The Supreme Court has dissolved a marriage on ground of 'desertion' holding that wife failed to establish any reasonable cause for staying away from Matrimonial Home.
The Bench comprising of Justice Ajay Rastogi and Justice Abhay S. Oka held the above in an appeal filed by a husband assailing dismissal of his petition 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 by the District Court and the Gauhati High Court.
It was his case that his wife left the Matrimonial Home with all her personal belongings within 15 days of marriage and deserted him ever since. In his petition seeking a decree of divorce in the District Court, grounds of cruelty and desertion have been raised. 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 Learned Counsel appearing for the appellant submitted that it is an admitted position that the marriage was not consummated. He submitted that refusal by the respondent to consummate marriage caused mental cruelty to the appellant. The respondent however never showed any inclination to return to the matrimonial home, the Counsel further submitted and never had any intention to start cohabiting with the appellant, he alleged.
He mentioned that the respondent visited the matrimonial home for a day for the reason of the death of the appellant’s mother and the same cannot be attributed as the resumption of matrimonial relationship.
He cited Lachman Utamchand Kiriplani Vs. Meena Alias Mota, 1963 Latest Caselaw 195 SC on the concept of desertion and submitted that the law laid down by this Court in the said decision has been consistently followed till date. He added that both the Courts committed an error by holding that the ground of desertion was not made out. In the end, he urged that in view of the irretrievable breakdown of marriage, the Court should exercise its plenary jurisdiction under Article 142 of the Constitution of India to pass a decree of divorce.
Learned Counsel appearing for the respondent on the other hand submitted that the appellant has not established that there was no consummation of marriage. She submitted that the evidence is to the contrary. She urged that even the factum of desertion has not been established by the appellant. She submitted that there was no intention on the part of the respondent to desert the appellant and on the contrary, it was the appellant who made no efforts to resume cohabitation. She referred to Darshan Gupta Vs. Radhika Gupta [July 1, 2013], 2013 Latest Caselaw 423 SC to submit 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.
Supreme Court Observation
The Court making referrence to Lachman Utamchand Kiriplani noted at the outset that the law consistently laid down by it 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 the Court has been incorporated in the Explanation added to sub-section (1) of Section 13 by Act No.68 of 1976.
The Court mentioned that Matrimonial Disputes are tend to be complex as each case is factually different from another. Whether a case of desertion is established or not will depend on the peculiar facts of each case as it is a matter of drawing an inference based on the facts brought on record by way of evidence, it added.
In the present case, the Court held that 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. 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 which is present in the case herein as per the Court.
"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."
Noting that 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 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."
In view of the above, the Court allowed the appeal and additionally directed the appellant-husband to deposit a sum of Rs.15,00,000/- (increased from Rs.10,00,000/- in settlement amount) within a period of 8 weeks from today.
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