SUBMITTED BY SADHVI SINGH.

TEAM CODE : JWC -05

 Aman
Vs
Meenakshi
ADDITIONAL SESSIONS JUDGE, HIMAYA
CASE: CC-114/2022
DATE: 01/07/2022
JUDGMENT
1. The marriage between the plaintiff and the respondent was solemnized on September 16,
1967. While working as an assistant professor at government college, they lived together
for a while in Melkangayankuppam and afterwards in Thiruvannamalai. She gave birth to
a daughter named Meenakshi in September 1968 and a daughter named Dhanalakshmi in
April 1972. She moved back in with her husband after the birth of her second kid and
stayed with him for almost a year and a half. As a result of this, the responder proceeded
to mistreat and physically abuse her. When the Plaintiff was inebriated, he would abuse
the Respondent. When The Respondent couldn't take any more of the agony, she decided
to live with her parents instead of her husband. She put up with the abuse as a devoted
wife who cared about her two children and wanted to remain in her marriage. Her
husband, his mother, and his sister had subjected her to a lifetime of abuse, and she was
unable to stand it any longer.
2. At the behest of the Plaintiff, his mother Chinnammal and sister Kullayee abused her as
well. In 1973, she was ultimately evicted from the residence. Since that time, she has
been living with her parents in Puliyur.
3. During this period, an illicit relationship with a lady that the Plaintiff began to see often
evolved.
 4. The Plaintiff didn't even try to get The Respondent back, and after three years, he filed
for divorce, citing the Respondent’s desertion as grounds for the divorce.
5. He refused to return her because he developed an illicit relationship with another woman
named Rose and planned to marry her, the daughter of his sister Kullayee. Kullayee and
her kid were both staying with the respondent during the period. The fact that the plaintiff
refused to agree to a second marriage was a contributing factor in the abuse she endured
and the eventual expulsion from the home. When she went to the respondent twice with
Pachai Ammal, she asked him to take her back.
6. For some time, the complainant was putting her parents through excessive financial and
land demands. Her father and panchayat cars made several efforts to convince the
responder to return to her, but he insisted on marrying his niece Rose instead.
7. In order to prove desertion, there must be not only the reality of separation, but also a
purpose to permanently dissolve the marriage and cohabitation, as shown by the
foregoing choices. In the case of Bai Appibai vs Cooverji1, it was established that There
can be no desertion if there is no animus deserendi. If the husband is responsible for his
wife's absence from the home, it cannot be argued that she abandoned him in order to
qualify for the provision in question. If the woman has no good cause to leave her
husband, even then, she cannot be accused of desertion and be granted a divorce decree
by the court against her husband.
8. According to Section 23(1) of the Hindu Marriage Act, whether or not the petition is
defended, the petitioner cannot take advantage of his or her own wrong while filing for
divorce or other reliefs under the Hindu Marriage Act.
9. Analyzing this case in the light of judgments cited above, let us see whether the husband
has made out a case of desertion in order to get a divorce in this instance, or if there is no
such case.
10. In light of Section 13(1)(i-b) of the Hindu Marriage Act, the counsel for the appellant
argued that the desertion should be continuous for at least two years prior to the filing of
the petition.

11987 AIR 155

 11. Lawyers on both sides referred me to Lachman Uttam Chand Kirpalani v. Meena2,
and they argued that the filing of a petition would not stop the desertion, even if it was
shown that the petition's allegation was not genuine. Because the respondent has failed to
show desertion on the basis that the appellant-wife departed him with the aim of
separating permanently and that there was animus deserendi, this point is of little
significance. Even if the petition was never filed, the fact that it existed is crucial in
determining whether or not the wife has deserted the marriage.
12. The respondent's learned counsel argued that under Section 23(1)(d), the petition must be
rejected if there has been an unlawful or needless delay. This means that only the
husband's petition, which comes after the notification in 1974 and after the wife's petition
for restoration of conjugal rights, must be rejected on this basis if the aforementioned
ratio is used. Respondent's counsel further argued that the wife's willingness to come
back home and live with the husband was not unconditional since she insisted on sending
his sister and her kid back as a condition of her return. Because the woman is allowed to
urge her husband to make required adjustments so that she may live comfortably with
him and prevent ill-treatment from his sister and his growing familiarity with her
daughter, this position has no basis in fact. 'Desert' implies to leave a spouse or partner
without good reason and/or with their consent/against their will. As a matter of fact,.
Despite continuous legislation on the issue of marital law, no effort has been made to
define desertion under the Common Law of England, which is why this term is not
particularly useful. Case law has developed around the meaning of desertion as a result.
The term marriage in the Act refers to a Hindu marriage, whether committed before or
after this Act was enacted. The terms husband and wife refer to a Hindu husband and
wife, respectively.
13. Until 1858, the sole legal recourse for desertion in England was a claim for reinstatement
of marital rights, which may take years to win. However, under the Matrimonial Causes
Act of 1857, a couple might sue for judicial separation if their spouse had abandoned
them for more than two years without good reason. Matrimonial Causes Act, 1937, made
desertion without reason for three years immediately before the filing of proceedings in

2 1957 AIR 176, 1956 SCR 838

 1937 a basis for divorce. The Matrimonial Causes Act, 1950, has now integrated all of
the laws relating to marriage3. It seems that desertion as a basis for a divorce claim in
England is a very recent development. What exactly is the term desertion? The standard
Rayden on Divorce The case law on the matter has been summarized in the following
terms:- If a spouse intends to break up their relationship with another without justifiable
cause and without the other's agreement, they are seen to be deserting. However, the
actual act of a spouse's departure does not necessarily constitute that spouse the deserting
partner. Halsbury's Laws of England, 3rd ed., Vol. 12, paras. 453 and 454 summarize the
legal situation excellently, as follows:- Defined simply, desertion is the act of one spouse
purposefully and permanently abandoning the other without the other's agreement or
good reason. In this way, marriage's responsibilities are completely disregarded. There is
no universal definition of desertion because the circumstances and forms of living
involved are so diverse, the Court has opposed defining desertion. Because what the law
aims to enforce is the acknowledgment and discharge of shared responsibilities in the
marital state, a condition of things often referred to as the home is commonly referred to
as desertion. Desertion may occur even when there has been no prior cohabitation or
when the marriage has not yet been consummated.
14. The departing partner is not always the one who makes the decision to end the
relationship., An excuse for desertion is not an excuse for making an allowance to a
woman who has been abandoned by her husband. In order to qualify as a basis for
divorce, a course of behavior must have existed for at least three years prior to filing the
petition or, in cases where the crime appears as a cross-charge, the response. While
adultery and cruelty are legal grounds for divorce, desertion varies in that the crime
establishing the cause of action of desertion is not complete, but rather inchoate, until the
suit is formed. The crime of desertion is a recurrent one.
15. Desertion and willful separation are distinct in that desertion lacks the character of
permanency that intentional separation has. There will be no desertion if one spouse
abandons the other for a short period of time because of a transient passion, such as rage
or disgust. ' Desertion is a crime if the deserting spouse fails to meet two requirements:

3(14 Geo. VI, c. 25 ).

 (1) the actuality of separation and (2) the desire to permanently stop cohabitation (animus
deserendi ). In the same way, the absence of consent and the absence of conduct giving
reasonable cause for the spouse leaving the matrimonial home to form the necessary
intention aforesaid are both essential in the case of the deserted spouse. Both spouses
have to be proven guilty by the petitioner in order for divorce to be granted. The Bombay
Legislature passed its own version of the legislation, which differs from English law in
this respect. However, the Act specifies a term of four years, rather than the three years
required by English law, in which those key elements must be in place prior to a divorce
case being commenced. No determination is required in this instance as to whether or not
the deletion of the last phrase has any practical effect.
16. Desertion can only be inferred based on the specifics of each situation. 4 If the inference is
to be drawn, it must take into account both the intention revealed by the actions
themselves and those that occurred before and after those acts of separation that led to the
behavior and expressions that led to the inference. If there has been a separation, the most
important consideration is whether or not it was caused by an animus deserendi.
Separation and the animus deserendi are required for the crime of desertion to be
committed. While starting at the same time would be ideal, it is not required. One of two
things could be happening simultaneously: either the separation and animus deserendi are
occurring at the same time or one spouse is abandoning the marital home out of an
explicit or implicit desire to end cohabitation permanently. There must be a continuous
period of at least three years in England and four years in Bombay during which the two
criteria must exist. In the case of Surjit Kumar vs Smt. Raj Kumari5 When one spouse
uses the locus poenitentiae provided by law and decides to return to the deserted spouse
with a genuine offer of resuming the matrimonial life with all its implications, before or
even after the statutory period has expired, unless divorce proceedings have been
initiated, desertion ends. If the deserted spouse refuses the offer for any reason, the offer
is deemed unreasonable and the desertion is declared complete. As a result, the
abandoned spouse must confirm the marriage and be ready and eager to restart marital
life under whatever circumstances are acceptable for the whole time of the desertion.

4 AIR 1999 SC 786

5 AIR 2001 SC 876
 Furthermore, it is generally established that in divorce procedures, the plaintiff must
show the crime of desertion, like any other marital offense, beyond a reasonable doubt.
17. There must be proof that the deserting spouse was intent on leaving during the whole
time span. The petitioner's state of mind should be taken into consideration by the court
while evaluating whether a case of desertion without reason has been proven on the
evidence. As long as the facts show that a petitioning husband has made it clear to his
deserting wife that he won't be welcoming her back, or if he has rejected all of her
attempts to get back together, she can't claim that she's been deserting without a reason 6.
As a matter of fact,. Of course, the defendant didn't say she had left her husband's house
in Mumbai because of what we've just learned about her circumstances. She, on the other
hand, maintained that her husband had engaged in constructive desertion by fleeing the
marriage. She has not been able to back up her claims with trustworthy proof in that
instance, as has previously been noted. However, the fact that the defendant has failed so
miserably does not automatically imply that the plaintiff has proven his case. By law, the
plaintiff must show the court that the defendant had gone on a long period of desertion
that lasted for a total of four years. If the events of May 24, 1947, are found to be
consistent with both of the competing explanations, it is clear that the plaintiff has failed
to prove beyond a reasonable doubt that the defendant was guilty of desertion. The
plaintiff's claims and his testimony in court need to be supported by more proof, therefore
we'll look into that. The petitioner has the burden of proving that desertion without reason
continued over the whole statutory time. During the three-year term, the deserting spouse
must be demonstrated to have persevered in his or her desire to desert.
18. In theory, the petitioner would have to demonstrate that the desertion occurred against
their will and continued throughout the statutory period without their consent, but in
practise, it is accepted that once the desertion was started as a result of the fault of the
deserting spouse, it is no longer necessary for the deserted spouse to demonstrate that
during the statutory period, the desertion continued without their consent. However, such
inference may be rebutted. As a matter of fact,. This is a hypothetical example, but if the
plaintiff is truthful, he might claim to have been fully committed to his marriage and that,

6Supra
 as far as he is aware, the defendant's desertion did not stop until beyond the required
term. There is no ambiguity in the letter. Not only was there no mention of desertion in
that letter, but he was also unwilling to let her back into the married house.
19. Thus, in light of the material placed before us and the arguments of both the parties, we
are of the opinion that the act of the plaintiff of intending to marry another woman
showed clearly his intention to desert the respondent. Since one cannot take an advantage
of their on wrong, the appeal is dismissed with costs.