The court established that willful and deliberate intention not to resume cohabitation, as evidenced by actions and admissions, can constitute desertion under the Hindu Marriage Act, 1955.

JUDGMENT

Pushpa V. Ganediwala, J. - This is the wife's appeal under Section 19 of the Family Courts Act, 1984 against the judgment and decree dated 19/06/2018 in petition No. A-914/2013 passed by the Judge, Family Court No. 4, Nagpur by which a decree of divorce in favour of the respondent/husband on the ground of the desertion under Section 13(1)(i-b) of the Hindu Marriage Act, 1955 (for short "Act of 1955"), is granted.

2. The necessary facts leading to the filing of the present appeal are as under :

i) The marriage between the parties was solemnized on 22/05/2002 at Nagpur. Out of this wedlock, they have one daughter by name Shreya, born on 15/06/2005, presently in the custody of the appellant/wife.

ii) The respondent/husband filed a petition for divorce on the ground of cruelty and desertion under Section 13(1)(i-a)(i-b) of the Act of 1955. The learned Judge, Family Court, Nagpur granted decree of divorce on the ground of desertion only. This judgment is impugned by the appellant/ wife in the present appeal. As the decree of divorce on the ground of desertion is challenged, we restrict the facts of the case to this ground alone.

iii) It is the case of the respondent/husband that since 18/12/2008, the couple is residing separately as the appellant/ wife left his company along with her belongings without his consent and without informing him. The respondent/husband further states that many a times, he tried to fetch her back, but all his attempts turned futile. He was not even allowed to talk with their daughter Shreya. He even sent a legal notice to fetch her back and also filed a petition for restitution of conjugal rights under Section 9 of the Act of 1955, however, the same got dismissed in default. The appellant/wife and her father filed a series of criminal complaints against him. As the appellant/wife was reluctant to resume cohabitation, the respondent/husband filed a petition for divorce on the ground of cruelty and desertion.

iv) The appellant/wife in her written statement below Exhibit 13 denied all adverse allegations with regard to cruelty and desertion. In her specific pleadings, she alleges some incidents of physical assaults. She also alleges one incident of miscarriage due to his beating. She justified her living separately from the respondent/husband on account of mental and physical harassment by the respondent/husband and his family members. Lastly, she alleges that the respondent/ husband himself willfully deserted her and is residing with one another lady.

v) The learned trial Court, on the basis of the pleadings of the parties, framed necessary issues and recorded evidence as led by the parties. Prior to that, the learned trial Court made abortive attempts to reconcile the dispute between the parties through the process of Alternative Dispute Resolution (ADR). The respondent/husband examined himself as PW-1 while the appellant/wife examined herself as DW-1, her father - Shri Ramesh s/o Govindrao Mate as DW-2 and her daughter - Ku. Shreya as DW-3. The parties have also brought on record certain documents. The learned trial Court considered the evidence on record and the submissions advanced on behalf of both the parties. The learned trial court found that the respondent/husband has proved the ground of desertion, therefore, he is entitled for a decree of divorce. The learned trial Court also recorded the finding that there is no bar under Section 23 of the Act of 1955 in granting decree of divorce in favour of the respondent/husband.

3. We have heard Shri Upadhyay, learned counsel for the appellant and Shri Gupta, learned counsel for the respondent. We have also perused the record and proceedings with the assistance of both the learned counsel.

4. The following point arose for our consideration :

"Whether the respondent/husband has proved that the appellant/wife, without any reasonable cause and without the consent or against the wish of the respondent/husband, deserted him for a continuous period of not less tha