Cordial Exchanges Can't Be Equated With Bona Fide Attempt To Restore Marriage: Delhi High Court Upholds Divorce On Ground Of Desertion
The Delhi High Court has observed that cordial exchanges between a husband and a wife cannot be equated with a bona fide attempt to restore matrimonial life.A division bench comprising Justice Anil Kshetarpal and Justice Harish Vaidyanathan Shankar upheld a family court order allowing the divorce petition of a husband and dissolving his marriage with his wife under Section 10(1)(ix) of...
The Delhi High Court has observed that cordial exchanges between a husband and a wife cannot be equated with a bona fide attempt to restore matrimonial life.
A division bench comprising Justice Anil Kshetarpal and Justice Harish Vaidyanathan Shankar upheld a family court order allowing the divorce petition of a husband and dissolving his marriage with his wife under Section 10(1)(ix) of the Divorce Act on the ground of desertion.
The family court had also dismissed the wife's plea seeking restitution of conjugal rights.
Dismissing the wife's appeal against the grant of divorce, the Court observed that two essential constituents of desertion- the fact of separation and the animus deserendi, must coexist in order to sustain a decree of divorce.
The Court said that both the factors must be proved affirmatively by the party seeking the divorce, to the stringent standard of proof beyond reasonable doubt.
“It is equally imperative that the deserted spouse must demonstrate not only the absence of consent to the separation but also the absence of any conduct which, in law or equity, could provide a just and reasonable cause for the other spouse to withdraw from cohabitation,” it added.
Further, the Bench observed that desertion does not connote a mere physical severance of residence but rather signifies a deliberate and wilful renunciation of the essential obligations of matrimony, companionship, consortium, and cohabitation.
It said that being incapable of direct proof, desertion is essentially a matter of inference to be drawn from a holistic appraisal of the conduct of both the parties, their circumstances, and their communications- both preceding and subsequent to the act of separation.
The Court said that the Family Court, after a detailed analysis of the evidence and surrounding circumstances, concluded that both elements were duly satisfied, as the wife had left the matrimonial home of her own accord and made no attempt to resume cohabitation with the husband despite sufficient opportunity.
On the wife's reliance on a compilation of emails and chats to suggest her willingness to preserve the marital relationship, the Court said:
“While these communications do reflect cordiality, cordial exchanges cannot be equated with a bona fide attempt to restore matrimonial life. Indeed, the record makes it clear that it was the Appellant who deserted the Respondent in November 2012, without his knowledge or consent.”
It added that even assuming that the communications indicated the absence of animus deserendi at the inception of separation, there was no evidence to suggest any effort to resume cohabitation on wife's part.
Title: X v. Y