'Desertion' Under Divorce Act Means Desertion Without Reasonable Cause: Kerala High Court Denies Past Maintenance To Deserting Spouse

The Division Bench comprising Justice Sathish Ninan and Justice P Krishna Kumar were disposing of matrimonial appeals arising from a common judgment of the Family Court, Muvattupuzha.

The divorce decree was passed against the wife on the grounds of desertion and allowed the wife's claim for return of gold and money, as well as maintenance. The present appeal was filed by the husband, challenging the reliefs guaranteed to the wife with regard to the return of gold ornaments and money and also the past maintenance.

The Court examined whether a spouse against whom desertion has been established can claim for past maintenance.

The Court analysed the Section 10 of the Divorce Act, 1869, which deals with grounds for divorce. It noted that it is not explicitly stated that abandonment without a reasonable cause alone would amount to desertion.

But, it drew a comparison with the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, both of which explicitly define desertion as separation without reasonable cause.

“Though the Act does not expressly state so, in our view, the term cannot be understood otherwise; as a contrary construction would treat a spouse who lives apart for a just or reasonable cause, as guilty of a matrimonial offence, and it may lead to the severance of the marital tie—an outcome that cannot be reconciled with constitutional principles of reasonableness and fairness. The Act, being a pre-constitutional enactment, its provisions cannot be construed in isolation from the constitutional guarantees under Articles 14 and 21” Court noted

The Court further relied on A: Husband v B: Wife [2010 (4) KHC 435] and observed that matrimonial concepts such as desertion cannot bear different meanings solely based on the personal law applicable to the parties.

“Interpreting the term “desertion” under the Act in a strictly literal sense would result in hostile discrimination between similarly situated spouses governed by different personal laws, without any rational nexus, and would infringe Article 21 by compelling cohabitation in circumstances that are unjust, unsafe, or inconsistent with dignity and personal autonomy.” Court noted.

The Court thus noted that Section 10 of the Act must receive a purposive and constitutionally compliant interpretation.

The Court thus held that once a decree of divorce on the ground of desertion becomes final, it necessarily implies that the desertion was without reasonable cause. In such circumstances, the conduct of the deserting spouse disentitles her from claiming past maintenance.

The Court accordingly set aside the Family Court's award of past maintenance to the wife, while leaving undisturbed the maintenance granted to the minor child and other financial reliefs.

Case Title: Shaji Sebastian v Julie Joseph

Case No: Mat. Appeal 537/ 2014

Citation: 2026 LiveLaw (Ker) 60

Counsel for Appellant: M P Ramnath, P Rajesh, S Sandhya, Uma R Kamath

Counsel for Respondent: N K Subramanian