Snehal Upadhyay-
Published on August 03, 2021 at 1:16 PM
Kerala High Court has observed while deciding to a matrimonial dispute case that if a husband makes an offer to resume the marriage and the wife resists accepting such offer, it would amount to “constructive desertion”.
The term ‘constructive desertion’ means when a spouse coerces the other spouse to abandon the home or relationship, it’s a ground for divorce.
In the following case, the couple was married in 1991, and they lived together till 1996. In the year 1996, the wife went to her parental home during the delivery of their second child and didn’t return home.
The appellant-husband contended that she left the house without any reasonable cause, and didn’t return intentionally, and hence, has deserted him.
Whereas the respondent states that she was tortured and was cruelly treated by her husband and this was the reason to live in her parental house.
A division bench comprising of Justices A. Muhamed Mustaque and Kauser Edappagath with citing the Apex Court judgment in the case of Savitri Pandey v. Prem Chand Pandey, 2002, where it was decided that desertion could also be constructive and it has to be inferred from the present circumstances, decided this case.
As the respondent showed reasonable cause for living separately, earlier the petition for dissolution of marriage on the ground of desertion was quashed but as of now, this issue was raised again as from past twenty-five years the couple has not cohabited.
The Court also took guidance from the Apex Court judgment in the case of Bipinchandra Jaisinghbai Shah v. Prabhavathi, 1957, which has explained the constituents of desertion.
The Court further noted, “The inference may be drawn from certain facts, which may not in another case be capable of leading to the same inference. If there has been separation, the essential question always is, whether that act could be attributable to the animus deserendi, since both the factum and animus should co-exist for at least two years.”
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