Desertion as a ground for divorce requires proof of separation and intent to cease cohabitation, alongside consideration for appropriate alimony factoring the welfare of minor children.

JUDGMENT :

B.P.Routray, J.

1. Heard Mr. P.Mohanty, learned counsel for the Appellant – Wife.

2. None appears on call for the Respondent-Husband and as seen from the order sheet the Respondent remains absent for last two consecutive dates.

3. Present appeal is directed against impugned judgment dated 3^rd October 2023 of learned Judge, Family Court, Dhenkanal passed in C.P. No.11 of 2023, wherein the prayer of the husband was allowed granting decree of divorce with further direction to pay the permanent alimony of Rs.8,00,000/- in favour of the wife.

4. The parties married on 18^th April 2014 and blessed with two daughters out of their wed-lock. As per the facts revealed, the wife is residing separately along with two minor daughters at Kamakhyanagar. The husband is serving in clerical cadre in Indian Army and as per the materials produced on record he was drawing monthly salary of Rs.64,355/- in the year 2023. The learned Family Judge granted the decree of divorce by dissolution of marriage on the ground of mental cruelty and desertion.

5. It is true that allegations and counter allegations have been labeled on the part of both parties against each other and the criminal case was also registered at the instance of the wife against the husband. Both parties have examined their respective witnesses, including themselves, to substantiate their case. The husband has examined himself as P.W.1 and the wife examined herself as R.W.1. The wife has also examined her mother as R.W.2.

It is the admitted case that since 25^th February 2019 both parties are staying separately from each other and the civil proceeding for divorce was filed by the husband on 17^th January 2023. Section 13 (1) (i-b) prescribes the ground for divorce for a period of continuous desertion of two years or more immediately preceding the date of institution of the proceeding. As seen from the evidence of the wife (R.W.1) and husband (P.W.1), and read conjunctively, we are satisfied with the finding of the learned Family Judge that the desertion on the part of the wife is not substantiated with any valid reason. It is true that the cause of desertion is a matter of inference to be drawn from the facts and circumstances of each case and the conduct of the parties. The conduct parties, pre and post separation, is important to be looked into because the same would reveal their intention. In Bipin Chander Jaisinghbhai Shah vs. Prabhawati , AIR 1957 SC 176 , the Supreme Court has explained the concept of desertion as the same is a course of conduct existing independently. It is held as follows:-

“The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition or, where the offence appears as a cross- charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence. Thus the quality of permanence is one of the essential elements which differentiates desertion from willful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there., namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essenti