Wife living separately with her parents cannot be construed as desertion: Gujarat HC

Gujarat High Court while hearing a second appeal related to dissolution of marriage observed that mere circumstance that the wife has been residing separately with her parents cannot, by any stretch of reasoning, be construed as ‘desertion’ (the abandonment without consent) within the meaning of law, nor can it be held that such separate residence is sans (without) reasonable or just cause.

A single-judge bench of the high court dismissed the second appeal filed by a husband challenging lower court decisions that rejected his petition for dissolution of marriage on grounds of desertion under Section 13(1)(ib) of the Hindu Marriage Act 1955. The court said that no substantial question of law arose to warrant interference under Section 100 of the Code of Civil Procedure.

In a related proceeding under Section 9 of the Hindu Marriage Act for restitution of conjugal rights filed by the husband, the lower court had found him guilty of subjecting the wife to cruelty after a detailed trial and evidence appreciation. The court concluded that the wife was justified in refusing to resume cohabitation.

On March 31, 2023, the Additional District Judge, Surendranagar, had dismissed the husband's divorce petition, noting that the wife left the matrimonial home due to physical and mental cruelty. The judge emphasised that proven cruelty provided reasonable cause for separation, and the husband failed to establish desertion without justification.

The couple's marriage was solemnised about 10 years ago as per Hindu rites. They initially lived harmoniously, and a son was born on February 16, 2014, who now resides with the mother. The husband alleged that after the child's birth, the wife frequently stayed at her parental home without cause and permanently left on June 22, 2014, with no intention to return, also denying access to the child.