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Where there is an absolute denial of the obligation of marriage that would amount to
desertion.-Sukumar Mukherjee V.Tripati Mukherjee AIR 1992 Pat.32
2. Cruelty may depend upon the type of life the parties are habitual of, their economic and social
conditions, cultural and human values to which they attach importance may also lead to the
conclusion, whether the instance falls within the expression “cruelty”.-Narayanan V. Sri Devi AIR
1990 Ker 151.
3. Where the wife refuses to have sexual intercourse and there in no reason for such refusal, that
would amount to cruelty subjected to husband.- Radhey Shyam v.Kusum 1990 (2) HLR 230
4. If the wife has left the house of her husband and was living away from him without any
reasonable cause, can the husband be entitled to judicial separation or divorce? Is there a time
period for filing of divorce petition?
A. In case the wife has left the house of the husband and is living away from him without any reasonable
cause, the husband is entitled to judicial separation or divorce. The condition however, is that the
desertion of the wife should be for a continuous period of not less than two years, immediately preceding
the presentation of the petition for grant of judicial separation or divorce. Thus, in order to entitle you to
file a petition for divorce, you would be required to prove that your wife has deserted you without any
reasonable cause and has been living separately for a continuous period of two years.
In addition, you should be aware that certain circumstances and/or acts prohibit the ground of
desertion being used as a ground of divorce. Examples of such circumstances and/or acts are
where:
You and your spouse agree to live apart (including a decision to do so after the
respondent has left the family home)
A court grants a decree of judicial separation
The respondent made a reasonable offer to resume cohabitation that you unreasonably
refused
The respondent has given you a reason to stay away from the home, for example, he/she
commits adultery
You and the respondent resume cohabitation for a long period. A period of up to six
months where you both attempt reconciliation will not prohibit the use of this ground.
However, it must be added to the two year period leading up to your petition. For
example, if you have lived separately for precisely two years but have resumed
cohabitation for four months of that time, you will not be able to petition for a divorce
until two years and four months have lapsed.
Desertion is a fairly rare ground for obtaining a divorce today as it is a complicated fact to prove.
Consequently, you are advised to rely upon this fact only if the other facts do not apply to you.
Factum of separation i.e. willfully staying separately from the deserted spouse.
An intention to bring a permanent end to cohabitation.
Absence of consent to the separation on the part of deserted spouse.
Absence of any action by the deserted spouse providing justified reason to the spouse to
leave the matrimony home.
IN THE HONOURABLE COURT OF NBM COLLAGE
AT VISAKHAPATNAM
BETWEEN:
AND:
It is unfortunate that the laws made for the benefit of women’s are being misused than
used for their benefit. It is the reason for acquittal of 85% of 498-A cases.
1. I submit that the appellant is before this Honourable Court in an appeal against the orders
of the Honourable High Court for declining to grant divorce.
2. The case of the appellant and the undisputed facts are the marriage of the appellant and
respondent took place 1994 and the respondent left the matrimonial home in 1996. The appellant
issued a notice of Restuation of conjugal rights (RCR) in 1997 as a counter blast the respondent
filed a criminal case in 1998 making allegations of cruelty against the appellant. Which ended in
an acquittal. Having understood the mind of the respondent that the respondent is not interested
to join the matrimonial home to lead a happy conjugal life.
3. The appellant filed a matrimonial case for grant of divorce on two grounds.
1. Desertion
2. cruelty
4. The courts below surprisingly did not grant divorce and passed a decree for judicial
separation. Now the only question before this Honourable Court is whether the appellant is
entitled for a decree of divorce.
5. The respondent left the matrimonial in the year 1996 at her will without any cause neither
she was employed nor having any other avagations to leave the matrimonial home .
6. It is clear from the undisputed facts of the case that the appellant has made every effort to
restore the marriage between them.
7. As such it is clear that there is voluntary desertion by the respondent from the
matrimonial home on this ground alone. The Honourable Court may be please to pass a decree of
divorce.
Now I came to the point of cruelty.
a. I submit that it is settled law that when a wife file’s an application under 498-A
making untruthful wild allegations against the appellant which cause mental
agony and sufferance to the appellant are sufficient grounds to prove the cruelty
of the respondent.
b. I submit that the Honourable Court may be please to pass a decree of divorce
appellant as against the respondent by awarding costs throughout.
same question.
respondent.