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Khorshed Muncherji Kapadia Vs. Muncherji Sorabji Kapadia - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberParsi Matrimonial Suit No. 2 of 1937
Judge
Reported inAIR1938Bom86; (1937)39BOMLR1141; 173Ind.Cas.430
AppellantKhorshed Muncherji Kapadia
RespondentMuncherji Sorabji Kapadia
Excerpt:
.....desertion by that party. it is the party who by his or her conduct brings cohabitation to an end that is guilty of desertion. - - order to be satisfied that in this case it was the husband who has deserted the wife for at least three years without reasonable cause and without her knowledge or consent......place, but from a state of things. the husband may live in a place, and make it impossible for his wife to live there, though it is she and not he that actually withdraws; and that state of things maybe desertion of the wife. the law does not deal with the mere matter of place; what it seeks to enforce is the recognition and discharge of the common obligations of the married state.2. there may be desertion of one party by the other under the facts and circumstances of the case, even though both may continue to live under the same roof. on the other hand there may be no desertion if, for instance, the husband has got to live in a far-off land, leaving his wife behind. what the court has to consider, in order to ascertain whether there has been desertion, is to look at the conduct of the.....
Judgment:

B.J. Wadia, J.

1. Plaintiff has filed this suit against her husband for dissolution of her marriage with him on the ground of desertion under Section 32(g) of the Parsi Marriage and Divorce Act of 1936. The word 'desertion' has. not been defined, but reading Section 32(g) along with Section 2: (3) of the Act, it is-necessary for the plaintiff to prove (a) that she has been deserted by the: defendant for at least three years, and (b) that she has been deserted without reasonable cause and without her consent or against her will. It is difficult to define the word desertion so as to cover all possible facts and circumstances; but in its essence it is the abandonment of one spouse by the other with the intention of breaking off matrimonial relations between them, and thereby bringing the cohabitation to an end. Generally it is the husband who deserts his wife in some cases it is the wife who has deserted her husband. Desertion, however, must be a wilful desertion by the one against the wishes of the other. To constitute wilful desertion on the part of the husband, his absence and the cessation of cohabitation must be in spite of the wish of the wife, and she must not be a consenting party to it. There can be desertion of the wife by the husband even though it is the wife who may have left the matrimonial home; and vice versa there may be a desertion of the husband: by the wife if the husband has gone away from his home. The question of desertion cannot be decided merely by enquiring which party left the matrimonial home first. It is the party who by his or her conduct brings the cohabitation to an end that is guilty of desertion. There is, therefore, no substantial difference between a husband who leaves his wife and brings cohabitation to an end, and one whose conduct obliges his wife to leave him. This has been pointed out in Pulford v. Pulford [1923] P. 18. The President of the Tribunal, Sir Henry Duke, stated that (p. 21):-

Desertion is not the withdrawal from a place, but from a state of things. The husband may live in a place, and make it impossible for his wife to live there, though it is she and not he that actually withdraws; and that state of things maybe desertion of the wife. The law does not deal with the mere matter of place; What it seeks to enforce is the recognition and discharge of the common obligations of the married state.

2. There may be desertion of one party by the other under the facts and circumstances of the case, even though both may continue to live under the same roof. On the other hand there may be no desertion if, for instance, the husband has got to live in a far-off land, leaving his wife behind. What the Court has to consider, in order to ascertain whether there has been desertion, is to look at the conduct of the parties towards each other. In this case it is the husband who deserted the wife in or about June, 1928, against her will, and it is alleged that he did so without reasonable cause.

3. The question of desertion, therefore, is a mixed question of law and of fact, and it is for you, gentlemen, to consider the evidence in. order to be satisfied that in this case it was the husband who has deserted the wife for at least three years without reasonable cause and without her knowledge or consent.

4. [The opinion of the delegates was that the defendant was guilty of desertion. The learned Judge accepted the opinion and dissolved the marriage between the parties under Section 35 of the Parsi Marriage and Divorce Act, 1936, and granted divorce to the plaintiff.-Eds.]


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