Deserted spouse must prove that there is factum of separation and intention on part of deserting spouse to bring cohabitation to permanent end: SC

Read Judgment: Debananda Tamuli V. Smti Kakumoni Kataky 

Pankaj Bajpai

New Delhi, February 16, 2022: While noting that there was animus deserendi on the part of the wife and no reasonable cause was established for remaining away from her matrimonial home, the Supreme Court has opined that 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. 

A Division Bench of Justice Ajay Rastogi and Justice Abhay S. Oka therefore said that the ground of desertion u/s 13(1)(ib) of the Hindu Marriage Act, 1955 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. 

The observation came pursuant to an appeal arising from a matrimonial dispute between Debananda Tamuli (Appellant-husband) and Kakumoni Kataky (Respondent-wife), wherein petition filed by husband on the grounds of cruelty and desertion set out in clauses (ia) and (ib) of Section 13(1) of HM Act was dismissed by the District Court, which was confirmed by the Gauhati High Court.

Going by the background of the case, the marriage between appellant and respondent was solemnized in 2009, but, according to the appellant’s case, the respondent left the matrimonial home with all her personal belongings. Accordingly, the appellant filed the petition seeking a decree of divorce in the District Court on the grounds of cruelty and desertion. From time to time, an effort was made to bring about an amicable settlement in the matrimonial dispute, and the case was referred to mediation which eventually failed. 

After considering the submissions, the Top Court found that 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. 

There should be animus deserendi on the part of the deserting spouse and 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, added the Court.

Speaking for the Bench, Justice Oka clarified that whether a case of desertion is established or not will depend on the peculiar facts of each case, and it is a matter of drawing an inference based on the facts brought on record by way of evidence.

“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”, added the Bench.

Justice Oka further noted that the factum of separation has been proved, as the intention on the part of the respondent to resume cohabitation is not established.

Therefore, while partly allowing the civil appeal, the Top Court concluded that the marriage solemnized between the parties shall stand dissolved by a decree of divorce under clause (ib) of Section 13(1) of the Hindu Marriage Act, and directed the appellant-husband to deposit a sum of Rs.15,00,000/- in this Court within a period of 8 weeks from today, to be paid to the respondent-wife.