Post No.3, NIT Faridabad, Haryana.

The husband / respondent also alleged that on April 03, 2004, a daughter namely Tina was born and all her delivery expenses were borne by him and since then he has been visiting the house of the appellant herein requesting her to return to her matrimonial home, but to no avail. The husband / respondent also alleged that on September 08, 2003 he filed a Divorce Petition in Faridabad Courts, but since she gave an assurance to join him, he withdrew the said petition on January 19, 2004, but yet again the appellant failed to join his company. On June 13, 2004 he convened a Biradari Panchyat, but the appellant did not accept its advice and insulted him in the presence of the panchyat members and rather filed FIR under Section 498A/ 406 of the IPC at police station Dabri, Delhi. The respondent further alleged that at the advice of the learned Court, he tried to patch up the matter and on January 05, 2006 went to her parents house MAT.APP.(F.C.) 82/2014 Page 3 of 12 to bring her back, but was abused and kicked and that he reported the matter to SHO, Dabri, Delhi.

The parties were married on April 23, 2000 in New Delhi in accordance with Hindu rites and ceremonies, but unfortunately could not go along well, the appellant having left the matrimonial home on September 06, 2003 to live with her parents. Her leaving the matrimonial home on September 06, 2003 was considered an act of desertion and cruelty by the learned Trial Court and hence a decree of divorce dated November 11, 2013 was granted to the husband/ respondent by the learned Judge, Family Court, Dwarka, New Delhi. It is against this decree the appellant–wife has filed this Matrimonial Appeal (Family Court) No.82/2014 and has challenged the impugned judgment.

The learned Judge Family Court held that these three incidents caused cruelty to respondent and granted him divorce under Section 13 (1) (ia) of the Hindu Marriage Act, 1955. Further, the learned Judge Family Court also held that the appellant herein had left the matrimonial home without any reasonable cause with a requisite intention of bringing the marriage permanently to an end and had failed to join the company of her husband despite his repeated efforts and thus committed the act of desertion, hence petition was also decreed under Section 13(1)(ib) of Hindu Marriage Act.


Thus, looking at the material which has come on record it is clear that wife had sufficient grounds to live separately. High court are of the view that learned Judge, Family Court, Dwarka, has misread the evidence and though the appellant left the matrimonial home, but she never wished to bring her marital ties permanently to an end. The desertion is not 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.

Court took reliance from the decision reported in the case of  Ravi Kumar vs Julmidevi (2010) 4 SCC 476  the Supreme Court has observed as under:-“It may be noted only after the amendment of the said Act by the amending Act 68 of 1976, desertion per se became a ground for divorce. On the question of desertion, the High Court held that in order to prove a case of desertion, the party alleging desertion must not only prove that the other spouse was living separately but also must prove that there is an animus deserendi on the part of the wife and the husband must prove that he has not conducted himself in a way which furnishes reasonable cause for the wife to stay away from the matrimonial home.”

The respondent herein had failed to bring his case within the parameters of cruelty and desertion as defined and as such, hight court has set aside the impugned judgment dated November 22, 2013 of the learned Judge, Family Court, Dwarka in HMA No.444/2009 tilted ‘Sohan Singh Nehra vs Nisha Rani’. 21. The appeal is thus allowed.

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