IMPORTANT POINT
Desertion is not the withdrawal from a place but from a state of things.

JUDGMENT

Arindam Sinha, J.—The appeal has been preferred against judgment dated 16th May, 2022 of the family Court refusing to dissolve the marriage as petitioned by appellant-husband. Facts of the case are, the marriage was solemnized on 3rd February, 2014. On 12th February, 2015 a son was born to the couple. On 7th February, 2016 respondent-wife left the matrimonial home. Mr. Parija, learned advocate appears on behalf of appellant-husband and submits, he is urging the ground of desertion. The family Court erred in not appreciating there was desertion and therefore ground under section 13(1)(i-b) in Hindu Marriage Act, 1955 stood demonstrated for the marriage to be dissolved. Since February, 2016 there has been no husband-wife relationship for the parties to remain married. As such the marriage has irretrievably broken down and not granting divorce has perpetuated the cruelty. He relies on judgment dated 26th April, 2023 of the Supreme Court in Civil Appeal no.2012 of 2013 (Shri Rakesh Raman v. Smt. Kavita), paragraph-18, reproduced below.

“18. We have a married couple before us who have barely stayed together as a couple for four years and who have now been living separately for the last 25 years. There is no child out of the wedlock. The matrimonial bond is completely broken and is beyond repair. We have no doubt that this relationship must end as its continuation is causing cruelty on both the sides. The long separation and absence of cohabitation and the complete breakdown of all meaningful bonds and the existing bitterness between the two, has to be read as cruelty under Section 13(1) (ia) of the 1955 Act. We therefore hold that in a given case, such as the one at hand, where the marital relationship has broken down irretrievably, where there is a long separation and absence of cohabitation (as in the present case for the last 25 years), with multiple Court cases between the parties; then continuation of such a ‘marriage’ would only mean giving sanction to cruelty which each is inflicting on the other. We are also conscious of the fact that a dissolution of this marriage would affect only the two parties as there is no child out of the wedlock.” (emphasis supplied)

2. He also relies on view taken by a Division Bench of the High Court of Madras by judgment dated 20th January, 2021 in C.M.A. no.3829 of 2019 (Bhuvaneswari v. S.K. Jayakumar). He relies on paragraph-12 wherein the Bench relied on judgment of the Supreme Court in Pankaj Mahajan v. Dimple alias Kajal reported in (2011) 12 SCC 1, paragraphs 36 and 37. We must point out here itself that Pankaj Mahajan (supra) is not applicable because the Supreme Court confirmed fact found in that case that there was mental disorder of respondent-wife.

3. Mr. Mohapatra, learned advocate appears on behalf of respondent-wife and submits, none of the grounds taken in the petition, neither cruelty nor desertion was proved. The Court below correctly appreciated the facts and made impugned judgment. It be confirmed and the appeal dismissed.

4. The only ground urged is desertion. We perused paragraph-16 in the petition for fact of desertion pleaded. The paragraph is reproduced below.

“16. That on dt.07-02-2016 while the petitioner was present in matrimonial home the respondent demanded an amount of Rs.30,000/- (Thirty Thousand) to the petitioner and on enquiry made by the petitioner the respondent came straight forward and told that her parents were in need of money and the aforesaid amount should be given to her parents for which the petitioner disclosed his inability to give the said amount to the parents of the respondent for which the respondent became violent and assaulted the petitioner and to the ailing old parents and even threaten to kill the parents of the petitioner. And the respondent on dt.07-02-2016 left the matrimonial home along with the child with some relatives of the respondent and remained at her parents house in Village Khankar, Sdn./Dist.- Dhenkanal till now.