Desertion, as a matrimonial offense under Section 13(1)(i-b) of the Hindu Marriage Act, 1955, requires two essential conditions: (i) the factum of separation, and (ii) the intention to bring cohabitation permanently to an end (animus deserendi). The burden of proving these elements lies with the petitioner for divorce and they must be established for a continuous period of not less than two years immediately preceding the presentation of the petition.

Dinesh Chandra Somani, J.

1. The instant appeal has been preferred by the appellant-husband under Section 19 of the Family Courts Act against the judgment and decree dated 25.08.2012 passed by the Judge, Family Court No.2, Jaipur (hereinafter referred as “the Family Court”) in Matrimonial Case No.459/2007, whereby the petition filed by the appellant-husband under Section 13 of the Hindu Marriage Act for seeking divorce, was dismissed.

2. The skeletal material facts necessary for disposal of this appeal are that the appellant-husband has filed a petition under Section 13 of the Hindu Marriage Act (hereinafter referred to as “the Act”) for seeking divorce on the ground of cruelty and desertion with averment that the appellant was married to the respondent on 28.04.1999 in Chomu District Jaipur according to Hindu rites and customs. The marriage has not been registered. Thereafter, the respondent-wife was living with the appellant/husband at Bhrahmkoop Ki Bagichi, Jaipur City. Out of the wedlock, the respondent-wife gave birth to a male child named Roshan, who is presently 7 years 6 months old. This is pleaded case of the appellant-husband that after marriage, he came to know that the respondent-wife is suffering from mental derangement and she behaves like distracted. The appellant-husband got her treated. She had been fine for a while but after sometime she started doing her own actions. Respondent-wife’s brother Kailash took a loan of Rs.80,000/- from the appellant for his son’s marriage and Pappu @ Hari Mohan took a loan of Rs.50,000/- from the appellant for marriage of his own. When the appellant-husband demanded the loan amount, the respondent-wife started misbehaving with the appellant-husband on instigation of her brothers. The respondent-wife used to blame parents of the appellant-husband on false accusations, though they were living at Kota.

3. It is also pleaded by the appellant-husband that along with son, all the jewellery and clothes given to respondent-wife from both sides, she went to her parents’ house to attend marriage of her brother Pappu @ Hari Mohan, but thereafter she did not come back to her matrimonial home and she is staying there under influence of her mother and brother. Despite request, respondent-wife did not come to her matrimonial home even when the appellant’s mother had an accident.

4. It is further pleaded that the appellant-husband, his parents and relatives made several efforts for bringing the respondent-wife back from her parents’ house but she did not come. On 15.01.2006, the appellant-husband himself went to the respondent-wife for bringing her to matrimonial home but she refused. Thereafter, the appellant-husband filed a petition for restitution of conjugal rights. During conciliation, the respondent-wife refused to live with the appellant-husband, despite payment of maintenance allowance which was settled in Lok Adalat held on 11.09.2007. It is also stated that without any reasonable cause, the respondent-wife has deserted the appellant-husband for more than two years and prayed for dissolution of the marriage and decree of divorce in his favour.

5. The respondent-wife filed her written statement. In the written statement, the respondent-wife admitted the fact of solemnization of marriage with the appellant, living together in Jaipur as husband and wife and giving birth to a male child Roshan, as pleaded in the divorce petition. The respondent-wife denied all the allegations levelled by the appellant-husband in his petition for dissolution of marriage with regard to cruelty and desertion. It has been stated by the respondent-wife in her written statement that the appellant-husband has filed the petition for restitution of conjugal rights for his escape as he had apprehension of action under Section 498-A, 406 of IPC. But the respondent-wife did not take action for 498-A, 406 of IPC, therefore the appellant-husband himself withdrew the petition filed under Section 9 of the Hindu Marri