The Supreme Court of India has partly allowed an appeal filed by a husband and granted a decree of divorce under Section 13(1)(ib) of the Hindu Marriage Act, 1955, ruling that mere verbal assertions of readiness to discharge marital duties cannot disprove desertion when the spouse’s conduct demonstrates an active choice to abandon the relationship. A Bench comprising Justice Prashant Kumar Mishra and Justice Shree Chandrashekhar set aside the High Court’s verdict which had rejected the husband’s plea for divorce on the ground of desertion. While upholding the concurrent findings of the courts below that mental cruelty was not established, the Supreme Court held that the appellant-husband had successfully proven desertion, noting that the parties had been residing separately continuously since December 15, 2005, without any resumption of cohabitation.
Background of the Case
The marriage between the parties was solemnised on June 23, 2003. According to the appellant-husband, the respondent-wife drifted away from him immediately after the marriage on account of his educational qualifications, repeatedly insulting him by calling him “illiterate” and “rustic.” The husband asserted that in the span of two years of marriage, the wife joined his company only four or five times, and that too after much persuasion, alleging that her behaviour prevented the marriage from being consummated.
On November 30, 2005, the wife returned to her parental home. When the husband went to her house on December 15, 2005, to bring her back, she declined to resume cohabitation. Since that date, the parties have lived separately without resuming their matrimonial relationship, and no children were born of the wedlock. Consequently, on June 20, 2007, the husband filed a petition under Section 13 of the Hindu Marriage Act, 1955 (HMA) seeking divorce on the grounds of mental cruelty and desertion.
The Trial Court dismissed the divorce petition. On the issue of cruelty, it held that allegations regarding denial of sexual relations, insulting the husband and his family, and abusive language were not satisfactorily proved. Regarding desertion, although the Trial Court found that the wife had been living separately since December 15, 2005, it concluded that this circumstance alone did not entitle the husband to a decree of divorce.
The husband challenged the decree before the High Court under Section 28 of the HMA. The High Court dismissed the appeal, holding that he had failed to establish either cruelty or desertion. With respect to cruelty, the High Court found the testimonies shaky and unreliable. On desertion, the High Court observed that mere physical separation does not constitute desertion under Section 13(1)(ib) of the HMA, recording:
“In view of the above statement of Rekha, it cannot be said that she has decided to end her marital obligations. In our considered opinion, the appellant has failed to prove the essential ingredients of desertion i.e. animus deserendi, therefore, the submission of learned counsel for the appellant that in view of the categorical finding of the learned trial Court in Para 6, the appellant is entitled for decree of divorce on the ground of desertion, has no substance.”
Aggrieved, the husband approached the Supreme Court. During the pendency of the appeal, the matter was referred to the Supreme Court Mediation Centre, but on April 28, 2014, the mediator submitted a failure report.
Arguments of the Parties
Senior counsel appearing for the appellant-husband submitted that the Trial Court had recorded a finding in his favour that the wife deserted him from December 15, 2005. Because the wife neither appealed nor filed cross-objections against that specific finding, it became final and binding. Counsel submitted that continuous desertion for not less than two years is a complete statutory ground under Section 13(1)(ib) of the HMA, and the refusal of a decree in the teeth of that finding was an error of law apparent on the record. Addressing the High Court’s adverse inference, counsel argued that Section 13(1)(ib) imposes no obligation on a deserted spouse to seek restitution of conjugal rights as a prerequisite to divorce. It was further asserted that the factum of separation stood admitted and animus deserendi was established by the wife’s persistent refusal to return.
Opposing the appeal, counsel for the respondent-wife submitted that the High Court had independently appreciated the entire evidence on record and rightly reversed the Trial Court’s finding by applying settled principles laid down in Lachman Utamchand Kirpalani v. Meena alias Mota. Counsel contended that the husband had failed to establish the essential ingredients of desertion under the statute.
Analysis of the Court
The Supreme Court observed that the singular question before it was whether the High Court was justified in holding that the essential ingredients constituting desertion under Section 13(1)(ib) of the HMA had not been established.
The Bench examined the deposition recorded before the Trial Court, highlighting that an independent witness (AW-4) had testified that he accompanied the husband to bring the wife back, but she refused to return without any reasonable cause—a statement that went unchallenged.
Discussing the statutory concept of desertion, the Court relied on its ruling in Savitri Pandey v. Prem Chandra Pandey, which discussed the earlier principles in the Bipinchandra case and Lachman Utamchand Kirpalani v. Meena. The Court reiterated:
“‘Desertion’, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties.”
The Court noted that for desertion to be established, two conditions must coexist for the deserting spouse: the factum of separation and the intention to bring cohabitation permanently to an end (animus deserendi).
Highlighting the reality of protracted separation, the Court cited Naveen Kohli v. Neelu Kohli, quoting:
“Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.”
“Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.”
The Bench also noted the observations in Shilpa Sailesh v. Varun Sreenivasan regarding how prolonged separation indicates that a marital bond has ceased to exist, though clarifying that the present appeal was not being decided under Article 142 of the Constitution.
Applying these principles to the facts, the Supreme Court held that the High Court erred in concluding that there was no intention to desert:
“In the present case before us, the fact remains that the parties are living separately and even though the respondent has asserted in her deposition that she was ready to discharge her marital obligations, however, mere assertion cannot be sufficient when the conduct reflects otherwise. Considering that it was proven before the Trial Court that the parties had not cohabited with each other since December 2005, in our view, the High Court was wrong in inferring that there was no intention on the part of the respondent to desert the appellant.”
The Court found no grounds to interfere with the concurrent findings of the lower courts on the issue of cruelty.
Decision of the Court
The Supreme Court partly allowed the appeal, setting aside the High Court’s finding on desertion and dissolving the marriage between the parties by a decree of divorce under Section 13(1)(ib) of the Hindu Marriage Act, 1955.
On the issue of permanent alimony, while the appellant-husband offered to pay Rs. 5,00,000, the Court directed him to pay a sum of Rs. 7,00,000 to the respondent-wife within three months from the date of the judgment by depositing the amount before the Trial Court. The Court directed that failure to pay the sum within three months would entitle the respondent-wife to initiate execution proceedings, and the amount would carry interest at the rate of 9% per annum. No order was made as to costs.
Case Title: Bijendra v. Rekha
Case No.: Civil Appeal No. 10249 of 2014
Bench: Justice Prashant Kumar Mishra, Justice Shree Chandrashekhar
Date: September 02, 2026
