Sec.13[1][ib] of HM Act - Desertion -Whether wife deserted the husband without justifiable cause for more than 2 years ?
from 30th June 2009, the respondent left the matrimonial home with all her personal belongings. According to the appellant’s case, from 30th June 2009, the respondent deserted - there is no dispute that the marriage between the parties was solemnized on 17th June 2009 and that they stayed together only till 30th June 2009. The petition for divorce was filed on 9th September 2011. As per clause (ib) of sub-section (1) of Section 13 of HM Act, the desertion must be for a continuous period of not less than two years immediately preceding the institution of the petition. In her affidavit in lieu of examination-in-chief filed on 24th June 2015, the respondent stated that after she became aware of the serious illness of the appellant’s mother, she came to Tezpur on 19th December 2009. She stayed with her sister-in-law. According to the respondent, on 20th December 2009, the appellant told her to leave Tezpur. Therefore, she left Tezpur. After she was informed about the death of the appellant’s mother, she came back to Tezpur and visited the appellant’s house on 21st December 2019, and left on the next day. In the affidavit in lieu of examination-in-chief, it is not even the case made out by the respondent that she came to Tezpur intending to resume the matrimonial relationship.The perusal of the respondent’s evidence does not disclose any effort made by her to resume the matrimonial relationship. She has not filed a petition for restitution of conjugal rights. As can be seen from the evidence on record, the appellant is carrying on business at Tezpur. The respondent is working as a Lecturer in University Law College at Gauhati. There is no dispute that from 1st July 2009 till date, they are staying separately. Merely because on account of the death of the appellant’s mother, the respondent visited her matrimonial home in December 2009 and stayed there only for one day, it cannot be said that there was a resumption of cohabitation. She has not stated that she came to her matrimonial home on 21st December 2009 with the intention to resume cohabitation. The intention on the part of the respondent to resume cohabitation is not established. Thus, in the facts of the case, the factum of separation has been proved.him.
Thus, in our considered view, the ground of desertion under clause (ib) of sub-section (1) of Section 13 of HM Act has been made out as the desertion for a continuous period of more than two years before the institution of the petition was established in the facts of the case
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1339 OF 2022
[@ SLP(C) No.22667 of 2019]
DEBANANDA TAMULI …… APPELLANT
v.
SMTI KAKUMONI KATAKY …… RESPONDENT
J U D G M E N T
ABHAY S. OKA, J.
Leave granted.
1. This appeal arises from a matrimonial dispute between the
appellant-husband and the respondent-wife. The petition filed by
the appellant-husband on the grounds of cruelty and desertion set
out in clauses (ia) and (ib) of sub-section (1) of Section 13 of the
Hindu Marriage Act, 1955 ( for short “HM Act”) was dismissed by
the District Court. By the impugned order, the appeal preferred by
the appellant against the decree of the District Court has been
dismissed by the Gauhati High Court.
2. The marriage between the appellant and the respondent was
solemnized on 17th June 2009 at Tezpur in Assam. According to the
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appellant’s case, from 30th June 2009, the respondent left the
matrimonial home with all her personal belongings. According to
the appellant’s case, from 30th June 2009, the respondent deserted
him.
3. On 9th September 2011, the appellant filed the petition for
seeking a decree of divorce in the District Court at Tezpur on the
grounds of cruelty and desertion. The ground of cruelty was based
on an allegation that the respondent consistently refused to
consummate the marriage, thereby causing mental agony to the
appellant. The appellant did not succeed before both the Courts.
As can be seen from the Orders passed by this Court from time to
time, an effort was made to bring about an amicable settlement in
the matrimonial dispute. The case was referred to mediation which
eventually failed. After that, we interacted with the parties on video
conference. However, an amicable settlement could not be arrived
at.
4. Shri Manish Goswami, the learned counsel appearing for the
appellant submitted that it is an admitted position that the marriage
was not consummated. His submission is that the refusal by the
respondent to consummate marriage caused mental cruelty to the
appellant. He submitted that after 30th June 2009, the respondent
never showed any inclination to return to the matrimonial home.
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She never had any intention to start cohabiting with the appellant.
He submitted that though on 21st December 2009, the respondent
visited the matrimonial home for a day, it was for the reason of the
death of the appellant’s mother. Therefore, it cannot amount to the
resumption of matrimonial relationship. He placed reliance on the
decision of this Court in the case of Lachman Utamchand
Kirpalani v. Meena @ Mota1
on the concept of desertion. He submitted that the law laid down by this Court in the said decision
has been consistently followed till date. He submitted that both the
Courts committed an error by holding that the ground of desertion
was not made out. The learned counsel lastly urged that in view of
the irretrievable breakdown of marriage, this Court should exercise
its plenary jurisdiction under Article 142 of the Constitution of India
to pass a decree of divorce.
5. Ms. Nidhi, the learned counsel appearing for the respondent
submitted that the appellant has not established that there was no
consummation of marriage. She submitted that the evidence is to
the contrary. She invited our attention to the explanation to subsection (1) of Section 13, which defines desertion. She urged that
even the factum of desertion has not been established by the
appellant, as rightly held by the District Court and the High Court.
1 (1964) 4 SCR 331
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She invited our attention to the deposition of the respondent
recorded by the District Court. She submitted that there was no
intention on the part of the respondent to desert the appellant. On
the contrary, the appellant has made no efforts to resume
cohabitation. She relied upon a decision of this Court in the case of
Darshan Gupta v. Radhika Gupta2
. She submitted that merely
because husband and wife are staying separately, an inference
regarding desertion on the wife’s part cannot be drawn. Her
submission is that as a case for grant of divorce on any of the
grounds specified in sub-section (1) of Section 13 of HM Act is not
made out, this Court should not exercise its jurisdiction under
Article 142 of the Constitution of India for dissolving the marriage.
She urged that issue whether such a power can be exercised under
Article 142 to dissolve a marriage on account of a long separation
has been referred to the consideration of the Constitution Bench.
6. The learned counsel for the appellant urged that if this Court
is not satisfied that grounds of divorce as pleaded by the appellant
are made out, this is a fit case to put an end to the prolonged agony
of the parties by dissolving the marriage by exercising the plenary
powers of this Court under Article 142 of the Constitution.
2 (2013) 9 SCC 1
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7. We have given careful consideration to her submissions.
Firstly, we deal with the issue of desertion. The learned counsel
appearing for the appellant relied upon the decision of this Court in
the case of Lachman Utamchand Kirpalani (supra) which has
been consistently followed in several decisions of this Court. The
law consistently laid down by this Court is that desertion means the
intentional abandonment of one spouse by the other without the
consent of the other and without a reasonable cause. The deserted
spouse must prove that there is a factum of separation and there is
an intention on the part of deserting spouse to bring the
cohabitation to a permanent end. In other words, there should be
animus deserendi on the part of the deserting spouse. There must
be an absence of consent on the part of the deserted spouse and
the conduct of the deserted spouse should not give a reasonable
cause to the deserting spouse to leave the matrimonial home. The
view taken by this Court has been incorporated in the Explanation
added to sub-section (1) of Section 13 by Act No.68 of 1976. The
said Explanation reads thus:
“13. Divorce.— (1) …………
3 [Explanation.—In this sub-section, the
expression “desertion” means the desertion
of the petitioner by the other party to the
_____________
3 Substituted by Act 68 of 1976
(w e f 27-05-1976)
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marriage without reasonable cause and
without the consent or against the wish of
such party, and includes the wilful neglect of
the petitioner by the other party to the
marriage, and its grammatical variations and
cognate expressions shall be construed
accordingly.]”
8. The reasons for a dispute between husband and wife are
always very complex. Every matrimonial dispute is different from
another. Whether a case of desertion is established or not will
depend on the peculiar facts of each case. It is a matter of drawing
an inference based on the facts brought on record by way of
evidence.
9. Now, coming to the facts of the case, there is no dispute that
the marriage between the parties was solemnized on 17th June
2009 and that they stayed together only till 30th June 2009. The
petition for divorce was filed on 9th September 2011. As per clause
(ib) of sub-section (1) of Section 13 of HM Act, the desertion must
be for a continuous period of not less than two years immediately
preceding the institution of the petition. In her affidavit in lieu of
examination-in-chief filed on 24th June 2015, the respondent stated
that after she became aware of the serious illness of the appellant’s
mother, she came to Tezpur on 19th December 2009. She stayed
with her sister-in-law. According to the respondent, on 20th
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December 2009, the appellant told her to leave Tezpur. Therefore,
she left Tezpur. After she was informed about the death of the
appellant’s mother, she came back to Tezpur and visited the
appellant’s house on 21st December 2019, and left on the next day.
In the affidavit in lieu of examination-in-chief, it is not even the case
made out by the respondent that she came to Tezpur intending to
resume the matrimonial relationship.
10. The perusal of the respondent’s evidence does not disclose
any effort made by her to resume the matrimonial relationship. She
has not filed a petition for restitution of conjugal rights. As can be
seen from the evidence on record, the appellant is carrying on
business at Tezpur. The respondent is working as a Lecturer in
University Law College at Gauhati. There is no dispute that from 1st
July 2009 till date, they are staying separately.
11. Merely because on account of the death of the appellant’s
mother, the respondent visited her matrimonial home in December
2009 and stayed there only for one day, it cannot be said that there
was a resumption of cohabitation. She has not stated that she
came to her matrimonial home on 21st December 2009 with the
intention to resume cohabitation. The intention on the part of the
respondent to resume cohabitation is not established. Thus, in the
facts of the case, the factum of separation has been proved. From
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the evidence on record, an inference can be drawn that there was
animus deserendi on the part of the respondent. She has not
pleaded and established any reasonable cause for remaining away
from her matrimonial home.
12. Thus, in our considered view, the ground of desertion under
clause (ib) of sub-section (1) of Section 13 of HM Act has been
made out as the desertion for a continuous period of more than two
years before the institution of the petition was established in the
facts of the case. But, after having carefully perused the evidence
on record, we find that no case is made out to disturb the findings
recorded by the Courts on the issue of cruelty.
13. Earlier, when this Court made an effort for bringing about an
amicable settlement, the appellant had offered to pay a lump sum
amount of Rs.10,00,000/- (Rupees ten lakhs) to the respondent. In
the facts of the case, we propose to direct the appellant to pay a
sum of Rs.15,00,000/- (Rupees fifteen lakhs) to the respondent.
14. Hence, the impugned judgments are set aside. The Civil
Appeal is allowed in part. The marriage solemnized between the
parties on 17th June 2009 shall stand dissolved by a decree of
divorce under clause (ib) of sub-section (1) of Section 13 of the
Hindu Marriage Act, 1955.
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15. We direct the appellant-husband to deposit a sum of
Rs.15,00,000/- (Rupees fifteen lakh only) in this Court within a
period of 8 weeks from today.
16. It will be open to the respondent to withdraw the said amount
of Rs.15,00,000/- (Rupees fifteen lakh). It will also be open to her
to withdraw a sum of Rs.50,000/- (Rupees fifty thousand) already
deposited by the appellant.
17. In the event, the amounts deposited by the appellant in this
Court are not withdrawn by the respondent within a period of two
months from the date on which the sum of Rs.15,00,000/- (Rupees
fifteen lakh) is deposited, the Registry shall place the appeal before
this Court for issuing necessary directions.
18. All the pending applications, if any, also stand disposed of.
There shall be no orders as to costs.
…………..…………………J
(AJAY RASTOGI)
…………..…………………J
(ABHAY S. OKA)
New Delhi;
February 15, 2022.
