Spouses Living Separately Due To Government Service Postings Doesn't Amount To Desertion: Rajasthan High Court

The Rajasthan High Court has held that it is not uncommon for spouses employed in government services to reside at different places due to their postings and thus, mere fact of separate residence owing to such exigencies cannot by itself constitute 'desertion' to become a ground for divorce. Furthermore, the division bench of Justice Arun Monga and Justice Sandeep Shah observed that not every quarrel, harsh word, or domestic disagreement rose to the level of cruelty. It was opined that cruelty, as a ground of divorce, had to be of such nature and degree that caused reasonable apprehension in the mind of the aggrieved that it would be harmful or injurious to continue living with the other party. The Court was hearing a challenge against an order of the Family Court that dismissed husband's application for divorce. It was the case of the petitioner-husband that the respondent-wife was posted in another place for her job, and had deserted him, post which they were living separately for 27 years. During this time, he entered into a Nata Marriage with another woman with the consent of the respondent-wife. The petitioner argued that despite efforts made to restore cohabitation, the respondent had refused to resume matrimonial life with him. Hence, on account of this desertion and cruelty, continuance of the dead matrimonial relationship served no purpose. After hearing the contentions, the Court highlighted that based on the evidence on record, the petitioner was the erring party in the matter, who was trying to claim advantage of his own wrong doing. “A man who openly proclaims a second marriage during the subsistence of a lawfully solemnized first marriage, who reduces his legally wedded wife to a state of abandonment and reduces the sanctity of matrimonial law to a mere inconvenience, and who then has the boldness to approach Court of law with hands soiled by his own matrimonial wrongs, such a man must first be reminded of foundational and non negotiable principle of matrimonial jurisprudence before we advert to deal with his grievance arising from the judgment under challenge.”The Court stated that decree of divorce was not a matter of right under the Act, especially when the petitioner had himself engineered such circumstances of which he was complaining. It was opined that after deserting the respondent-wife, the petitioner was now trying to invoke the law machinery to correct a wrong by formalizing the abandonment through divorce. The Court rejected the argument of desertion by the petitioner, and held that mere fact of separate residence due to government postings could not itself be termed as desertion. Further, the Court stated that that the subsequent refusal of the respondent to cohabit with the appellant were a natural consequence of the second marriage. “A wrongdoer cannot manufacture a cause of action by first committing a wrong and then pointing to the injured party's reaction to that wrong as the basis for relief… Her refusal to return to cohabitation with a man who had taken another wife, who was living with that other woman, and who had fathered children with her, cannot be characterised as an absence of bona fide intention to discharge matrimonial duties. Where a spouse's departure from the matrimonial home is occasioned by the other spouse's wrongful conduct, the departure is not desertion in law, it is constructive desertion by the wrongdoer.”The Court observed that no wife could be expected to share her matrimonial home with a husband who had taken another woman as his wife and was living with her openly. Similarly, the Court also rejected the argument of cruelty, as claimed by the petitioner, and opined that the respondent's conduct, refusal to cohabit, complaints to the police, and resistance to cohabitation were direct result of the petitioner's wrong doing. In this background, the Court held that the Family Court was right in rejecting the divorce application since the petitioner was not able to establish either cruelty or desertion. Accordingly, the petition was rejected with an opinion that husband was not entitled to get divorce on the pleaded grounds. Title: L v PCitation: 2026 LiveLaw (Raj) 185Click Here To Read/Download Order

Spouses Living Separately Due To Government Service Postings Doesn't Amount To Desertion: Rajasthan High Court

Nupur Agrawal

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Spouses Living Separately Due To Government Service Postings Doesn't Amount To Desertion: Rajasthan High Court

Nupur Agrawal

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