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Divorce Rights in Domestic Abuse Cases

Amar's petition for divorce on the grounds of desertion is unlikely to succeed, as he himself threw Priya and their child out of the house, indicating that Priya did not intend to desert him. Priya can file for divorce against Amar on the grounds of cruelty, as his actions of beating and abandoning them constitute both physical and mental cruelty. Therefore, Priya has a strong case for divorce based on the established grounds of cruelty under the Hindu Marriage Act.

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55 views2 pages

Divorce Rights in Domestic Abuse Cases

Amar's petition for divorce on the grounds of desertion is unlikely to succeed, as he himself threw Priya and their child out of the house, indicating that Priya did not intend to desert him. Priya can file for divorce against Amar on the grounds of cruelty, as his actions of beating and abandoning them constitute both physical and mental cruelty. Therefore, Priya has a strong case for divorce based on the established grounds of cruelty under the Hindu Marriage Act.

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Harshita
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FAMILY LAW QUESTION

Amar, the husband beats Priya and their child, Priyanka, and then turns them
out of the house. Priya then goes to her parent's house with her daughter.
Amar does not attempt to bring them back. After two years, Amar files a
petition to divorce against Priya on the grounds of desertion.
Q. Will Amar succeed?
Q. As an advocate friend to Priya, suggest to her if she can file a petition of
divorce against Amar on any grounds.

A. Marriage, as per the Hindu Marriage Act, of 1955, is a legal and sacred
union between a man and a woman. Here, Amar and Priya are legally
married and have a child named Priyanka. As the facts provide, Amar has
filed a petition to divorce his wife Priya on the grounds of desertion.
As per the Hindu Marriage Act, 1955, Section 13, divorce may be filed by either
husband or wife under the grounds of:
1. Bigamy
2. Cruelty
3. Desertion
4. Conversion to another religion
5. Unsoundness of mind
6. Renounced the world
7. Legally dead
Now in the given case, Amar has filed the divorce under section 13 (1) (i-b)
desertion. It is desertion by the petitioner for a term not less than 2 years
immediately preceeding the presentation of the petition. The ingredients for
desertion are:\
1. Fact of separation
2. Animus desertendi
3. Without reasonable cause
4. Without the consent of the other party
5. And for a continuous period of 2 years
In the landmark judgment, Binpin Chandra vs Prabhavati 1957, SC, the court
stated that abandonment of one spouse of the other in a temporary passion,
disgust, or anger without the intention to seize cohabitation would not amount
to desertion.
So as per the ingredients, Priya does not fulfill the fact of separation as she
herself did not leave the house, instead Amar himself threw out Priya and their
child. Subsequently, it can be said that there was a consent of the husband in
Priya leaving the matrimonial house. Priya also did not have any animus
desertendi ie. Intention to desert Amar. There was reasonable cause for Priya's
action of going to her parent's house as she was facing cruelty from her
husband. And there was a period of 2 years that satisfied the last ingredient.
But as not all the ingredients satisfy, it can be concluded that Priya did not
desert Amar, nor did she have the intention to.
Therefore, Amar will not succeed in his petition to divorce on the grounds of
desertion.

B. Cruelty is also a ground for filing a petition for divorce. Priya may file a
petition of divorce on the grounds of cruelty against her husband, Amar.
Cruelty under section 13 (1) (i-a), can be both physical and mental. In the
landmark case, Shobha Rani v. Madhukar Reddi (1988) it was established
that cruelty can be both physical and mental and does not need to be
intentional.
The act of Amar beating his wife n child and then throwing them out of the
house amounts to both physical and mental cruelty. And thus Priya will succeed
in the petition. The reason for Priya moving to her parents house after she was
thrown out from her matrimonial house was this act of cruelty, and so she
would succeed in a counter claim for divorce.

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