Temporary separations followed by resumed cohabitation do not establish desertion absent animus deserendi.

The parties married on 23 January 1998 and had a son.

The husband alleged that the wife repeatedly left the matrimonial home, failed to resume cohabitation despite interventions by elders and panchayat members, and thereby caused cruelty and desertion.

He sought divorce in H.M.O.P. No. 42 of 2015.

The wife denied the allegations, maintained that she was willing to live with her husband, and said that the articles she took belonged to her.

The Family Court granted divorce on grounds of cruelty and desertion, also finding that the marriage had irretrievably broken down.

The wife appealed under Section 19 of the Family Courts Act.

Whether the wife’s periods of living separately from the husband established desertion sufficient to sustain the divorce decree

Whether the parties’ disputes, complaints to authorities, and separation established cruelty or irretrievable breakdown warranting divorce

The Court applied the principles on desertion stated in Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73, which relied on Bipinchandra Jaisinghbhai Shah v. Prabhavati and Lachman Utamchand Kirpalani v. Meena: desertion requires both the factum of separation and the intention permanently to end cohabitation (animus deserendi), together with the absence of the deserted spouse’s consent and the absence of reasonable cause for the separation.

Desertion is a continuing course of conduct and must be assessed from the circumstances of the case.

The Court also held that resort to legal forums for relief, by itself, does not constitute cruelty.

Although the appeal challenged a divorce decree on grounds of cruelty and desertion, the judgment did not expressly identify the relevant provisions of the Hindu Marriage Act.

The Court found that the wife had returned to the matrimonial home on several occasions following intervention by elders and panchayat members, and that the parties had cohabited, including having a child.

On the evidence and pleadings, the husband had not established the wife’s intention permanently to end cohabitation or the other elements required to prove desertion.

The parties’ complaints to various forums were exercises of their right to seek legal remedies and did not, without more, establish cruelty.

The Court therefore held that the evidence did not support the Family Court’s findings of cruelty, desertion, or irretrievable breakdown.

The connected miscellaneous petition was closed, with no order as to costs.