A decree for divorce on grounds of desertion cannot be granted where the petitioner actively resists the respondent's requests to resume cohabitation; conversely, where the respondent consistently expresses willingness to rejoin the matrimonial home, a claim for restitution of conjugal rights is properly allowed.

THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY COURT ACT, AGAINST THE JUDGEMENT AND DECREE DATED 14.09.2017 PASSED IN M.C.NO.4859 OF 2013 ON THE FILE OF THE IV ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, DISMISSING THE PETITION FILED UNDER SECTION 13(1)(ia),(ib) OF THE HINDU MARRIAGE ACT 1955, FOR DISSOLLUTION OF MARRIAGE.

THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON 26.03.2026 COMING ON FOR PRONOUNCEMENT THIS DAY, RAJESH RAI K, J., DELIVERED THE FOLLOWING:

CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI

and

HON'BLE MR. JUSTICE RAJESH RAI K

CAV JUDGMENT

(PER: HON'BLE MR. JUSTICE RAJESH RAI K)

1. This appeal is preferred by the husband challenging the judgment and decree dated 14.09.2017 passed in M.C. No. 4859/2013 by the Court of the IV Additional Principal Judge, Family Court, Bengaluru, whereby the petition filed by the appellant/husband under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 came to be dismissed, while the counterclaim filed by the respondent under Section 9 of the said Act came to be allowed.

2. The briefly stated facts of the case are:

The marriage between the appellant and the respondent was solemnized on 07.06.2010 at Payyanur in accordance with Hindu rites and customs prevailing in the community, both parties being natives of Kerala. The marriage was duly registered before the competent Registrar of Marriages. Following the marriage, the parties cohabited in the matrimonial home for a period of approximately six months. Thereafter, the respondent-wife proceeded to her parental home at Payyanur, Kerala, for delivery.

3. It is the case of the appellant that subsequent to the birth of the child, the respondent failed to return to the matrimonial home at Bengaluru. It is further alleged that the respondent neither permitted the appellant to see the child nor disclosed the name of the child to him. The appellant has also averred that the respondent’s conduct was marked by erratic, arrogant, and abnormal behaviour, which, according to him, caused severe disruption to his life as well as to the lives of his family members.

4. The appellant would contend that the respondent, without any reasonable cause, withdrew from his society, and that such conduct has resulted in an irretrievable breakdown of the marital relationship between the parties. It is further stated that in or about December 2010, the respondent deserted the conjugal company of the appellant, thereby constituting desertion in law. In view of the aforesaid circumstances, the appellant has sought the grant of a decree of divorce.

5. The respondent-wife contested the petition by filing her statement of objections, wherein she denied the allegations of cruelty and desertion as asserted by the appellant. She also preferred a counterclaim. In the said counterclaim, it is averred that, from the date of marriage, she discharged her duties as a devoted wife and extended love and affection towards the appellant and his family members, and that there was neither fault nor deficiency on her part requiring any rectification.

6. It is her specific case that the appellant, with an ulterior motive to contract another marriage, began neglecting her. It is stated that after the marriage, in July 2010, she joined the matrimonial home at Bengaluru, where she and the appellant resided on the first floor along with her mother-in-law, while the ground floor was occupied by the appellant’s elder brother. The respondent has alleged that her mother-in-law expressed dissatisfaction with the marriage