The Hon’ble Apex Court in Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698 was concerned with the custody of a child who was British citizen by birth whose parents had been settled in England after their marriage. The child was removed by the husband from the house and was brought to India. The wife obtained a judicial order from the UK court whereby the husband was directed to hand over the custody of the child to her. The said order was later confirmed by the court of England and thereafter the wife came to India and filed a writ petition in the High Court of Punjab and Haryana praying for custody and production of the child which came to be dismissed against which the wife appealed to the Apex Court. The Apex Court keeping in view the “welfare of the child”, “comity of courts” and “jurisdiction of the State which has most intimate contact with the issues arising in the case” held thus:
“We may add that the spouses had set up their matrimonial home in England where the wife was working as a clerk and the husband as a bus driver. The boy is a British citizen, having been born in England, and he holds a British passport. It cannot be controverted that, in these circumstances, the English Court had jurisdiction to decide the question of his custody. The modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offspring of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the courts of that State to assume jurisdiction to enforce obligations which were incurred therein by the spouses. (See International Shoe Co. v. State of Washington 90 L Ed 95 : 326 US 310 (1945) , which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues.) It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy.” In Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42, the Hon’ble Supreme Court held that it is the duty of courts in all countries to see that a parent doing wrong by removing children out of the country does not gain any advantage by his or her wrongdoing and was guided by the factors such as the longer time spent by the child in the US in which the child was born and became US citizen and also the fact that the child has not taken roots in India and was still not accustomed and acclimatised to the conditions and environment obtaining in the place of his origin in the United States of America. The Court took note of the fact that the child’s presence in India is the result of an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child in some school in Pune. Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.
Sirohi v. Smt. Meenakshi, AIR
2007 All 211, the husband made an application for divorce and the wife took a
stand in the written statement that she is not inclined to continue marital
relationship with her husband. However the said application was rejected by the
court below on the ground that as per Section 14 of the Act, court cannot
entertain any petition for dissolution of marriage unless at the date of
presentation of the petition one year has elapsed from the date of the marriage.
When the matter reached the High Court, it was held as under:
have gone through the provision contained under the proviso to section 14 of the
Hindu Marriage Act and we find that the High Court can allow to present the present
the petition before lapse of one year from the date of marriage on the ground
that the lapse is one of exceptional hardship to the petitioner or of
exceptional depravity on the part of the respondent. It appears to us that when
immediately after marriage no marital relationship developed amongst themselves
and they are voluntarily inclined to withdraw relationship, their life should
not be allowed to be deserted. When differences have occurred which cannot be
compromised if at this stage they are separated, they can be able to enjoy
their happy marital life elsewhere. Continuance of the litigation will cause
mental and physical harassment to them unnecessarily when both of them are not
inclined to continue with the relationship at all. Both the parties have
withdrawn their allegations and counter allegations against each other.”
catena of cases relating to matrimonial
dispute, the Hon’ble Apex Court has observed that matrimonial disputes have to be
decided by courts in a pragmatic manner keeping in view the ground realties.
For this purpose a host of facts have to be taken into consideration and the
most important being whether the marriage can be saved and the husband and wife
can live together happily and maintain a proper atmosphere at home for the
upbringing of their offspring. A. Agarwal
v. Principal Judge, 2019 (2) AWC
In the case of Maya Devi v. Jagdish Prasad, 2007 (67) ALR 129, it was held that not only the physical cruelty which can be a ground for a divorce but the mental cruelty also constituted a good ground for divorce. In the case of Sadhana Srivastava v. Sri Arvind Kumar Srivastava, 2005 (61) ALR 268, it was held that making a false allegation against the husband of having illicit relationship and extra marital affairs by wife in her written statement constitute mental cruelty of such nature that husband cannot be reasonable asked to live with wife. In such case, the husband is entitled to a decree of divorce. Similar views have been expressed by the Hon’ble Delhi High Court in the case of Jai Dayal v. Shakuntala Devi, AIR 2004 Del 31 in which it has been held that leveling of false allegation by one spouse about the other having alleged illicit relations with different persons outside wedlock amounted to mental cruelty. Rajesh Dwivedi v. Additional Principal Judge, Family Court, 2015 (108) ALR 337.
In Savitri Pandey v. Prem Chandra Pandey, (2002) 6 SCC 73, it was held as under:
“Desertion for the purpose of seeking divorce under the Hindu Marriage Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalizes the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities, the Court in Bipinchandra Jaisingbhai Shah v. Prabhavati, AIR 1957 SC 176, held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion.”
In Lachman Utamchand Kriplani v. Meena, AIR 1964 SC 40, it has been held that desertion in it’s essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved, the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. Malathi Ravi, M.D. v. B.V. Ravi, M.D., (2014) 7 SCC 640.