No Desertion If Wife Leaves Marital Home On The Ground That Husband Keeps 'Concubine': Chhattisgarh HC

In a significant order, the Chhattisgarh High Court has observed that if a wife leaves her matrimonial home due to the fact that her husband keeps another lady (concubine), and inflicts physical and mental torture upon her (wife), then it cannot be presumed as desertion on the part of the wife.

With this observation, the Bench of Justice Goutam Bhaduri and Justice Rajani Dubey dismissed the appeal filed by a husband/appellant against the judgment of family court wherein his (husband/appellant) filed by him for grant of decree of divorce on the ground of desertion was rejected.

The case in brief 

The appellant/husband had filed a suit for divorce decree before the family court pleading that he got married to the Respondent/Wife, 26-27 years back as per Hindu rituals and according to him, for the last about 25 years, she had deserted him and was living separately.

On the other hand, the respondent/wife denied the plaint averments and pleaded that her husband (appellant) kept one lady as his wife and asked her to go away and stay at her parental village and because of this and due to the torturous acts, she was forced to stay at her parental village.

After hearing the parties and on the basis of evidence adduced by both the parties, the Family Court dismissed the suit filed by the appellant/husband. Hence, he moved the instant appeal before the High Court.

Court's observations

At the outset, the High Court took into account the admission made by the Husband/Appellant in his cross-examination that three daughters were born to him and that the respondent was their mother.

Under these circumstances, the Court observed, the question of desertion by the wife for the last 25 years appears to be completely falsified.

"When the marriage solemnised between the parties 26-27 years back and three children were born thereafter, how it can be presumed that the wife has deserted the husband for the last about 25 years i.e. immediately after marriage," the court remarked.

Further, noting that the appellant also admitted the fact that he kept one lady as a second wife and out of that relationship he was blessed with two children, the Court said that it is apparent that during the subsistence of marriage with the respondent, the appellant had kept another lady as his wife.

The Court also remarked that as per the provisions of the Hindu Marriage Act, 1955 keeping another lady during the subsistence of first marriage is illegal, however, it chose not to deliberate on the status of the second lady.

Therefore, keeping into account all the facts and circumstances of the Case, the Court held that there was no desertion on the part of wife. The Court, importantly, remarked thus:

"The evidence would show that the appellant kept one lady as concubine; the respondent was subjected to physical and mental cruelty; and thereafter, she was forced to leave her matrimonial home as such there was reasonable cause for the respondent/wife to stay at the village of her parents though she was not intending to do so and hence it cannot be stated that the desertion was made by the wife...If the husband keeps another lady; gives shelter to her; and proceeds to have child with the said lady and for that reason if the first wife has to leave the matrimonial home because of physical and mental torture meted out to her it cannot be presumed as a desertion on the part of wife."

With this, the Court dismissed the husband's appeal.

Case title - Uttamram v. Smt. Kayaso Bai

Case Citation: 2022 LiveLaw (Chh) 12

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