The Madras High Court bench here has set aside a divorce order granted by a lower court to a man who claimed that his wife had deserted him.

The husband, a research officer in bi-technology in Madurai, obtained divorce from his wife, a Siddha doctor at the Fast Track Court (FTC) in Salem in 2008. He alleged that his wife had been cruel to him and his family before deserting him. He also accused his wife of “not cooperating with him to undergo medical treatment to conceive a child”. The couple was married in 1997.

Challenging the judgment, the wife filed a petition for the restitution of conjugal rights at the Principal Subordinate Court in Salem.

The court allowed her petition, but the husband filed an appeal in the FTC challenging the judgement allowing the restitution of conjugal rights. The husband’s petition was allowed and the divorce order was upheld. The wife moved the High Court challenging the FTC order that upheld their divorce.

In her petition at the High Court, the wife said her husband was working in Madurai, while she went to Palayamkottai in 2001 to pursue her MD. They met on weekends either in Palayamkottai or at Madurai till 2004, she said. She further claimed that her husband’s family members ill-treated her because she was unable to conceive a child and her husband deserted her in 2004. The FTC’s judgement was liable to be set aside because it wrongly held that the wife deliberately did not live with her husband and was not interested in having a child, her counsel contended.

The husband argued that he married a second time after the divorce order was upheld and hence, the petition at the High Court should be dismissed.

In his judgement, Justice R.S. Ramanathan cited the judgement of the Supreme Court and said, “Desertion for the purpose of seeking divorce, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. Desertion is not the withdrawal from a place but from a state of things.”

“The husband has not proved that his wife deserted him without any reasonable cause. Though, the wife did not live with her husband in Madurai, after 2001 she had a justifiable cause as she was pursuing her higher studies. It is her case that both of them lived during holidays at Palayamkottai and Madurai and the FTC has not verified this statement,” the judge observed in his order.

Justice Ramanathan further noted that the second marriage of the husband cannot be a ground for dismissing the petitioner’s case and set aside the divorce order.

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