In the plaint for divorce being filed
under Section 10 of the Indian Divorce Act, it has to be established that the
desertion has been for more than two years on the date of presentation of
application for divorce. It is an admitted position that marriage between the
parties has not completed two years on the date plaint for divorce was filed
and therefore the question of desertion being for a period of more than two
years on the date the application was made, does not arise.
from a reading of Section 10(1)(x) of the Indian Divorce Act, it will be seen
that not only cruelty is to be established, it is further to be shown that
because of such cruelty, a reasonable apprehension has arisen in the mind of
one of the parties that it would be harmful or injurious to live with the other
party. Leonard Dass v. Prema Catherine Dass, 2018 (131) ALR
case of Saranan Banerjee v. State of Jharkhand, 2007 (2) AIR 82
(Jhar), it was held that an order of maintenance would not be set aside merely
on the ground that wife refused to live with the husband despite decree for
conjugal rights where she alleges torture and ill-treatment. It was further
held as under:
“Finally it has been submitted that since
the wife is not ready to live with her husband in spite of conciliation and
efforts taken by the court and also in view of the decree of restitution of
conjugal rights as claimed by the husband, the wife is not entitled to
maintenance at all.
The husband had obtained a decree under
section 9 of the Hindu Marriage Act for restitution of conjugal rights as
against the wife and in spite of conciliation and efforts she was not inclined
to live with her husband on the plea that a case for the offence under Section
498-A, IPC was pending against the husband on the allegation of torture, misbehavior,
demand of dowry and many other allegations and for such reason she was
apprehensive at the hands of her husband. The judgment and decree under Section
9 of the Hindu Marriage Act for restitution of conjugal rights is a decree,
which cannot be executed by force. Therefore the maintenance amount awarded to
the wife and her daughter cannot be sweeped and set aside only on the ground
that she was not inclined to abide by the decree of the restitution of conjugal
rights passed against her. Vimal Kumar
Verma v. Kavita Verma, 2018 (105)
In the case of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633, it was observed by the Hon’ble Apex Court that in a matter where paternity of a child is in issue before the Court, the use of DNA Test is an extremely delicate and sensitive aspect. It should not be directed by the court as a matter of course, or in a routine manner. Whenever such a request is made, the court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of “eminent need”. Whether it is not possible for the Court to reach the truth without use of such test. Any order for DNA test can be given by the Court only if a strong prima facie case is made out for such a course. Satya Pal Yadav v. Smt. Sandhya Yadav, 2017 (123) ALR 860.
The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately pending the presentation of the petition where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence.
The quality of permanence is one of the essential elements which differentiates desertion from willful separation. If a spouse abandons the other spouse in a state of temporary passion, for example anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) the absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Mohan Singh Mawri v. Haripriya, 2017 (121) ALR 533.
In the case of Maya Devi v. Jagdish Prasad, 2007 (67) ALR 129, it was held that not only the physical cruelty which can be a ground for a divorce but the mental cruelty also constituted a good ground for divorce. In the case of Sadhana Srivastava v. Sri Arvind Kumar Srivastava, 2005 (61) ALR 268, it was held that making a false allegation against the husband of having illicit relationship and extra marital affairs by wife in her written statement constitute mental cruelty of such nature that husband cannot be reasonable asked to live with wife. In such case, the husband is entitled to a decree of divorce. Similar views have been expressed by the Hon’ble Delhi High Court in the case of Jai Dayal v. Shakuntala Devi, AIR 2004 Del 31 in which it has been held that leveling of false allegation by one spouse about the other having alleged illicit relations with different persons outside wedlock amounted to mental cruelty. Rajesh Dwivedi v. Additional Principal Judge, Family Court, 2015 (108) ALR 337.
Section 472 CrPC provides that in case of a continuing offence, a fresh period of limitation begins to run at every moment of the time period during which the offence continues. The expression “continuing offence” has not been defined in CrPC because it is one of those expressions which does not have a fixed connotation, and therefore, the formula of universal application cannot be formulated in this respect.
According to Black’s Law Dictionary (5th Edition), ‘continuing’ means ‘enduring; not terminated by a single act or fact; subsisting for a definite period or intended to cover or apply to successive similar obligations or occurrences’. Continuing offence means ‘type of crime which is committed over a span of time’. As to period of statute of limitation in a continuing offence, the last act of the offence controls for commencement of the period. ‘A continuing offence, such that only the last act thereof within the period of the statute of limitations need be alleged in the indictment or information, is one which may consist of separate acts or a course of conduct but which arises from that singleness of thought, purpose or action which may be deemed a single impulse.’ So also a ‘continuous crime’ means ‘one consisting of a continuous series of acts, which endures after the period of consummation, as, the offence of carrying concealed weapons. In the case of instantaneous crimes, the statute of limitation begins to run with the consummation, while in the case of continuous crimes it only begins with the cessation of the criminal conduct or act.
The law on this point can be summarized to the effect that, in the case of a continuing offence, the ingredients of the offence continue i.e. endure even after the period of consummation, whereas in an instantaneous offence, the offence takes place once and for all i.e. when the same actually takes place. In such cases, there is no continuing offence, even though the damage resulting from the injury may itself continue. Udai Shankar Awasthi v. State of Uttar Pradesh and another, (2013) 2 SCC 435.