Source:  High Court of Jharkhand 

Why in News? 

Recently, the bench of Justice Sujit Narayan Prasad and Justice Rajesh Kumar held that desertion cannot be established solely by physical separation unless accompanied by a permanent intention to sever the marital relationship. 

• The Supreme Court held this in the matter of Arun Kumar v. Raj Soni Devi (2025). 

What was the Background of Arun Kumar v. Raj Soni Devi (2025) Case? 

• The case involves Arun Kumar (appellant/petitioner) and Raj Soni Devi (respondent), who were married on February 26, 1996, according to Hindu rites and customs. 
• The couple has three children from their marriage: a daughter aged about 26 years, a son aged about 22 years, and another daughter aged about 20 years. 
• Arun Kumar is employed as an Assistant Sub-Inspector in the Jharkhand Police. 
• In 2019, Arun Kumar filed a petition seeking divorce under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955, on grounds of cruelty and desertion. 
• The petitioner alleged that his wife did not wish to live in a joint family, frequently quarreled with his relatives, and failed to respect or care for his parents. 
• He further claimed that the respondent had subjected him to mental cruelty, threatened to have him killed, and had allegedly conspired with others to harm him. 
• The petitioner contended that his wife had deserted him since November 15, 2016, and had not resumed conjugal relations since then. 
• He also accused her of maintaining an illicit relationship with a man named Ranjit Kumar. 
• The respondent denied all allegations and stated that she was still living at the husband's parental home in Patna with their children. 
• She claimed that the petitioner had stopped communicating with her in 2016 and had allegedly moved in with another woman named Pooja Devi, with whom he purportedly had three children. 
• The respondent maintained that she was willing to continue living with her husband and had no independent means of support. 
• She stated that the husband had filed for divorce only after she had filed a petition for maintenance in 2019, which resulted in an order directing him to pay her Rs. 10,000 per month from 2021 onwards. 
• The Principal Judge of the Family Court, Bokaro, dismissed the divorce petition, holding that neither ground of cruelty nor desertion was proven. 
• Aggrieved by this decision, Arun Kumar filed an appeal under Section 19(1) of the Family Court Act, 1984, in the Jharkhand High Court. 

What were the Court’s Observations? 

• The High Court held that desertion as a ground for divorce cannot be established merely through physical separation unless it is proven that the separating spouse intended to permanently sever the marital relationship. 
• The Court emphasized that desertion requires both the factum of separation and the intention to end cohabitation permanently and found that the husband failed to discharge this legal burden. 
• The Division Bench comprising Justice Sujit Narayan Prasad and Justice Rajesh Kumar noted that desertion is not merely withdrawal from a place but from a state of things, as the law seeks to enforce the recognition and discharge of common obligations of the married state. 
• The Court observed that the offence of desertion is a continuing course of conduct which exists independently of its duration, but as a ground for divorce, it must exist for at least two years immediately preceding the presentation of the petition. 
• The Court clarified that not every instance of separation amounts to desertion, with a critical component being the permanence of the intent behind the separation. 
• The Court noted that for the offence of desertion, two essential conditions must be present for the deserting spouse: the factum of separation and the intention to bring cohabitation permanently to an end. 
• Similarly, two elements are essential regarding the deserted spouse: absence of consent and absence of conduct giving reasonable cause to the spouse leaving the matrimonial home. 
• The Court found that the petitioner failed to produce evidence showing that the respondent-wife had left the matrimonial house of her own volition. 
• Regarding the allegation of cruelty based on not caring for in-laws, the Court observed that this ground was insufficient as the father-in-law had died 6-7 months after the marriage and the mother-in-law had died in 2016, while the divorce petition was filed in 2019. 
• The Court concluded that the appellant failed to establish any perversity in the impugned judgment of the Family Court, defined as finding "no evidence or erroneous consideration of the evidence." 

What is Desertion?  

• Desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955, constitutes the intentional permanent abandonment of one spouse by the other without consent and without reasonable cause, requiring both factum of separation and animus deserendi (intention to desert). 
• The offence of desertion is not merely withdrawal from a place but from the state of matrimonial affairs, requiring a continuous period of not less than two years immediately preceding the filing of the divorce petition. 
• The burden of proving desertion with requisite animus deserendi rests on the petitioner, and if established, the burden shifts to the respondent to prove reasonable cause for withdrawal from cohabitation. 
• Constructive desertion occurs when the conduct of one spouse compels the other to leave the matrimonial home, making the former the deserting spouse despite not physically leaving themselves. 
• Temporary separation resulting from anger or disagreement, without the intention to permanently terminate cohabitation, does not constitute desertion, as the quality of permanence in intention is essential to establish this matrimonial offence. 
• Desertion comes to an end upon genuine resumption of cohabitation with animus reconciliandi (intention to reconcile), or upon a bona fide offer to return to the matrimonial home without unreasonable conditions.