Whether divorce can be granted on ground of desertion in absence of pleading and proof?
of the evidence, it is seen that the actual desertion as
stated by the husband is not pleaded with the statutory
period mentioned under Section13(1)(ib) of the Act. The
animus deserendi or intention to desert and the factum
of separation which are the two essential elements to
constitute desertion are not properly found in the alleged
desertion. Even though there was factum of separation,
their rejoining after filing the petition shows that they
have no intention to bring the cohabitation permanently
to an end. This shows that the petitioner husband failed
to prove the ground of desertion and the judgment of the
lower court on the ground of desertion is to be set aside.
No decree of divorce could be granted on the ground of
desertion in the absence of pleading and proof with
regard to mental element and physical element.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
&
THE HONOURABLE MR. JUSTICE P.D.RAJAN
WEDNESDAY, THE 11TH DAY OF FEBRUARY 2015/22ND MAGHA, 1936
Mat.Appeal.No. 244 of 2007 ( )
C.V.USHAKUMARI,
Vs
P.SUKUMARAN,
Citation; AIR 2016(NOC)50 Kerala
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