Desertion Means More Than Physical Separation, Includes Willful Neglect: Delhi High Court

Allahabad High Court, comprising Justice Vivek Chaudhary and Justice Om Prakash Shukla, set aside a Family Court order and granted a decree of divorce in favor of the appellant-husband. The case, arising under Section 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955, revolved around allegations of cruelty and desertion.

The Court found no sufficient evidence of cruelty but ruled in favor of the husband on the ground of desertion, citing over eight years of separation and the respondent-wife’s disinterest in reconciliation or litigation.

The appellant alleged that the respondent-wife displayed cruel behavior, including consuming alcohol, associating with male friends, and creating a hostile environment. However, the Court observed that:

The allegations lacked specific instances or evidence to substantiate claims of cruelty.
Consuming alcohol alone, without proof of resultant abusive or disruptive behavior, does not amount to cruelty.
General claims about phone calls or association with male friends were unsupported by concrete evidence.
The Court upheld the Family Court’s finding that the ground of cruelty was not proven.

The Court found that the respondent-wife had been living separately since November 29, 2016, and the appellant had filed the divorce petition in July 2020, fulfilling the statutory requirement of two years' continuous separation under Section 13(1)(i-b). The Court observed:

Desertion under the Hindu Marriage Act implies a willful abandonment of matrimonial obligations without reasonable cause.
The respondent’s refusal to return, coupled with her non-participation in the trial and appeal proceedings, evidenced her intent to permanently forsake the marriage.
The Court emphasized that the respondent’s affidavit, expressing consent for divorce and disinterest in contesting the appeal, further validated her lack of intent to continue the marital relationship.

The Court highlighted that the eight-year-long separation had rendered the marriage emotionally dead. Referring to the Supreme Court’s ruling in Rakesh Raman v. Kavita (2023), the Court reiterated: "Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. Refusing to sever the tie does not serve the sanctity of marriage but causes mental cruelty."

The respondent’s prolonged absence and refusal to reconcile confirmed the irretrievable breakdown of the marriage.

The Court took note of the respondent-wife’s procedural conduct:

She did not participate in the Family Court proceedings.
She failed to contest the appeal despite proper service of notice.
Her affidavit consenting to divorce indicated her disinterest in the marriage and litigation.
The Court held that her non-participation and willful neglect amounted to constructive desertion.

The High Court allowed the appeal and set aside the Family Court’s order dated February 12, 2021, which had dismissed the husband’s divorce petition. The Court dissolved the marriage under Section 13(1)(i-b) of the Hindu Marriage Act, granting a decree of divorce based on desertion.

This judgment reaffirms that long periods of separation, coupled with the unwillingness of one spouse to reconcile or contest divorce proceedings, constitute sufficient grounds for dissolution of marriage under the Hindu Marriage Act. The Court emphasized the need to prioritize the emotional well-being of both parties when the matrimonial bond is irretrievably broken.

Date of Decision: January 8, 2025