2002 Supreme(Del) 1180

High Court Of Delhi
SUSHMA KOHLI - Appellant
Versus
SHYAM SUNDER KOHLI - Respondent
Decided On : 08/14/2002

The essential ingredients of desertion are: (i) factum of separation; (ii) animus deserdendi; (iii) separation must be without the consent of the husband; (iv) separation must be without there being any reasonable cause or excuse on the part of spouse deserting; (v) desertion must be for a continuous period of 2 years from the date when, for the first time, the spouse deserting has made up mind to desert the other spouse permanently and with no intention to join back till the completion of 2 years preceding the presentation of the divorce petition; (vi) there must be permanent intention to forsake the other spouse. The intention must be to repudiate the relationship of husband and wife and to repudiate the matrimonial obligations permanently for a continuous period of 2 years immediately preceding the presentation of the divorce petition. Thus, there must be a permanent intention to live separate.

Headnote:

HINDU MARRIAGE ACT, 1955 - SECTION 13(1)(IA), 13(1)(IB) - DESERTION - CRUELTY - IRRETRIEVABLE BREAKDOWN OF MARRIAGE - DIVORCE - GROUNDS - INTERPRETATION OF STATUTORY PROVISIONS - EVIDENCE - APPRECIATION - APPELLATE JURISDICTION - SCOPE - INTERFERENCE WITH FINDINGS OF FACT - CONDITIONS PRECEDENT - BURDEN OF PROOF - ANIMUS DESERENDI - INTENTION TO ABANDON MATRIMONIAL OBLIGATIONS - SEPARATION WITHOUT CONSENT - REASONABLE CAUSE OR EXCUSE - PERMANENT INTENTION TO FORSAKE SPOUSE - MENTAL CRUELTY - CONDUCT CAUSING DANGER TO LIFE OR HEALTH - DISCOMFORT - DEMAND OF DOWRY - INHERENT JURISDICTION OF COURT - EXERCISE - CONDITIONS - IRRETRIEVABLE BREAKDOWN OF MARRIAGE AS GROUND FOR DIVORCE - APPLICABILITY - EXCEPTIONAL CASES - DISCRETION OF COURT.

Fact of the Case:

The parties were married on 18th November 1981. They have been living separately since February 1987. The husband filed an application for divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 alleging cruelty and desertion on the part of his wife. The wife contested the application on various grounds. The Trial Court dismissed the petition. The husband preferred an appeal before the Single Judge. The Single Judge rejected the contention of the husband regarding cruelty but allowed the appeal on the ground of desertion. Both parties filed appeals against the judgment.

Finding of the Court:

1. The Single Judge erred in allowing the appeal on the ground of desertion on the part of the wife. The evidence on record did not establish that the wife had deserted the husband without reasonable cause and without his consent. The wife was forced to leave the matrimonial home due to the acts, omissions, and commissions of the husband and his parents. The husband failed to prove animus deserendi on the part of the wife. 2. The Single Judge erred in not granting a decree of divorce against the wife on the ground of cruelty. The husband had proved that the wife had treated him with cruelty by refusing to submit to his sexual advances, by making false allegations against him and his family members, and by demanding dowry. 3. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. The Court cannot exercise its inherent jurisdiction to grant a decree of divorce on this ground unless exceptional circumstances exist.

Issues: 1. Whether the Single Judge erred in allowing the appeal on the ground of desertion on the part of the wife? 2. Whether the Single Judge erred in not granting a decree of divorce against the wife on the ground of cruelty? 3. Whether irretrievable breakdown of marriage is a ground for divorce under the Hindu Marriage Act, 1955?

Ratio Decidendi: 1. The essential ingredients of desertion are: (i) factum of separation; (ii) animus deserdendi; (iii) separation must be without the consent of the husband; (iv) separation must be without there being any reasonable cause or excuse on the part of spouse deserting; (v) desertion must be for a continuous period of 2 years from the date when, for the first time, the spouse deserting has made up mind to desert the other spouse permanently and with no intention to join back till the completion of 2 years preceding the presentation of the divorce petition; (vi) there must be permanent intention to forsake the other spouse. The intention must be to repudiate the relationship of husband and wife and to repudiate the matrimonial obligations permanently for a continuous period of 2 years immediately preceding the presentation of the divorce petition. Thus, there must be a permanent intention to live separate. 2. Cruelty has been defined as conduct of such character as have because danger to life or to heath (bodily or mentally), or may raise reasonable apprehension of such danger. Discomfort by itself would not amount to cruelty. However, there can be a mental cruelty. Psychological behaviour may be amounting to or greater than results of physical danger came to be regarded as mental cruelty. 3. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. The Court cannot exercise its inherent jurisdiction to grant a decree of divorce on this ground unless exceptional circumstances exist.

Final Decision: 1. The appeal filed by the wife (LPA No. 593/2000) is allowed. 2. The appeal filed by the husband (LPA No. 82/2001) is dismissed with costs quantified at Rs. 5000/-.