Wife leaving after husband brings concubine home does not amount to desertion: Chhattisgarh High Court

The Chhattisgarh High Court recently held that if a husband brings home a concubine during his marriage to another woman, and if the wife leaves the home as a result, it would not amount to desertion [Uttamram v. Kayaso Bai]..A Division Bench of Justices Goutam Bhaduri and Rajani Dubey was hearing an appeal from an order of a family court which denied the husband a decree of divorce on the ground of desertion..- The husband moved the High Court in appeal against an order of the family court refusing to grant him a divorce on the ground of desertion;- He claimed that he married his wife 26 years ago, and for the past 25 years, she had deserted him without cause;- The wife stated that the appellant had kept a concubine and due to the torture meted out to her, she left;- The Court found the claim of the wife to be true and held that leaving for this reason did not amount to cruelty;- Thus, the order of the family court refusing grant of divorce was upheld..The appellant-husband claimed that he married his wife 26 years before filing of the suit, and that they had three daughters. For the past 25 years, she had deserted him without any lawful cause, he said.He also stated that the wife was not his lawfully wedded wife, and thus, the marriage from the inception was a nullity..The respondent-wife, however, informed the Court that she was subjected to physical and mental torture by her husband. In fact, he had kept another woman as his wife and asked the respondent to return to her parental village.The Court was also informed that the appellant was on the verge of retirement and the suit was filed with the aim of depriving her of her lawful claim since she was recorded as the wife in his service records..The Division Bench also found the question of desertion for the last 25 years to be completely falsified, since the marriage was solemnised 26-27 years back, after which three children were born.“When the marriage solemnised between the parties 26-27 years back and three children were born thereafter, how it can be presumed that the wife has deserted the husband for the last about 25 years i.e. immediately after marriage,” the Bench remarked..Further, the Court took note of the fact that during the subsistence of the marriage, the appellant kept another woman as his wife, which in itself was illegal.“...one lady was kept by the appellant during subsistence of marriage with the respondent and she was forced to leave her matrimonial home to stay at her parental house because of the torture meted out to her,” the Court observed while concluding that there was a reasonable cause for the wife to leave even though she did not intend to. Thus, the husband could not claim desertion..Two essentials of desertion were pointed out by the bench, “(i) the factum of separation; and (ii) the intention to bring cohabitation permanently to an end.” It was thus noted that with respect to a deserted spouse, absence of consent and conduct giving reasonable cause were essential to establish desertion..With this, it was held that if the husband keeps another woman, gives her shelter and proceeds to have children with her, and that for this reason, the first wife leaves the matrimonial home, it cannot be presumed as desertion..Therefore, the judgment of the family court was upheld and the appeal was dismissed..Advocate Parag Kotecha appeared for the appellant whereas the respondent was represented by Advocate Sachin Singh Rajput..[Read Judgment]