Isabella Mariam

The High Court of Delhi Division Bench of Justice Anil Kshetrapal and Justice Harish Vaidyanathan Shankar upheld a family court decree dissolving a marriage under Section 10(1)(ix) of the Divorce Act, 1869, on the ground of desertion. The Court observed that cordial exchanges between a husband and wife cannot be equated with a bona fide attempt to restore matrimonial life, noting that the wife had voluntarily withdrawn from cohabitation since December 2011 and later relocated abroad without reasonable cause. Dismissing her appeal, the Bench affirmed that the statutory requirements of desertion were duly satisfied.

The appellant-wife and respondent-husband were married on 26 December 2007 in accordance with Christian rites. The marriage was consummated but remained childless. The wife alleged hostile treatment by her in-laws, claiming humiliation and restrictions within the matrimonial household, while asserting that the husband failed to intervene.

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In July 2008, the couple moved to a rented accommodation in Vasant Kunj. The wife alleged that despite her desire to start a family, the husband, under his mother’s influence, declined, citing medical complications and the possibility of divorce. On 9 February 2009, the wife attempted suicide by consuming Dettol. She did not file any complaint regarding this incident. By July 2009, the couple vacated their residence, with the husband returning to his parental home and the wife staying with relatives.

The wife travelled to the USA for work in July 2009 and returned later that year. Upon return, she alleged that the husband refused to take her back into the matrimonial home. Through family intervention, they resumed cohabitation in April 2010. In December 2011, the wife moved to a rented house, assisted by the husband. In November 2012, she relocated to Doha, Qatar, for employment. Around the same time, the husband accepted a role in Nigeria, where he worked until 2014.

While the wife claimed that she maintained communication via emails and calls, both parties admitted that no contact existed after 2014. In 2015, the wife’s brother approached the husband, and according to the husband, a draft divorce petition by mutual consent was prepared but not signed. The wife initiated mediation proceedings in 2015, which failed as the husband did not participate. On 6 November 2017, the husband filed a petition for divorce under Section 10(1)(ix) and (x) of the Divorce Act, citing desertion and cruelty.

The wife filed her reply along with a counter-claim seeking restitution of conjugal rights under Section 32 of the Divorce Act. The family court dismissed the cruelty ground but accepted desertion, granting divorce in May 2022. The wife appealed, contending that her departure was forced by hostility and that she always attempted reconciliation. She also challenged the husband’s remarriage during the pendency of the appeal. The respondent supported the decree, asserting prolonged separation and lack of intent on the wife’s part to resume cohabitation.

The Division Bench recorded that the family court had framed three issues: cruelty, desertion, and restitution of conjugal rights. The court noted that findings on cruelty and restitution were not challenged in appeal, leaving desertion as the sole question.

The court reproduced the family court’s analysis of desertion: “In order to prove the ground of desertion, petitioner has to prove firstly, the factum of separation, and secondly, the intention to bring cohabitation permanently to an end i.e. animus deserendi.” It further observed: “In the present case, both parties had admitted that they are residing separately since 01.12.2011… Thus factum of desertion is proved by petitioner.”

The Bench agreed that the wife’s allegations of mistreatment by her mother-in-law were uncorroborated. The judgment recorded: “It is also not the case of the respondent that the atrocities allegedly committed by the mother in law… were either approved or accepted or initiated by the conduct of the petitioner.” The court noted the absence of complaints or evidence substantiating such claims.

On the element of animus deserendi, the judgment recorded: “Petitioner has specifically and categorically stated that Respondent is residing away from him without any reasonable cause or explanation.” It stated that the burden shifted to the wife to show reasons, which she failed to establish. The court stated her relocation to Doha without informing the husband, noting: “This sequence of events supports the conclusion that she had no intention of resuming cohabitation despite having ample opportunity.”

The judgment also observed: “The Appellant’s claim of constructive desertion, premised on alleged ill-treatment by the Respondent’s mother, also lacks substantiation.” It further stated: “Cordial exchanges cannot be equated with a bona fide attempt to restore matrimonial life.” The Bench endorsed the family court’s conclusion that the wife never demonstrated willingness to resume marital life.

On the issue of subsequent remarriage by the husband, the Bench recorded: “Examining the same within the present proceedings serves no purpose. The appeal has independently failed on merits, and the decree of divorce granted by the learned Family Court remains undisturbed.” The court noted that the wife had already instituted a separate petition challenging the validity of the second marriage.

The Bench affirmed the family court’s decree, stating: “We find no merit in the present appeal and are not persuaded to interfere with the well-reasoned judgment of the learned Family Court.” It added: “The decree of divorce granted under Section 10(1)(ix) of the Divorce Act stands on firm legal and factual foundation and, accordingly, merits affirmation.”

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“With regard to the Appellant’s allegation concerning the Respondent’s subsequent remarriage during the pendency of this appeal, we are of the opinion that examining the same within the present proceedings serves no purpose. The appeal has independently failed on merits, and the decree of divorce granted by the learned Family Court remains undisturbed.”

“We also note that the Appellant has already instituted a separate petition under Section 27 of the Special Marriage Act, 1954, read with Section 7 of the Family Courts Act, 1984, bearing M.C. No. 85/2025, before the Family Court at Bengaluru, Karnataka, seeking a declaration that the Respondent’s alleged second marriage is void. In light of the pendency of that petition, further, we see no reason to adjudicate upon or express any opinion on the validity of the Respondent’s subsequent marriage in the present appeal.”

“Consequently, the present appeal, along with all pending applications, if any, stands dismissed.”

Advocates Representing the Parties

For the Appellant: Mr. Zishan Alam Siddiqui, Mr. Akash, and Ms. Amisha Upadhyay, Advocates.
For the Respondent: Mr. Francis Paul, Advocate.

Case Title: Mamta Das v. Puneet Das
Neutral Citation: 2025: DHC:8306-DB
Case Number: MAT.APP. (F.C.) 160/2022
Bench: Justice Anil Kshetrapal and Justice Harish Vaidyanathan Shankar