Bijendra v. Rekha
“Refusing to Return Home Without Reasonable Cause Is Desertion: Supreme Court Grants Divorce After 20 Years of Separation”
TL;DR
The Supreme Court allowed, in part, a husband's appeal and dissolved a marriage solemnized on 23.06.2003 by a decree of divorce under Section 13(1)(ib) of the Hindu Marriage Act, 1955 on the ground of desertion. The parties had lived apart since 15.12.2005. The Trial Court had found that the wife deserted the husband but still refused divorce, and the High Court held that the husband had not proved animus deserendi. The Supreme Court held the High Court was wrong to infer that the wife had no intention to desert, because she refused to return to the matrimonial home when the husband and a witness went to take her back, without reasonable cause. The findings of the courts below on cruelty were left undisturbed. The husband was directed to pay Rs. 7,00,000 as permanent alimony within three months.
The Bottom Line
A spouse who simply asserts in court that she is willing to perform marital obligations cannot defeat a divorce petition when her conduct shows otherwise. Where the couple have lived apart for years, there are no children, mediation has failed, and the wife refused without reasonable cause to return when her husband came to take her back, desertion is established. The Court granted divorce on that ground alone (not under Article 142), and ordered Rs. 7 lakh as permanent alimony.
Case Timeline
The journey from FIR to Supreme Court verdict
Marriage Solemnized
Bijendra and Rekha were married. No children were later born from the marriage.
Marriage Solemnized
Bijendra and Rekha were married. No children were later born from the marriage.
Wife Goes to Parental Home
The wife went back to her parental home.
Wife Goes to Parental Home
The wife went back to her parental home.
Wife Declines to Resume Cohabitation
The husband went to the wife's house to bring her back, but she declined to resume cohabitation. The parties have lived separately since this date.
Wife Declines to Resume Cohabitation
The husband went to the wife's house to bring her back, but she declined to resume cohabitation. The parties have lived separately since this date.
Divorce Petition Filed
The husband filed a petition under Section 13 of the Hindu Marriage Act, 1955 on the grounds of desertion and mental cruelty.
Divorce Petition Filed
The husband filed a petition under Section 13 of the Hindu Marriage Act, 1955 on the grounds of desertion and mental cruelty.
Mediation Fails
The Supreme Court Mediation Centre, to which the dispute was referred during the pendency of the appeal, submitted a failure report.
Mediation Fails
The Supreme Court Mediation Centre, to which the dispute was referred during the pendency of the appeal, submitted a failure report.
Supreme Court Grants Divorce
The Supreme Court partly allowed the appeal, set aside the High Court finding on desertion, dissolved the marriage under Section 13(1)(ib) of the HMA and directed payment of Rs. 7,00,000 as permanent alimony.
Supreme Court Grants Divorce
The Supreme Court partly allowed the appeal, set aside the High Court finding on desertion, dissolved the marriage under Section 13(1)(ib) of the HMA and directed payment of Rs. 7,00,000 as permanent alimony.
The Story
The marriage between Bijendra and Rekha was solemnized on 23.06.2003. According to the husband, soon after the marriage the wife drifted away from him on account of his educational qualifications and insulted him by calling him "illiterate" and "rustic". He claimed that in two years of marriage she joined his company only four or five times, and that her behaviour was cruel, due to which the marriage could not even be consummated.
On 30.11.2005 the wife went back to her parental home. On 15.12.2005 the husband went to the house of the wife to bring her back, but she declined to resume cohabitation. Since then the parties have lived separately without any resumption of the matrimonial relationship. No children were born from the marriage.
On 20.06.2007 the husband filed a petition under Section 13 of the Hindu Marriage Act, 1955 (HMA) seeking divorce on the grounds of desertion and mental cruelty. The Trial Court held that the allegations of denial of sexual relations, insulting the husband and his family, and abusive language were not satisfactorily proved. On desertion, although it held that the wife had been living separately since 15.12.2005 (and, relying on the unchallenged testimony of the witness Ram Prakash (AW-4), that she refused to go with the husband when he came to take her), it concluded that this circumstance alone could not entitle the husband to divorce. The petition was dismissed.
The husband appealed to the High Court under Section 28 of the HMA. The High Court found the testimony of the witnesses and the husband on cruelty shaky and unreliable. On desertion, it acknowledged the finding that the parties had lived apart since 15.12.2005, but held that mere physical separation does not constitute desertion under Section 13(1)(ib) and that the husband had failed to prove animus deserendi. The appeal was dismissed, and the husband approached the Supreme Court.
During the pendency of the appeal, the dispute was referred to the Supreme Court Mediation Centre, but on 28.04.2014 the mediator submitted a failure report.
Legal Issues
Click each question to reveal the Supreme Court's answer
Arguments
The battle of arguments before the Supreme Court
Petitioner
Vihaan Kumar
Trial Court finding of desertion had become final
The Trial Court recorded a finding that the respondent deserted the appellant from 15.12.2005. The respondent neither filed an appeal nor cross-objections against this finding, so it became final and binding on her. Having found desertion, the Trial Court was bound to grant a decree under Section 13(1)(ib) of the HMA, since desertion for a continuous period of not less than two years is a complete statutory ground. Refusal of a decree contrary to its own finding was an error of law apparent on the record.
No duty to seek restitution of conjugal rights first
Challenging the adverse inference drawn by the High Court, it was argued that Section 13(1)(ib) imposes no obligation on a deserted spouse to seek restitution of conjugal rights as a precondition to divorce, and that the two remedies are separate and independent.
Separation admitted and intention shown by refusal to return
The factum of separation is admitted, and animus deserendi is established by the wife's refusal to return to her matrimonial home since 15.12.2005.
Respondent
State of Haryana
High Court correctly appreciated the evidence
The impugned judgment needs no interference because the High Court independently appreciated the entire evidence and correctly reversed the Trial Court finding on desertion by applying the settled principles laid down in Lachman Utamchand Kirpalani v. Meena alias Mota.
Essential ingredients of desertion not proved
The husband failed to establish the essential ingredients of desertion contemplated under Section 13(1)(ib) of the HMA. The wife stated in her deposition that she never refused to discharge her marital obligations and did not refuse to accompany her husband.
Court's Analysis
How the Court reasoned its decision
The Court framed the only question as whether the High Court was justified in holding that the ingredients of desertion under Section 13(1)(ib) were not established, in the backdrop of the undisputed fact that the parties had lived apart since 15.12.2005 (paragraph 14). It reproduced the Trial Court and High Court reasoning (paragraphs 15 and 16) and then set out the law on desertion from Savitri Pandey v. Prem Chandra Pandey, which restates the principle that desertion means the intentional permanent forsaking and abandonment of one spouse by the other without consent and without reasonable cause, and requires both the factum of separation and the intention to bring cohabitation permanently to an end (animus deserendi). Applying that law, the Court held that a mere assertion by the wife of readiness to perform her marital obligations cannot be enough when her conduct reflects otherwise. The unchallenged evidence of AW-4, who accompanied the husband to bring her back, showed she refused without reasonable cause. The Court also drew on Naveen Kohli v. Neelu Kohli for the proposition that where parties have remained separated for a long time, the law must acknowledge the reality of the situation, and on Shilpa Sailesh v. Varun Sreenivasan for the view that prolonged separation is a significant factor in judging whether a marital bond has become incapable of restoration. The Court expressly clarified that the appeal was not decided by invoking Article 142 of the Constitution; those observations were treated as instructive only. It noted there were no children and all attempts at reconciliation had failed, and held that compelling the parties to continue in marriage would not serve the ends of justice.
mere assertion cannot be sufficient when the conduct reflects otherwise
Para 19
A spouse's statement of willingness to perform marital obligations does not defeat a claim of desertion if conduct shows an intention to stay away.
the High Court was wrong in inferring that there was no intention on the part of the respondent to desert the appellant
Para 19
The Supreme Court corrected the High Court inference on animus deserendi on the record before it.
compelling the parties to continue in marriage would fail to serve the ends of justice
Para 20
With no children and all reconciliation attempts failed, forcing the marriage to continue was seen as unjust.
Though this Appeal is not decided by invoking the extraordinary jurisdiction of this Court under Article 142 of the Constitution of India
Para 22
The divorce was granted on a statutory ground under the HMA, with Shilpa Sailesh used only as an instructive guide on whether a relationship has in substance ceased to exist.
Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case
Para 18
The Court quoted this passage from Savitri Pandey as the governing test for desertion.
The Verdict
Relief Granted
The husband obtained a decree of divorce on the ground of desertion; the wife receives permanent alimony of Rs. 7,00,000.
Directions Issued
- The part of the High Court judgment which interfered with the Trial Court observation on desertion and held that desertion was not proved is set aside.
- The findings of the Trial Court and the High Court on the ground of cruelty are not disturbed.
- The marriage between Bijendra and Rekha solemnized on 23.06.2003 is dissolved by a decree of divorce under Section 13(1)(ib) of the HMA.
- The husband shall pay Rs. 7,00,000 as permanent alimony to the wife by depositing it before the Trial Court within three months. On default the wife may initiate execution, and the amount will carry interest at 9% per annum.
- No order as to costs. The Registry shall draw the decree accordingly.
Key Legal Principles Established
Desertion means the intentional permanent forsaking and abandonment of one spouse by the other without consent and without reasonable cause.
For the deserting spouse, two conditions are essential: the factum of separation and the intention to end cohabitation permanently (animus deserendi).
Desertion is a continuous course of conduct and is a matter of inference drawn from the facts and circumstances of each case.
A spouse's bare assertion of readiness to perform marital obligations cannot outweigh contrary conduct, such as refusing to return to the matrimonial home without reasonable cause.
Prolonged separation with no prospect of reconciliation is a relevant consideration in judging whether a marriage has in substance ceased to exist.
The Court can award permanent alimony at a figure higher than the amount offered by the paying spouse, on the facts of the case.
Key Takeaways
What different people should know from this case
- If your spouse has refused without good reason to come back to the matrimonial home for a long period, this can amount to desertion, a ground for divorce under the Hindu Marriage Act.
- Courts look at what a spouse does, not only what they say in court. Refusing to return when you are asked to is strong evidence of intention to stay away.
- Evidence from independent witnesses who were present when the spouse was asked to return can be decisive.
- Divorce on one proved ground is enough, even if other allegations such as cruelty are not proved.
- When a marriage is dissolved, the court can direct permanent alimony, with interest if it is not paid on time.
Legal Framework
Applicable laws and provisions
Constitutional Provisions
Article 142
Constitution of India
“Power of the Supreme Court to pass orders necessary for doing complete justice in any cause or matter.”
Relevance: The Court noted the appeal was not decided under Article 142, but referred to Shilpa Sailesh (an Article 142 case) as instructive on whether the marital relationship has in substance ceased to exist.
Statutory Provisions
Section 13(1)(ib)
Hindu Marriage Act, 1955
“A marriage may be dissolved by a decree of divorce on the petition of either spouse on the ground that the other has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.”
Relevance: The statutory ground on which the Supreme Court granted the decree of divorce.
Section 28
Hindu Marriage Act, 1955
“Provides for appeals from decrees and orders made under the Act.”
Relevance: The husband appealed the Trial Court dismissal to the High Court under this provision.
Related Cases & Precedents
Shilpa Sailesh v. Varun Sreenivasan
cited(2023) 14 SCC 231
Cited on the contours of Article 142 jurisdiction to dissolve marriage on irretrievable breakdown; prolonged separation is a significant factor in evaluating whether the marital bond is incapable of restoration.
Naveen Kohli v. Neelu Kohli
cited(2006) 4 SCC 558
Where parties have remained separated for a long time, the law must acknowledge that the marriage may have broken down beyond repair.
Savitri Pandey v. Prem Chandra Pandey
followed(2002) 2 SCC 73
Explained the meaning and essential ingredients of desertion, which the Court applied.
Lachman Utamchand Kirpalani v. Meena alias Mota
cited(1964) 4 SCR 331
Settled principles on desertion relied on by the respondent and referred to in Savitri Pandey (also reported as AIR 1964 SC 40).
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