IMPORTANT POINT
Divorce – Deserted spouse must prove that there is a factum of separation and there is an intention on part of deserting spouse to bring cohabitation to a permanent end – Every matrimonial dispute is different from another.

JUDGMENT :

ABHAY S. OKA, J.

Leave granted.

1. This appeal arises from a matrimonial dispute between the appellant-husband and the respondent-wife. The petition filed by the appellant-husband on the grounds of cruelty and desertion set out in clauses (ia) and (ib) of sub-section (1) of Section 13 of the Hindu Marriage Act, 1955 (for short “HM Act”) was dismissed by the District Court. By the impugned order, the appeal preferred by the appellant against the decree of the District Court has been dismissed by the Gauhati High Court.

2. The marriage between the appellant and the respondent was solemnized on 17th June 2009 at Tezpur in Assam. According to the appellant’s case, from 30th June 2009, the respondent left the matrimonial home with all her personal belongings. According to the appellant’s case, from 30th June 2009, the respondent deserted him.

3. On 9th September 2011, the appellant filed the petition for seeking a decree of divorce in the District Court at Tezpur on the grounds of cruelty and desertion. The ground of cruelty was based on an allegation that the respondent consistently refused to consummate the marriage, thereby causing mental agony to the appellant. The appellant did not succeed before both the Courts. As can be seen from the Orders passed by this Court from time to time, an effort was made to bring about an amicable settlement in the matrimonial dispute. The case was referred to mediation which eventually failed. After that, we interacted with the parties on video conference. However, an amicable settlement could not be arrived at.

4. Shri Manish Goswami, the learned counsel appearing for the appellant submitted that it is an admitted position that the marriage was not consummated. His submission is that the refusal by the respondent to consummate marriage caused mental cruelty to the appellant. He submitted that after 30th June 2009, the respondent never showed any inclination to return to the matrimonial home.

She never had any intention to start cohabiting with the appellant. He submitted that though on 21st December 2009, the respondent visited the matrimonial home for a day, it was for the reason of the death of the appellant’s mother. Therefore, it cannot amount to the resumption of matrimonial relationship. He placed reliance on the decision of this Court in the case of Lachman Utamchand Kirpalani v. Meena @ Mota, (1964) 4 SCR 331 on the concept of desertion. He submitted that the law laid down by this Court in the said decision has been consistently followed till date. He submitted that both the Courts committed an error by holding that the ground of desertion was not made out. The learned counsel lastly urged that in view of the irretrievable breakdown of marriage, this Court should exercise its plenary jurisdiction under Article 142 of the Constitution of India to pass a decree of divorce.

5. Ms. Nidhi, the learned counsel appearing for the respondent submitted that the appellant has not established that there was no consummation of marriage. She submitted that the evidence is to the contrary. She invited our attention to the explanation to subsection (1) of Section 13, which defines desertion. She urged that even the factum of desertion has not been established by the appellant, as rightly held by the District Court and the High Court. She invited our attention to the deposition of the respondent recorded by the District Court. She submitted that there was no intention on the part of the respondent to desert the appellant. On the contrary, the appellant has made no efforts to resume cohabitation. She relied upon a decision of this Court in the case of Darshan Gupta v. Radhika Gupta, (2013) 9 SCC 1. She submitted that merely because husband and wife are staying separately, an inference regarding desertion on the wife’s part cannot be drawn. Her submission is that as a case for grant of divorce on any of the grounds specified in sub-section (1) of Section 13 of HM Act is not made out, this Court should