Wife who deserts husband not entitled to get past maintenance from him: Kerala High Court

The Kerala High Court recently observed that a woman who deserts her husband is not entitled to get paid past maintenance payments from him in relation to the time she had spent living separately from him. .A Division Bench of Justice Sathish Ninan and Justice P Krishna Kumar, therefore, set aside a family court's directive to a man to pay his wife past maintenance, despite granting him a divorce on the ground that she had deserted him. The Court observed that once it is proved that the wife had abandoned her husband without any justification, she cannot claim such maintenance from her husband."Having found that the respondent (wife) deserted the appellant (husband), the trial court ought not have awarded past maintenance to her," the Court held..Further, the Court clarified that 'desertion' under the Divorce Act, 1869, meant the abandonment of a marriage by one spouse against the other spouse's wishes, "without reasonable cause", even though the 1869 Act did not expressly say so.This was in response to an argument by the wife's counsel that the trial court's finding that she deserted her husband did not necessarily mean that she had deserted her husband without cause. In this regard, reference was made to the definition of "desertion" under the Divorce Act, 1869 - the divorce law applicable to Christian marriages. Under this law, desertion implies "an abandonment against the wish of the person charging it." Unlike similar provisions in the Hindu Marriage Act, 1955, the definition of "desertion" in the 1869 Act does not expressly provide for "desertion" to be "without cause."The Court, however, adopted a purposive approach and clarified that "desertion" under the 1869 Divorce Act implies an abandonment of the marriage "without reasonable cause.""A contrary construction would treat a spouse who lives apart for a just or reasonable cause, as guilty of a matrimonial offence, and it may lead to the severance of the marital tie—an outcome that cannot be reconciled with constitutional principles of reasonableness and fairness. The Act, being a pre-constitutional enactment, its provisions cannot be construed in isolation from the constitutional guarantees under Articles 14 and 21 ... When the finding that the respondent (wife) has deserted the appellant (husband) became final, it also means she deserted him without any reasonable cause or justification," the Court ruled..The couple in this case had married in June 2003 according to Christian customs, after which the wife got pregnant and returned to her parental home.The husband allegedly did not take her back after their child was born in December 2005. Since then, both spouses lived separately.Subsequently, the husband approached the family court for divorce while the wife filed a separate petition seeking recovery of gold ornaments and money given to her at the time of marriage by her family, along with past maintenance for herself and their minor child.The family court granted the husband a divorce on the ground of desertion, while also directing him to return 28 sovereigns of gold ornaments or their market value to his wife, along with the money which was received by him from her family.Additionally, it awarded past maintenance of ₹25,500 to the wife and ₹8000 to the minor child.Aggrieved by the family court's directives for paying past maintenance to his wife and for the return of gold ornaments, the husband moved an appeal before the Court.The Court on January 29 upheld the family court's directive on the return of gold ornaments, finding no merit to the husband's claim that he had purchased them with his money.However, it set aside the family court's directive for the husband to pay his wife past maintenance. Since the family court found that the wife had deserted her husband without any valid reason, the wife was not entitled to claim past maintenance, the High Court held..The husband was represented by advocates MP Ramnath, P Rajesh (Kottakkal), Sandhya S, and Uma R Kamath.Advocate NK Subramanian appeared for the wife and the minor child..[Read Judgment].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.