The Allahabad High Court observed that husband and wife cannot be granted divorce on grounds of desertion if they are living separately merely to pursue their respective jobs.

The Court was dealing with an appeal filed by a husband against a Family Court order whereby the divorce case instituted by him was dismissed.

A division-bench of Justice Saumitra Dayal Singh and Justice Donadi Ramesh observed, "Merely because the parties may have remained separated for reason of their separate jobs with one working at Jhansi and the other at Auraiya, the fact occurrence of desertion may never be sustained on the strength of such vocational/employment compulsion faced by the parties."

The husband was represented by Advocate Vivek Prasad Mathur while the respondent was wife was represented by Advocate N. Singh.

The appeal filed under Section 19 of the Family Court Act, 1984 assailed the order passed by the Family Court whereby the divorce case instituted by the husband was dismissed.

The marriage between the parties was solemnized in 1999 and they had a child in 2000. It was the husband's submission that they are living separately since after mid of 2003 due to his wife getting posted as a Primary Teacher in a nearby village at 2 km distance. He had, at the first instance, instituted proceeding seeking restitution of conjugal rights in 2003 which was decreed in 2004. However, the same was recalled at the instance of wife in 2006 and was later dismissed as withdrawn. Thereafter, in 2007 he instituted the suit for divorce on the grounds of desertion and cruelty alleged. The Family Court didn't approve of the evidence provided in that regard and dismissed the suit accordingly.

The Court agreed with the finding of the Family Court that the school, where the wife was posted was situate in a District that was barely 2 kms away from the ancestral home of the husband.

"That fact is admitted to the appellant. In that context, it is difficult to disbelieve the further case of the respondent that she had obtained posting at District Auriaya with full knowledge and consent of the appellant. Though, the appellant disputes that fact, in the totality of the facts and circumstances of the case proven by the parties and in absence of any contrary material/evidence available on record, we do not find any fault in the finding recorded by the learned Court below that there was no willful or continued desertion by the respondent," the court observed in this regard.

The Court further stressed that it remains an unproven fact that whether the appellant wanted the respondent to apply for posting at Jhansi or not and even as he asserts the same, no evidence was led to prove such fact.

"As to cruelty, no evidence appears to have been led to establish that the institution of the criminal case by the respondent, either in the year 2004 alleging demand of dowry under Section 498A, 323, 109 IPC or in the year 2006 alleging other offence under Section 452, 323, 504, 506, 324 IPC was false or that no such occurrence had taken place. Both cases are disclosed to be pending. As to oral evidence led in these proceedings, in the first place, the element of cruelty alleged was not established by the appellant, at the same time, the respondent was able to lead evidence to indicate that the appellant had tried to remarry during the subsistence of his first marriage with the respondent and also that there was demand of dowry made (from the family of her sister-in-law), who is married to the elder brother of the appellant," the court further observed calling in question the credibility if the evidence produced.

Accordingly, the appeal was dismissed.

Cause Title: X vs Y (2024:AHC:149163-DB)

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Allahabad High CourtDivorceJustice Saumitra Dayal SinghJustice Donadi Ramesh

Sheetal Joon