The Court held that mere separation without proof of animus constitutes insufficient grounds for desertion under Section 13(1)(b) of the Hindu Marriage Act.

CAV JUDGMENT

(PER: HON'BLE MR. JUSTICE T.M.NADAF)

This appeal under Section 19(1) of the Family Courts Act , 1984 by the husband, calling in question the judgment and decree dated 27.01.2020 in MC.No.45/2019 passed by the Principal Judge, Family Court, Chikkamagaluru. The Family Court by the impugned order dismissed the petition filed by the husband under Section 13(1(b) of Hindu Marriage Act , 1955 ('HM Act' for short), seeking divorce on the ground of desertion.

2. The parties are referred to as per their rankings before the trial Court.

3. A brief factual matrix leading to filing of the present petition are as under:

As per petitioner-husband:

4. The petitioner and respondent are husband and wife. Their marriage was solemnized on 04.12.2011 at Barageramma Kalyana Mantapa, Chitradurga as per Hindu rites and customs. After the marriage respondent joined the petitioner in her matrimonial home and lived happily till March 2015. From the wedlock, they are blessed with a female child. The respondent, subsequent to birth of the child, without there being any reason, started visiting her parental house very often and was not returning, which made the petitioner to go to her place and bring her back.

5. When the petitioner joined his work at Hassan, the respondent insisted for separate house and the petitioner has arranged for a separate house at Hassan. They lived a cordial life for few days. The respondent during the stay contacted one Mohan and both of them exchanged mobile calls and started to meet frequently. When the petitioner learnt about the exchange of messages on mobile phone, he queried with the respondent and she apologized for her act and promised to discontinue her relationship with the said Mohan. Though he has written a letter to her sister Thejasvini with regard to the aforesaid acts, the respondent prevented him from posting the said letter. However, the matter reached the family members of respondent and the family members of the respondent convinced the petitioner stating that they would correct the respondent. But, instead of advising the respondent, they threatened petitioner of filing a criminal case against him.

6. The respondent left the matrimonial home in the month of April, 2015, when her extra marital relationship has been discovered by the petitioner. Thereafter the respondent has filed a criminal case against the petitioner for the offences punishable under Section 498A of Indian Penal Code , 1860 ('IPC' for short) and Section 3 and 4 of Dowry Prohibition Act , 1961 ('DP Act' for short). A Crime registered and subsequent to investigation, the Police filed charge sheet which came to be numbered as C.C.No.873/2016. The Criminal case after trial ended in acquittal.

7. The petitioner at the earlier point of time filed a petition for divorce. The respondent after receiving notice, expressed her willingness for divorce and requested to file a joint petition. However, the respondent changed her mind and expressed her willingness to continue marital tie with the petitioner, accordingly the petitioner got the petition filed earlier dismissed, as not pressed. However the respondent subsequent to dismissal of the earlier petition did not respond properly and started continuously inflicting mental torture on the petitioner, by avoiding to reunite as per her assurance and failed to perform her marital obligation. All the requests by the petitioner for reunion went in vain. In this regard, the petitioner filed a petition before the Deputy Superintendent of Police, Hassan on 15.04.2015, to conduct a conciliation to reunite the family. Howeve