Wife's Stay At Parental Home For Less Than 2-Years Not Desertion: Karnataka High Court Rejects Husband's Divorce Plea

The Karnataka High Court has held that a wife residing for less than two years at her parental home prior to presentation of divorce plea by husband is not a ground for the husband to claim desertion by wife. 

In doing so the court dismissed the husband's appeal challenging a Family Court order that rejected his divorce petition. 

A Division Bench of Justice D.K. Singh and Justice H. Shanthi Bhushan observed,

"In regard to the ground of desertion, we find that the Trial Court has rightly held that the petitioner failed to establish the essential ingredients of desertion. Though the respondent admitted that she had been residing at her parental home since 27.11.2016, the petition itself was presented on 15.12.2016 and, therefore, the requirement of continuous desertion for a period of not less than two years immediately preceding the presentation of the petition was admittedly not satisfied. The Trial Court also took note of the respondent's explanation for residing separately and found that she had pleaded reasonable justification for staying at her parental home". 

The court said that the evidence on record also does not indicate that the wife intended to permanently abandon the matrimonial relationship.

During his cross-examination, the husband categorically stated that, even if the wife was willing to return to the matrimonial home and continue the marriage, she was “not necessary” for him.

"Similarly, when P.W.2 was confronted with the suggestion that the respondent was willing to return and reside with the petitioner, she stated that the decision was “left to her”. These admissions, read along with the respondent's consistent stand that she was willing to resume cohabitation, support the Trial Court's finding that the respondent had not evinced an intention to permanently bring cohabitation to an end," the court said. 

The court said that the ordinary wear and tear and quarrels arising in the course of matrimonial life do not, by themselves, amount to cruelty.

"The Trial Court has, therefore, rightly held that the petitioner failed to discharge the burden of proving cruelty under Section 13(1)(ia) of the Act,” the High Court noted that husband's allegations were merely “bald and general assertions” against the wife without establishing any specific instances of cruelty.

Accordingly, the High Court dismissed the appeal.

Background

The marriage between the appellant husband and the respondent wife was solemnized on September 26, 2014 and a child was born out of the wedlock.

The husband approached the Family Court in 2016 seeking dissolution of marriage under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act on grounds of cruelty and desertion. He contended that the wife frequently visited her parental home without intimation, neglected household responsibilities, unilaterally took their infant child to Hyderabad, and repeatedly coerced him to set up a separate residence away from his aged parents. He claimed that despite an earlier compromise under Section 9 of the Act for restitution of conjugal rights, the wife left the matrimonial home on November 27, 2016.

The wife opposed the allegations of cruelty and desertion. She alleged that the husband repeatedly doubted her character, physically assaulted her, and subjected her to mental depression, which led her to leave the matrimonial home.