Desertion Requires Intent, Not Just Separation: Jharkhand High Court Rejects Husband's Divorce Appeal

The Jharkhand High Court has held that desertion as a ground for divorce cannot be established merely through physical separation unless it is proven that the separating spouse intended to permanently sever the marital relationship.

The Court, while upholding the Family Court's decision denying divorce, emphasised that desertion requires both the fact of separation and the intention to end cohabitation for good, and found that the husband in the case failed to discharge this legal burden.

A Division Bench comprising Justice Sujit Narayan Prasad and Justice Rajesh Kumar noted, “Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'.”

The Court further elaborated, “The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least two years immediately preceding the presentation of the petition or, where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence.”

The Court clarified that not every instance of separation amounts to desertion. A critical component, it held, is the permanence of the intent behind the separation. It observed, “It is, thus, evident from the aforesaid reference of meaning of desertion that the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion.”

The above ruling was delivered in a first appeal filed by one Arun Kumar (appellant husband) challenging the dismissal of his divorce petition by the Principal Judge, Family Court, Bokaro in an Original Suit whereby he sought a decree of divorce under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955, on the grounds of cruelty and desertion by his wife, Raj Soni Devi.

Kumar, a police officer by profession, married Raj Soni Devi in 1996. In his petition, he alleged that his wife did not want to live in a joint family and frequently quarreled with his relatives. He claimed she had subjected him to mental cruelty, threatened to have him killed, and even conspired with others to harm him. He further alleged that she had deserted him since 15 November 2016 and had not resumed conjugal relations. He also accused her of maintaining an illicit relationship with a man named Ranjit Kumar.

Alternatively, the wife denied all allegations. She stated under oath that she was still living at the husband's parental home in Patna, along with their children. She said the petitioner had stopped communicating with her in 2016 and had moved in with another woman, Pooja Devi, from whom he had three children. She maintained that she was still willing to live with her husband and had no independent means of support. In fact, she stated that the husband only filed for divorce after she filed a petition for maintenance in 2019. That case had resulted in an order directing the husband to pay her Rs.10,000 per month from 2021 onwards. The Family Court in its order held that neither ground was proven and dismissed the petition.

The High Court in its judgement examined the findings of the Family Court and reviewed the evidence led by both sides. The Court found that the grounds of cruelty and desertion were not established. The Court specifically noted that one of the main allegations that the wife had not cared for her in-laws could not be sustained, as the father-in-law died 6-7 months after the marriage and the mother-in-law in 2016. The Court said, “the sole ground, therefore, cannot be said to be sufficient to prove the ground of cruelty of not taking care of the in-laws since the in-laws had already died way back before filing of the suit, as such, the said ground has been disbelieved by the learned Family Judge.”

As for the allegation of desertion, the Court said, “The desertion has also been taken as a ground but the desertion has been defined and interpreted by the Hon'ble Apex Court that the desertion will be said to be desertion if either of the party, on his/her own wish, has left the matrimonial house. But, no such evidence has been produced by the appellant/petitioner to prove the element of desertion showing that the respondent-wife has left her matrimonial house.”

The High Court, thus, agreeing with the Family Court's reasoning, dismissed the appeal.

Case Title: Arun Kumar vs Raj Soni Devi

LL Citation: 2025 LiveLaw (Jha) 44

Case No.: F.A. No. 172 of 2024

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