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The Apex court in the case of Debananda Tamuli vs. Smti Kakumoni Kataky 1 dissolved the marriage of the couple on the grounds of desertion.
Desertion as a ground of divorce is dealt with under Section 13 (1) (ib) of the Hindu Marriage Act, 1955. It means “the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause”
The court based its decision on the reason that the wife didn’t provide any explanation for staying away from her matrimonial house.
The husband filed the petition on grounds of cruelty and desertion was dismissed by the district court and later on by the Guwahati High court.
When the aggrieved moved to the Supreme court, the court noted that the couple is staying apart since 1st July 2009. During this period, she came back only once on account of her mother-in-law in December 2009 and stayed for only a day which surely cannot be said resumption of cohabitation.
The Divisional Bench of Justice Ajay Rastogi and Abhay S. Oka referred to the case of Lachman Utamchand Kirpalani vs Meena @ Mota 2 and observed that “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.”
Partly allowing the appeal, the couple was given divorce and the husband was directed to pay a sum of Rs 15,00,000 (Fifteen lakhs) to the wife (respondent) within the period of 8 weeks.
1 2022 LiveLaw (SC) 167
2 (1964) 4 SCR 331
Legal News by Gaurang Takkar.
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