Chhattisgarh High Court recently held that if a man brings a concubine during his marriage to another woman to home and the wife leaves the home consequently, it would not amount to desertion.
A division bench comprising Justice Goutam Bhaduri and Justice Rajani Dubey was hearing an appeal challenging Family Court’s order rejecting husband’s plea seeking divorce decree on the ground of desertion.
The husband had submitted that he had married his wife 26 years before filing the suit and had three daughters. He also stated that she had deserted him for the last 25 years.
The appellant had also submitted that the wife was not even his lawfully wedded wife, therefore the marriage was a nullity from the inception.
However, the wife informed the court that she was subjected to physical and mental torture by her husband. She also submitted that appellant had brought another woman to their house and was asking her to return to her parental home.
The High Court was also informed that the appellant was on the verge of retirement and the suit was filed with the aim of depriving her of her lawful claim since she was recorded as the wife in his service records.
“When the marriage solemnised between the parties 26-27 years back and three children were born thereafter, how it can be presumed that the wife has deserted the husband for the last about 25 years i.e. immediately after marriage,” the bench said.
The Court also took note of the fact that appellant kept a woman as his wife during the subsistence of marriage, which is illegal.
“One lady was kept by the appellant during subsistence of marriage with the respondent and she was forced to leave her matrimonial home to stay at her parental house because of the torture meted out to her. There was a reasonable cause for the wife to leave even though she did not intend to. Thus, the husband could not claim desertion,” the bench noted.
The bench highlighted two essentials of desertion
(i) the factum of separation; and
(ii) the intention to bring cohabitation permanently to an end.
With respect to a deserted spouse, absence of consent and conduct giving reasonable cause were essential to establish desertion, the bench observed.
The High Court held that if the husband keeps another woman, gives her shelter and proceeds to have children with her, and that for this reason, the first wife leaves the matrimonial home, it cannot be presumed as desertion.
Therefore, the bench upheld the Family Court’s decision and dismissed the appeal.
