Case at a Glance
A husband sought divorce under Section 13 of the Hindu Marriage Act, 1955 on grounds of desertion and mental cruelty; the wife had lived at her parental home since December 2005. The trial court and the High Court both dismissed his case, the High Court holding that physical separation alone is not desertion and that intention to desert (animus deserendi) was not proved. The Supreme Court held that the wife’s refusal, without reasonable cause, to return and the long separation established desertion under Section 13(1)(ib), dissolved the marriage, left the cruelty findings undisturbed, and directed ₹7,00,000 as permanent alimony.
The parties married on 23 June 2003; no children were born of the marriage. The husband alleged that the wife rarely joined him, that the marriage was never consummated and that she insulted him as “illiterate” and “rustic”. On 30 November 2005 she went to her parental home, and when he went to bring her back on 15 December 2005, she declined to resume cohabitation. They have lived apart since then. On 20 June 2007, he filed for divorce under Section 13 of the Hindu Marriage Act, 1955 alleging desertion and mental cruelty.
The trial court found the cruelty allegations not satisfactorily proved and, while accepting that the wife had lived separately since 15 December 2005, held that this alone did not entitle the husband to divorce. The High Court dismissed his appeal under Section 28, finding the cruelty evidence shaky and holding that physical separation alone is not desertion and that animus deserendi was not proved. Mediation at the Supreme Court Mediation Centre failed, with a failure report dated 28 April 2014.
The Key Question Before the Court
Was the High Court right that the essential ingredients of desertion under Section 13(1)(ib) of the Hindu Marriage Act were not established, when the wife had refused to return and the parties had lived apart since December 2005?
How the Supreme Court Inferred Intention to Desert
Writing for the Bench, Justice Prashant Kumar Mishra noted the undisputed separation since 15 December 2005 and the trial court’s finding, based on the unchallenged testimony of Ram Prakash (AW-4), that the wife had deserted the husband. The Court referred to Savitri Pandey v. Prem Chandra Pandey, (2002) 01 SC CK 0090, (2002) 2 SCC 73, which describes desertion as a continuous course of conduct and a matter of inference from facts, to Lachman Utamchand Kirpalani v. Meena alias Mota, (1963) 08 SC CK 0014, (1964) 4 SCR 331, relied on by the wife, and to Naveen Kohli v. Neelu Kohli, (2006) 03 SC CK 0017, (2006) 4 SCC 558, on presuming breakdown after long separation.
The Court held that although the wife said she was ready to perform her marital obligations, a mere assertion is insufficient when conduct shows otherwise. The parties had not cohabited since December 2005, and she refused to go with the husband and AW-4 without reasonable cause, so the High Court was wrong to infer that she had no intention to desert. With no children and reconciliation having failed, continuing the marriage would not serve justice. The Court referred to Shilpa Sailesh v. Varun Sreenivasan, (2023) 05 SC CK 0001, (2023) 14 SCC 231, on prolonged separation, while making clear that the appeal was not decided under Article 142. The husband had offered ₹5,00,000 as permanent alimony; the Court directed ₹7,00,000.
What the Court Actually Held
- Desertion under Section 13(1)(ib) of the Hindu Marriage Act was proved: the wife abandoned the matrimonial relationship by refusing, without reasonable cause, to return.
- A spouse’s bare assertion of readiness to perform marital obligations is insufficient where conduct shows otherwise.
- The High Court’s interference with the trial court’s desertion finding was set aside, but the cruelty findings of both courts were not disturbed; the marriage of 23 June 2003 was dissolved.
- The husband must deposit ₹7,00,000 as permanent alimony with the trial court within three months, failing which the wife may seek execution with 9% interest per annum; no costs.
Why This Judgment Matters
- It shows that intention to desert can be inferred from conduct and long refusal to cohabit, not only from express statements.
- It brings closure to a marriage in which the parties had lived apart for over two decades.
- It pairs dissolution with a permanent alimony direction higher than the husband’s offer.
What Should Advocates Take Away From the Judgment?
For Spouses
- Long separation alone is not desertion, but refusal to return without reasonable cause can prove intention to desert.
- Saying you are willing to resume married life may not help if your conduct shows otherwise.
- Courts may fix permanent alimony while granting divorce.
For Counsel
- Lead clear evidence of attempts at reconciliation and the other spouse’s refusal, such as AW-4’s testimony here.
- Rely on Savitri Pandey for desertion as an inference from facts.
- Note that the Court decided under Section 13(1)(ib), not Article 142.
Key Takeaways
- Animus deserendi can be inferred from conduct.
- Refusal to return without reasonable cause since 2005 proved desertion.
- Cruelty was not proved, but desertion alone was enough for divorce.
- ₹7 lakh permanent alimony to be deposited within three months.
Frequently Asked Questions
What is desertion under the Hindu Marriage Act?
Section 13(1)(ib) allows divorce where a spouse has deserted the other for a continuous period of not less than two years. Citing Savitri Pandey, the Court treated desertion as a continuous course of conduct to be inferred from facts.
Is living separately enough to prove desertion?
Not by itself. Here the Court found desertion because the wife refused, without reasonable cause, to return with the husband, and her stated readiness to resume marital life was contradicted by her conduct.
How much alimony was ordered?
The Court directed the husband to deposit ₹7,00,000 as permanent alimony with the trial court within three months, with 9% annual interest if the wife has to seek execution.
Conclusion
Bijendra v. Rekha, (2026) 09 SC CK 0097 holds that courts must look at what a spouse does, not merely what she says, in deciding whether there was an intention to end cohabitation, and balances the divorce with financial provision for the wife.
Practical takeaway: In desertion cases, build the record on concrete attempts to resume cohabitation and the response to them; that evidence can decide whether long separation amounts to desertion.
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