When Spouse Refuses Offer To Cohabit Without Reasonable Cause, It Amounts To 'Constructive Desertion': Kerala High Court

The Kerala High Court has held that when the appellant-husband makes an offer to resume the marital relationship, and the respondent-wife resists without any reasonable cause, failing to resume cohabitation, it would amount to "constructive desertion". While allowing an application for dissolution of marriage, a division bench of Justices A. Muhamed Mustaque and Kauser Edappagath drew from the Supreme Court decision in Savitri Pandey v. Prem Chand Pandey (2002), where it was held that desertion may also be constructive and has to be inferred from the present circumstances.

Section 13(1)(b) of the Hindu Marriage Act, 1955 states that desertion must be for a continuous period of not less than two years immediately preceding the presentation of the petition. In the Explanation to the said provision, the word 'desertion' is defined as the desertion of the petitioner by the other party to the marriage without reasonable cause and the consent or against the wish of such party. It includes the wilful neglect of the petitioner by the other party, and its grammatical variation and cognate expression have to be construed accordingly.

Factual Matrix

After getting married in 1991, the couple lived together till 1996 and has been living separately since then. In 1996 when they began to live separately, the respondent-wife had gone to her parental home for the delivery of the second child and did not return since then.

The appellant-husband's case is that the respondent-wife left was without any reasonable cause, did not return to matrimonial home intentionally, and thus, deserted him. On the other hand, the respondent-wife alleges that she was treated with cruelty by the appellant while they were living together, and further, the appellant has contracted another marriage.

Given that the respondent-wife projected reasonable cause for living separately, the earlier petition (2002) for dissolution of marriage on the grounds of desertion was dismissed. The dismissal was based on the fact that the respondent-wife went to her own house for her second delivery; therefore, it cannot be said that she has deserted him.

In the present matter, the grounds of desertion have been raised again as, for the last twenty-five years, the couple has not stayed in cohabitation for a single day. The allegations squarely remain the same as the first petition. The respondent-wife states that for the reason of cruel treatment and another marriage of the appellant-husband, she has a justifiable cause to live separately.

Findings

Rejecting both the grounds canvassed by the respondent-wife, the Court noted that apart from the mere allegation, there is absolutely no evidence in this case or the earlier litigations that the appellant-husband exercised any cruelty on the respondent. For the allegation of having a second marriage, it observed that the appellant-husband has been acquitted of charges for bigamy under Section 494 of I.P.C. It was also noted that a criminal case against the appellant-husband for trespassing into the respondent wife's parental house and assaulting her has ended in an acquittal at the appellate stage.

The Court went ahead to note that after the dismissal of the first petition for dissolution of marriage, the appellant-husband had sought restitution of conjugal rights, which was hotly contested by the respondent-wife and ultimately dismissed. With the given facts, the Court held where the respondent-wife had resisted an offer of the appellant-husband to resume cohabitation; it would amount to constructive desertion. It noted,

"Admittedly the parties are living separately for the last more than 25 years. Since the respondent has turned down the offer made by the appellant in the original petition filed by him for restitution of conjugal rights to resume the marital relationship, it has to be held that the respondent has constructively deserted the appellant without any justifiable cause since then."

The Court took guidance from the earlier decisions of the Supreme Court in Bipinchandra Jaisinghbai Shah v. Prabhavathi (1957), explaining the constituents of desertion as (a) factum of separation and (b) intention to permanently end cohabitation. For the deserted spouse, the essential elements were (a) the absence of consent and (b) absence of conduct giving reasonable cause to the spouse leaving the marital home to form the necessary intention aforesaid.

The Court also noted that desertion is a matter of inference drawn from the facts and circumstances.

"The inference may be drawn from certain facts, which may not in another case be capable of leading to the same inference. If, in fact, there has been separation, the essential question always is, whether that act could be attributable to the animus deserendi since both the factum and animus should co-exist for a period of at least two years," the Court noted. 

Title: P.C.Kunhinarayanan v. Vijayakumari 

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