Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of A.A. Sayed and S.C. Gupte, JJ. allowed an appeal filed against the judgment of the Family Court whereby it had dismissed the appellant-husband’s divorce petition filed under Section 13(1)(ib) of the Hindu Marriage Act, 1955.

The husband’s case was that his wife had deserted him for more than 20 years when she left the home and they have been living separately since. The family court dismissed the divorce petition filed by the husband holding that the separation was at the instance of the husband. Moreover, it was held that there was no animus deserendi or the intention to bring cohabitation permanently to an end on the part of the wife. Aggrieved thereby, the husband filed the present appeal.

The High Court perused the record and noted that the parties were living separately for 20 years. Though there was a dispute as to the reason why the wife left the home, the wife’s conduct thereafter suggested that there was absolutely no intention on her part to resume cohabitation at any time. The Court was of the view that there was animus deserendi on her part at least with reference to subsequent events. As explained by the High Court, “Animus deserendi or intention to bring cohabitation permanently to an end is nothing but the opposite of intention to resume cohabitation. If there is no intention at all to resume cohabitation for a reasonably long period, there could be said to be intention to bring cohabitation on an end. How much long a reasonably long period would be is a matter of inference to be drawn from the facts and circumstances of each case. But surely twenty years is, in any event, a reasonably long period. If there is no attempt on the part of the deserting spouse to resume cohabitation for twenty years after the initial separation, even if one were to grant that the original separation did not have the element of animus deserendi, there could be said to be presence of such animus afterwards.” Observing that there was no hope for any revival of marriage, the Court allowed the appeal and granted a decree of divorce on grounds of separation. [Shailendra Madhukar Bhalerao v. Suruchi Shailendra Bhalerao,2018 SCC OnLine Bom 5331, decided on 26-11-2018]

Case BriefsHigh Courts

Rajasthan High Court: The petitioners preferred a miscellaneous petition under Section 482 of CrPC for quashing of FIR No. 98/2013 registered at P.S. Kotwali, District Chittorgarh for the offence under Sections 406, 420, 376 IPC.

Since the  counsel for the petitioner was able to establish a lawful marriage between  Petitioner 1 and Respondent 2, he strongly urged that the ingredients of Section 493 shall not be attracted as on the bare perusal of Section 493 IPC, an offence under Section 439 relates to deceitfully inducing a belief of lawful marriage. Learned counsel for the petitioner further averred that the place of residence of the in-laws and the couple being different, a case under Sections 498-A and 406 of the IPC could not be made out against the in-laws. The Public Prosecutor opposed the submission and submitted a status report wherein an offence under Section 376 of IPC has not been made out on account of the lawfully valid marriage between  Petitioner 1 and Respondent 2.

After hearing counsel for the parties and perusing the record of the case, the High Court opined that the prosecution case under Section 493 of IPC was not made out as on the basis of the investigation report, it was clearly concluded that Petitioner 1 and Respondent 2 were residing together due to a lawful wedlock. The High Court partly allowing the miscellaneous appeal, held, “The cohabitation caused by a man deceitfully inducing a belief of lawful marriage is very specific ingredient and once the lawful marriage has been established between the parties then such offence cannot be sustained in the eye of law.” [Mukesh v. State of Rajasthan,  2017 SCC OnLine Raj 2665, decided on 3.10.2017]