Desertion Requires Intention To Abandon Marital Relationship Permanently: MP High Court Upholds Denial Of Divorce To Husband

The Madhya Pradesh High Court, in an appeal filed by a husband challenging the Family Court's dismissal of his divorce petition on grounds of cruelty and desertion, has observed that for the ground of desertion to apply, the intention to permanently abandon the marital relationship must be established.  

The division bench of Justice Vishal Dhagat and Justice BP Sharma observed; 

"The appellant could not demonstrate that the respondent intended permanent separation or that she left the matrimonial home with the settled intention not to return. Desertion requires the element of animus deserendi which was not proved". 

The marriage between the couple was solemnised on March 10, 2018, but allegedly, the wife started behaving rudely, avoiding her marital responsibilities. The husband further contended that the wife constantly quarreled with him and insulted him and his family members.  

Subsequently, the wife, on December 8, 2018, left the matrimonial home without justification and thereafter did not return despite repeated requests and efforts made by the husband. The husband also contended that the conduct of the wife amounts to cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act, 1955. 

The wife, in her written statements, asserted that she had the intention to continue marital life and made sincere efforts for reconciliation, but her attempts were not reciprocated. She also contended that she was subjected to taunts and mental stress and was compelled to leave as circumstances became intolerable. 

 Before the Family Court, the husband was examined as a witness; however, no other independent witness was examined to corroborate his allegation. Additionally, the husband failed to submit documentary evidence in the form of written communications, notices, messages, complaints or medical reports depicting any act of cruelty. 

Per the Family Court's order, the husband was merely making vague assertions but failed to produce any evidence to prove his allegations or to show that the wife intentionally refused cohabitation. 

The counsel for the husband argued that the trial court failed to appreciate the oral testimony of the husband. It was further contended that imposing an unduly high requirement on documentary evidence in matrimonial disputes, where cruelty is often mental, leads to injustice. 

The counsel for the wife argued that the allegation of cruelty can be proved by cogent evidence and not through mere allegation. The wife also contended that she was willing to join the matrimonial home but was prevented by circumstances created by the appellant. 

The bench concurred with the Family Court's findings that the husband failed to demonstrate the wife's permanent intention to separate or that she left the matrimonial house with settled intention not to return.

The court empahsized that to establish the ground of desertion, the element of animus deserendi was required to be proved. The court also empahsized that the burden of proving cruelty and desertion lies on the party asserting it. 

The bench reiterated; 

"a decree of divorce cannot be granted merely because the marriage has become strained or the parties are living separately. Matrimonial ties cannot be dissolved on the basis of general allegations or because of incompatibility alone. The law requires the appellant to establish matrimonial misconduct amounting to cruelty, and the appellant has failed to establish even a single act through reliable evidence". 

The court, therefore, dismissed the appeal and affirmed the order of the Family Court. 

Case Title: AD v PS [FA-1360-2024]

Citation: 2025 LiveLaw (MP) 259

For Petitioner: Senior Advocate R.K. Sanghi with Advocate Raghav Sanghi

For Respondent: Advocate Suneesh Tiwari

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