Burden Of Proof On Spouse Seeking Divorce On Ground Of Desertion Is One Of Preponderance Of Probability: Punjab & Haryana High Court


Chambers of Ishaan Garg

Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054

+91 8851742417, +91 8800386163

The Punjab & Haryana High Court has made it clear that burden of proof on spouse seeking divorce on ground of desertion is of "preponderance of probability."

A division bench of Justice Sudhir Singh and Justice Sumeet Goel said, "the burden of proof lies on the spouse seeking divorce but the degree of proof required is of preponderance and not one of being beyond reasonable doubt."

It explained further that, "the essential conditions qua the deserting spouse are factum of actual separation & animus deserendi i.e. intention to permanently end cohabitation. The essential conditions qua the deserted spouse are absence of consent & absence of behaviour which creates reasonable cause for other spouse to stay away.

Second set of condition is that such desertion ought to be for a continuous period of two years preceding the presentation of divorce petition.

When both the abovesaid set of conditions are fulfilled, only then a spouse can be granted a decree of divorce on the ground of desertion."

The Court further added that when a Court considers the plea of desertion, the same is required to be considered in the realm of factual matrix of each individual case since every case has its own peculiar facts and circumstances. This aspect assumes more significance in matrimonial litigation as "the relationship between husband and wife is a complex and an intricate one."

These observations came in response to the plea filed by a wife filed against the judgment and decree dated passed by Additional District Judge in 2008 whereby petition filed by respondent-husband under Section 13 of the Hindu Marriage Act, 1955 (HMA) seeking dissolution of marriage was allowed on the ground of desertion by wife and marriage between the parties was dissolved.

The husband filed the divorce petition stating that marriage between the parties was solemnized on in 2003, as per Hindu rites and ceremonies and parties lived together as husband and wife and cohabited with each other. It was further stated by the husband that the wife left the matrimonial home in 2004.

Later on, the husband came to know that wife had performed the second marriage with one 22.06.2005 sworn by the wife acknowledging the factum of her marriage with Sameer; her not willing to live with her husband, having received her articles as also not wanting any legal action against him as also his family members.

The counsel representing wife argued that the trial Court has erred in granting the decree of divorce on the ground of desertion as there was neither any intention on part of the wife to desert nor the requirement of statutory period of two years desertion, as stipulated.

It was also argued that the affidavit submitted stating that the wife had remarried was executed under threat.

After hearing both the sides, the Court placed reliance upon Debananda Tamuli vs. Smt. Kakumoni Kataky, [2022 (5) SCC 459], wherein it was held by the Supreme Court that, "The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end."

The Court further referred to Smt. Roopa Soni vs. Kamalnarayan Soni, in [Civil Appeal No.5700 of 2023]. wherein it was held by the Supreme Court, "On the question of burden on a petition for divorce, burden of proof lies on the petitioner. However, the degree of probability is not one beyond reasonable doubt, but of preponderance.”

While noting that there is no complaint filed before any Court by the wife alleging threat or forceful execution of affidavit that she has been remarried, the Court said, " when evaluated in totality, clearly shows and proves that the wife had executed the said affidavit without any coercion/threat as alleged by her."

In her affidavit, she had explicitly acknowledged the factum of her marriage with another person and her not willing to live with the respondent-husband, which proves the factum of separation on her part with an intent to permanently severe marital ties, it observed.

When evaluated in totality, clearly shows and proves that the wife had executed the said affidavit without any coercion or threat as alleged by her, added the bench.

Furthermore, stating that "the arduous reconciliation attempts made by this Court have proved futile," the Court said, "However, when by judicial intervention, the marital status of the parties comes to an end by way of passing a decree, the Court ought to grant permanent alimony or maintenance."

Speaking for the Court Justice Sumeet Goel observed that in the instant case, the trial Court while granting the decree of divorce in favour of the husband has not granted any permanent alimony. "We are also unable to award any permanent alimony to the appellant-wife in view of provisions of Section 25(3) of the Act as it was the appellant-wife who has deserted the husband and has performed the second marriage," added the Court.

In the light of the above, the appeal was dismissed.

Case Title: X v. Y (2024 P&H HC)