Tag Archives: Restitution of Conjugal Rights

Order for Maintenance – Cannot be Set Aside if the Wife refuses to stay with husband

In the 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) ACC 394.

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Offence of Desertion

Rayden on Divorce has summarized thus:
“Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party.”
In Halsbury’s Laws of England (3rd Edition), Vol. 12, it has been held as under:
“In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. Desertion is not the withdrawal from a place but from the state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, ‘the home’. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.
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 preceding 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.”
Thus 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) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Anand Singh v. Smt. Kunti, 2017 (121) ALR 146.

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