Mere Separation Without Animus Deserendi Not Ground For Divorce: Patna HC
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Holding that mere physical separation between spouses without the intention to permanently end cohabitation does not constitute desertion, the Patna High Court dismissed a husband's appeal seeking dissolution of marriage on the grounds of cruelty and desertion. The Court affirmed that unsubstantiated allegations of an illicit relationship made by a spouse cannot be treated as a proved circumstance of mental cruelty to grant a decree of divorce.
A Division Bench comprising Justice Bibek Chaudhuri and Justice Rana Vikram Singh was hearing a matrimonial appeal filed under Section 19(1) of the Family Courts Act, 1984 against the decision of the Family Court, which had dismissed the husband's petition for divorce filed under Section 13(1) of the Hindu Marriage Act, 1955.
Key Takeaways
Animus Deserendi Mandatory: Physical separation alone, regardless of duration, does not amount to desertion unless accompanied by a continuous intent to permanently terminate cohabitation.
Unsubstantiated Allegations Fail: Serious allegations of an illicit relationship or physical violence must be established through concrete proof and particulars rather than vague assertions.
Burden of Proof on Petitioner: The spouse seeking divorce bears the burden of establishing both the factum of separation and the absence of reasonable cause or consent.
Court Observations and Rationale
Evaluating the ground of desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955, the Court stressed that the husband failed to demonstrate that the wife voluntarily withdrew from matrimonial society with the intention to end cohabitation. Citing Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi ( "2002 (1) SCC 308": 2001 CaseBase(SC) 223), the Bench emphasized the legal principles governing desertion.
The Court, in its reasoning, observed: "'Desertion' in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are: 1. the factum of separation; 2. the intention to bring cohabitation permanently to an end - animus deserendi; 3. the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period... From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes wilful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi)."
Addressing the ground of mental cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955, the High Court relied on Samar Ghosh v. Jaya Ghosh ( "(2007) 4 SCC 511": 2006 CaseBase(SC) 1119) to reiterate that mental cruelty must be evaluated on the peculiar facts of each case. The Court noted that the husband failed to even name or identify the person with whom his wife was alleged to have maintained an illicit relationship. Furthermore, the allegation of physical assault remained uncorroborated by medical evidence.
The Court has following directions:
"Accordingly, the present appeal, being devoid of merit, is dismissed. The judgment and decree, dated 05.07.2023, passed by the learned Principal Judge, Family Court, Vaishali at Hajipur in Matrimonial (Divorce) Case No. 222 of 2017, is, hereby, affirmed."
Ratio
To establish desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955, a petitioner must prove both physical separation and animus deserendi continuing throughout the statutory period; mere absence of cohabitation without intention to abandon matrimonial obligations permanently does not suffice. Furthermore, unproved and generalized allegations of infidelity or cruelty without concrete particulars or corroborative evidence cannot form the foundation for a decree of divorce.
Background
The parties were married on June 29, 2001, and had a male child born in 2004. After residing separately for several years, the husband filed a divorce petition before the Principal Judge, Family Court, Vaishali at Hajipur, alleging cruelty and desertion. He asserted that the wife abused his family, threw hot tea at his mother, neglected their child, and maintained an illicit relationship with a brother-in-law.
The wife denied all allegations, contending that she was ousted from the matrimonial home following dowry demands. She submitted that she remained willing to reside with her husband and had also approached the Delhi Women Commission and initiated maintenance proceedings. She specifically pointed out that she had no sisters, rendering the allegation of an illicit relationship with a brother-in-law baseless.
The Family Court dismissed the husband's divorce petition on July 5, 2023. On appeal, the Patna High Court found no perversity in the Family Court's decision, affirming that the husband failed to discharge the burden of proof for cruelty or desertion.
Case Details:
Case No.: Miscellaneous Appeal No.638 of 2023
Case Title: Avinash Kumar v. Sarita Devi
Appearances:
For the Petitioner(s): Mr. Surendra Kishore Thakur
For the Respondent(s): Mr. Surendra Prasad Singh
Source: 2026 CaseBase(PAT) 104
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