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Judgment
Avneesh Jhingan, J
This appeal is filed against the judgment and decree dated 15.07.2021 dismissing the petition filed under Section 13 of the Hindu Marriage Act, 1955 (for brevity ‘the Act’).
The brief facts are that the marriage of the parties was solemnized as per Hindu rites on 29.06.2007. The relationship faced troubled waters and resultantly, the wife left the matrimonial house in the year 2015. In spite, of the efforts having been made by the relatives, the in-laws lastly on 05.09.2019 refused to permit the appellant-wife to join the company of the husband. Thereafter, the petition under Section 13 of the Act seeking divorce on the ground of cruelty and desertion was filed.
The respondent-husband filed reply to the petition and admitted the fact that there was desertion since 01.06.2015 and there was no reasonable cause for living separately. It was pleaded that with the intervention of the elders of the society, the parties compromised the matter and decided to part ways. After framing issues, the respondent was proceeded ex-parte. The appellant failed to prove cruelty. The Family Court noted that the factum of desertion was admitted by the respondent-husband. Yet, the petition was dismissed holding that in such circumstances, a petition under Section 13B of the Act ought to have been filed.
Learned counsel for the appellant argues that the parties are admittedly living separately since 2015 without reasonable cause. Desertion was proved by the testimony of the appellant and AW-2 and the Family Court erred in dismissing the petition.
Learned counsel for the respondent defends the impugned judgment. Submission is that there was failure on the part of the appellant to prove desertion and cruelty.
Heard counsel for the parties and perused the record.
The fact that the parties started living separately in 2015 that to without any cause is undisputed.
The Supreme Court in the case of BipinChandra JaiSinghBai Shah Vs. Prabhavati reported in AIR 1957 SC 176 has held the following prerequisites for dissolution of marriage on ground of desertion:-
“(1) the factum of separation;
(2) animus deserendi;
(3) absence of his or her consent; and
(4) absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home.”
The Supreme Court in the case of Debananda Tamuli Vs. Kakumoni Kataky reported in (2022) 5 SCC 459 has held as under:-
“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 appellant failed to prove cruelty but for dissolution of marriage, one ground mentioned in Section 13 of the Act is sufficient. In the case in hand, the desertion was not only proved but also admitted by the respondent. The Family Court erred in holding that the only remedy available was to file a petition under Section 13B of the Act. The divorce on basis of mutual consent can only be granted if the parties have been living separately for a period of one year or more, are not able to live together and mutually agreed to dissolve the marriage. There was no consensus in the present case between the parties to dissolve the marriage and there was no question of filing a petition under Section 13B of the Act.
Desertion is one of the ground under Section 13 for dissolution of marriage and the Family Court erred in holding that it had no jurisdiction to dissolve the marriage under Section 13 of the Act on the basis of admitted desertion. The reliance of Family Court on the decision of the Supreme Court in case of Sanjeeta Das Vs. Tapan Kumar Mohanty reported as 2010 4 RCR (Civil) 573 was misplaced. Apex Court held that under Section 13 of the Act, the marriage cannot be dissolved merely on the consent of the parties, de hors the grounds stipulated under Section 13 of the Act.
It cannot be lost sight of that pleading which has been admitted, the onus of proving it is discharged. In present case the appellant was even successful in proving the desertion by her testimony and statement of AW-2.
The Apex Court in the case of V.Prabhakara vs. Basavaraj K. (dead) by L.R. and Ors. reported in AIR 2021 SC 4830 has held as under:-
“15. Section 17 defines “an admission” which would include a statement both oral and documentary. When such an admission is clear and unequivocal, there is no need to prove it while taking judicial notice. Under Section 58, a fact admitted need not be proved unless the court warrants it. *********”
The parties were living separately since 2015 without the consent of the spouse and there was no reasonable cause for leaving the matrimonial house. The appeal is allowed and the marriage of the parties to the lis is dissolved, by a decree of divorce. Office is directed to prepare the decree accordingly.