Desertion must not be for a continuous period two years immediately preceding the institution of petition: SC Dissolves Marriage

Desertion must not be for a continuous period two years immediately preceding the institution of petition: SC Dissolves Marriage

The Supreme Court ruled that the desertion must not be for a continuous period of two years immediately preceding the institution of petition.

Background 

The marriage between the appellant and the respondent was solemnized on 17th June 2009 at Tezpur in Assam. According to the 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. 

Arguments 

Advocate Manish Goswami, appearing for the appellant, contended that it is an admitted position that the marriage was not consummated. He argued that the refusal by the respondent to consummate marriage caused mental cruelty to the appellant. After 30th June 2009, the respondent never showed any inclination to return to the matrimonial home. She never had any intention to start cohabiting with the appellant.

Advocate Nidhi, appearing for the respondent, contended that the appellant has not established that there was no consummation of marriage. She urged that the evidence is to the contrary. Even the factum of desertion has not been established by the appellant, as rightly held by the District Court and the High Court.

She argued 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 contended that merely because husband and wife are staying separately, an inference regarding desertion on the wife’s part cannot be drawn. 

Decision 

The division bench of Justice Ajay Rastogi and Justice Abhay S. Oka said that the law consistently laid down by the 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 the deserting spouse to bring the cohabitation to a permanent end.  

The court noted that 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.

The court stated 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.

The court found that no case was made out to disturb the findings recorded by the Courts on the issue of cruelty and held that 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.

The  court directed the appellant-husband to deposit a sum of Rs.15,00,000/- in the Court within a period of 8 weeks.

Case title: Debananda Tamuli v/s Smti Kakumoni Kataky

Citation: CIVIL APPEAL NO. 1339 OF 2022 

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