IMPORTANT POINTS
(1) Divorce – In matrimonial matters involving two individuals, it is not for society or for Court to sit in judgment over which spouses’ approach is correct or not – Long period of separation without any hope for reconciliation amounts to cruelty to both parties.
(2) Supreme Court under Article 142(1) of Constitution of India has discretion to dissolve marriage on the ground of irretrievable breakdown.

JUDGMENT :

MANMOHAN, J.

1. The present Appeal has been filed challenging the judgment dated 13th April 2011 passed by the Gauhati High Court (Shillong Bench), whereby the appeal filed by the Respondent-wife was allowed and the judgment and decree dated 9th March 2010 dissolving the marriage on the ground of desertion by the Respondent-wife passed by the Additional Deputy Commissioner (Judicial), Shillong was set aside.

FACTUAL BACKGROUND

2. Briefly stated, the relevant facts are that the marriage between Appellant and Respondent was solemnized according to Hindu rites and rituals on 04th August 2000 at Shillong. The parties knew each other prior to their marriage as they had been working together since 1992 as Development Officers under Life Insurance Corporation of India Ltd.

3. According to the Respondent-wife, though the Appellant-husband knew the nature of Respondent’s duty and responsibility in their office even before their marriage, yet the Appellant and his family members demanded the Respondent give up her job ignoring the fact that she had to financially look after her old and ailing mother, her brother and other dependents. It is the Respondent-wife’s case that due to the continuous ill-treatment meted out by the Appellant and his family, Respondent-wife was compelled to leave her matrimonial home in 2001.

4. In 2003, Appellant-husband instituted a suit for divorce before the Additional Deputy Commissioner (Judicial), Shillong for dissolution of the marriage under Section 13(1)(i-b) of the HINDU MARRIAGE ACT , 1955 (“the Act”). However, the suit was dismissed by the learned Additional Deputy Commissioner (J), Shillong as premature vide judgment dated 18th May 2006.

5. The Appellant preferred RFA No. 9(SH) of 2006 before the High Court challenging the judgment dated 18th May 2006, but the same was withdrawn by the Appellant vide order dated 22nd November 2007 with liberty to file a fresh suit.

6. The suit being MAT Divorce Suit No. 13(T) of 2007, underlying the present proceedings was filed by the Appellant-husband on 29th November 2007 under Section 13(i)(i-a))(i-b) of the Act contending that the Respondent had deserted the Appellant-husband with wilful intent of not returning to the matrimonial home.

7. The Additional Dy. Commissioner, Shillong vide judgment dated 9th March 2010 dissolved the marriage observing that Appellant-husband has been able to prove his case under Section 13(1)(i-b) of the Act namely desertion.

8. The Respondent-wife feeling aggrieved by the judgment and decree dated 9th March 2010 filed a First Appeal being RFA No. (SH) 1 of 2010 before the High Court. Vide judgment dated 13th April 2011, High Court allowed the appeal filed by Respondent-wife observing that there was no intent to permanently forsake and abandon the Appellant-husband. The High Court in paragraph 6 and 7 of the impugned judgment dated 13th April 2011 has held as under:

“6. The question which falls for consideration in this appeal is whether there is an intentional permanent forsaking and abandonment of one spouse by the other without the other's consent and without reasonable cause? It is a well settled proposition of law that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt [See Bipinchandra Saisinhbhai (supra)]. In my opinion, the respondent is unable to clinchingly establish that the appellant has deserted him. The evidence led by him are absolutely insufficient to prove desertio