The main legal point established in the judgment is the interpretation and application of 'desertion' under Section 13(1)(ib) of the Hindu Marriage Act, 1955, emphasizing the need to prove factum of separation and animus deserendi on the part of the deserting spouse.

JUDGMENT :

(Alok Aradhe, J.)

Mr. R.B. Sadasivappa, learned counsel for the appellant.

Smt.Bindu U., learned counsel for the respondent.

This appeal under Section 19(1) of the Family Courts Act, 1984, has been filed against judgment and decree dated 13.01.2014 by which the Family Court has dismissed the petition filed by the appellant seeking dissolution of marriage on the ground of desertion.

2. Facts giving rise to filing of this appeal briefly stated are that the marriage between the parties of this appeal was solemnized on 22.11.2000 in Bengaluru. The respondent stayed in the matrimonial home only for a period of 4 months and thereafter, left the matrimonial home and started residing with her parents. The appellant thereupon filed a petition seeking dissolution of marriage on the ground of desertion on 03.11.2001 which was dismissed by the Family Court vide judgment and decree dated 07.04.2006. Thereafter, the appellant filed a petition seeking dissolution of marriage enumerated under Section 13(1)(ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') on the ground of desertion. The respondent filed statement of objections. The Family Court recorded the evidence of the parties. The Family Court, by judgment dated 13.01.2014, inter alia held that the parties were residing separately for a period of 5 years yet the appellant has failed to prove animus deserendi and therefore, dismissed the petition filed by the appellant under Section 13(1)(ib) of the Act. In the aforesaid factual background, this appeal has been filed.

3. Learned counsel for the appellant submitted that the respondent, in her cross-examination, has admitted that she was residing in the matrimonial home only for a period of 4 months from the date of marriage. It is further submitted that even though the Family Court itself found that the parties have been living separately for a period of 5 years, yet the Family Court erred in not granting a decree for dissolution of marriage. It is further submitted that the Family Court ought to have appreciated that even though the respondent left the matrimonial home, she did not make any attempt to join the matrimonial home inasmuch as neither any notice was sent on behalf of the respondent for joining the matrimonial home nor any petition under Section 9 of the Act was filed. It is further submitted that if this Court grants the decree of divorce, the respondent is entitled to permanent alimony.

4. On the other hand, learned counsel for the respondent submitted that the respondent was thrown out of the matrimonial home and the Family Court, in the fact situation of the case, has rightly concluded that the ground of dissolution has not been made out. However, it is admitted by the learned counsel for the respondent that parties are now residing separately for 21 years. It is also pointed out that the appellant has to pay the arrears at the rate of Rs.5,000/- p.m. from the date of filing of the petition in pursuance of order passed in a proceeding under the provisions of Protection of Women from Domestic Violence Act, 2005, i.e. from 30.06.2014 which has not been paid to her. It is further submitted that respondent is also entitled to permanent alimony.

5. We have considered the submissions made on both sides and have perused the record. Section 13(1)(ib) of the Act is extracted below for the facility of reference:

“13(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

(i) xxxx

(ia) xxxx

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or”

6. A Five Judge Bench of the Supreme Court in LACHMAN UTAMCHAND KIRIPALANI Vs. MEENA @ MOTA, AIR 1964 SC 40 which has been followed in DEBANANDA TAMULI Vs. KAKUMONI KATAKY, 2022 SCC Online SC 187, while dealing with the expr