A spouse cannot establish desertion where they refuse the other spouse’s genuine efforts to resume cohabitation.

The parties married on 15 May 2011 and had a son in 2012.

The husband alleged that the wife left the matrimonial home in 2012 and sought divorce on the ground of desertion in F.C.O.P. No. 156 of 2018.

The wife sought restitution of conjugal rights in F.C.O.P. No. 151 of 2018.

The Family Court dismissed the husband’s divorce petition and allowed the wife’s petition for restitution.

The husband appealed both orders under Section 19 of the Family Courts Act, 1984.

Whether the husband proved that the wife deserted him so as to justify divorce

Whether the Family Court’s order allowing the wife’s petition for restitution of conjugal rights warranted interference on appeal

The appeals were brought under Section 19 of the Family Courts Act, 1984.

Desertion requires separation and an intention permanently to end cohabitation (animus deserendi), without the other spouse’s consent and without reasonable cause; the spouse seeking divorce bears the burden of proving the relevant elements.

Relying on Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73, and the principles drawn from Bipinchandra Jaisinghbhai Shah v. Prabhavati and Lachman Utamchand Kirplani v. Meena alias Mota, the Court treated desertion as a continuing course of conduct to be inferred from the parties’ circumstances and conduct.

The Court found no adequate proof that the wife had deserted the husband within the governing legal test.

It noted that reconciliation efforts had occurred in 2016 and that the husband had refused to join the wife, while she had taken steps toward reunion.

On that record, the Court considered the husband’s refusal to resume cohabitation inconsistent with his claim that the wife was the deserting spouse.

It therefore found no basis to disturb the Family Court’s dismissal of the divorce petition or its grant of restitution of conjugal rights.

It dismissed both civil miscellaneous appeals, confirmed the common judgment and decree dated 23 April 2019 in F.C.O.P. Nos. 151 and 156 of 2018, made no order as to costs, and closed the connected miscellaneous petition.