The Kerala High Court has clarified that a decree of divorce on the ground of desertion under the Hindu Marriage Act, 1955, does not require the petitioner to plead the exact date of desertion if the pleadings, evidence, and conduct collectively establish a continuous and intentional abandonment of marital obligations. This ruling reinforces the principle that substance prevails over technicality in matrimonial disputes.
Background & Facts
The Dispute
The appellant, M. Prasad, filed for divorce against his wife, Lijimol, under Sections 13(1)(i)(a) and 13(1)(i)(b) of the Hindu Marriage Act, 1955, alleging matrimonial cruelty and desertion. The marriage, solemnized in 1996, produced two sons. The appellant claimed the respondent subjected him and his parents to physical and mental harassment, including an alleged assault on his mother in 2008, which led to a criminal case (C.C. No. 860/2008). He further alleged she sold a gold chain belonging to his mother in 2007 and engaged in illicit relationships. He asserted desertion since 2007.
Procedural History
- 2012: Original divorce petition filed in Family Court, Alappuzha
- 2015: Family Court dismissed petition, finding insufficient proof of cruelty and rejecting desertion claim due to lack of precise commencement date
- 2015: Appeal filed in Kerala High Court
- 2026: Judgment delivered by Justices Sathish Ninan and P. Krishna Kumar
Relief Sought
The appellant sought a decree of divorce on grounds of cruelty and desertion. The respondent sought dismissal of the petition, asserting her innocence in the criminal case and alleging the appellant’s own infidelity.
The Legal Issue
The central question was whether desertion under Section 13(1)(i)(b) of the Hindu Marriage Act, 1955 requires the petitioner to plead the exact date of commencement of desertion, or whether consistent allegations of separation, coupled with conduct and corroborative evidence, suffice to establish the ground.
Arguments Presented
For the Appellant
The appellant’s counsel argued that while the petition did not specify the precise day desertion began, it clearly stated that desertion commenced from 2007, with specific incidents cited - including the sale of the gold chain on 14.01.2007 and cessation of cohabitation thereafter. They relied on Samar Ghosh v. Jaya Ghosh to argue that the essence of desertion lies in the intention to abandon and the fact of separation, not technical pleading precision.
For the Respondent
The respondent contended that the absence of an exact date rendered the desertion claim legally defective. She argued that the appellant’s allegations were vague, retaliatory, and contradicted by her acquittal in the criminal case. She further emphasized that no petition for restitution of conjugal rights was filed, suggesting lack of genuine intent to reconcile, but maintained that this did not equate to her desertion.
The Court's Analysis
The Court acknowledged that while the petition did not state the exact date of desertion, the appellant’s pleadings and affidavit consistently referenced 2007 as the point of separation, with specific events anchoring that timeline. The Court held that technical defects in pleading cannot override substantive proof of abandonment.
"Though the exact date of commencement of desertion was not stated, he narrated specific incidents alleged to have occurred on 14.01.2007. Consistent with such pleadings, he stated in his chief affidavit that from the said date onwards he had been deserted by the respondent."
The Court further noted the respondent’s failure to file a restitution petition despite the prolonged separation, and her own allegations of the appellant’s infidelity, which indicated no desire to preserve the marriage. The Court emphasized that desertion requires both factum of separation and animus deserendi - and both were established here. The trial court’s reliance on pleading technicalities was found to be legally unsustainable.
The Court applied the ratio in Samar Ghosh v. Jaya Ghosh, recognizing that when a marriage becomes a "mere legal fiction" due to prolonged separation and loss of emotional bond, dissolution is warranted.
The Verdict
The appellant succeeded. The Kerala High Court held that desertion under Section 13(1)(i)(b) was established by consistent conduct, specific incidents, and prolonged separation since 2007, even without an exact date of commencement. The marriage was dissolved by decree of divorce.
What This Means For Similar Cases
Pleading Specificity Is Not Absolute
- Practitioners need not plead the precise calendar date of desertion if the petition clearly identifies a time period supported by factual incidents
- Affidavits and oral testimony that align with pleadings can cure minor pleading deficiencies
- Courts must focus on the substance of abandonment, not procedural formalities
Conduct Trumps Counter-Allegations
- Failure to seek restitution of conjugal rights, despite prolonged separation, supports inference of animus deserendi
- Counter-allegations of infidelity or cruelty by the respondent do not negate desertion if the petitioner’s conduct and separation are unchallenged in substance
- Courts must evaluate the totality of conduct, not isolated denials
Samar Ghosh Remains Governing Precedent
- The principle that "marriage as a legal fiction" justifies dissolution remains binding
- This judgment reaffirms that emotional breakdown and irretrievable breakdown are valid grounds under the Act, even without explicit statutory recognition
- Lawyers should cite Samar Ghosh proactively in cases involving long-term separation and no reconciliation efforts
