Bijendra vs Rekha

2026 INSC 939
NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10249 OF 2014
BIJENDRA …APPELLANT(S)
VERSUS

REKHA …RESPONDENT(S)

J U D G M E N T

PRASHANT KUMAR MISHRA, J.

A. FACTUAL ASPECTS

1. The case before us presents an unfortunate situation wherein the
appellant-husband and respondent-wife having been in continuous separation
since 2005, have not been able to resolve their marital dispute.
2. The marriage between the parties was solemnized on 23.06.2003. It is
stated that right after marriage, the respondent drifted away from the appellant
on account of his educational qualifications, which even led to the respondent
insulting him by calling him “illiterate, “rustic”. The appellant further asserts
that in the span of two years of marriage, respondent joined the company of the
Signature Not Verified
appellant just 4 or 5 times that too after much persuasion of the appellant.
Digitally signed by
NISHA KHULBEY
Date: 2026.09.02
16:36:55 IST
Reason:
During this time, the appellant claims that the behavior of the respondent was
cruel due to which even the marriage could not be consummated. On
Civil Appeal No.10249 of 2014 Page 1 of 11

30.11.2005, the respondent went back to her parental home. Thereafter, on
15.12.2005, the appellant went to the house of the respondent to bring her
back; however, the respondent declined to resume cohabitation with him. Ever
since then, the parties have been living separately without any resumption of
their matrimonial relationship. Further, no children have been born out of the
wedlock.
3. In the light of such events, the appellant on 20.06.2007 filed a petition
1
under Section 13 of the Hindu Marriage Act, 1955 for divorce on the ground of
desertion and mental cruelty.
4. The Trial Court on the issue of cruelty held that the allegations regarding
the denial of sexual relations, insulting the appellant and his family and use of
abusive language were not satisfactorily proved. However, on the issue of
desertion, despite holding that the respondent-wife had been living separately
since 15.12.2005, it nevertheless concluded that this circumstance alone
cannot entitle the appellant for divorce. The divorce petition of the appellant was
hence dismissed.
5. Being aggrieved with the judgment of the Trial Court, the appellant filed
an appeal under Section 28 of the HMA before the High Court.
6. In the appeal proceedings initiated by the appellant, vide the impugned
judgment High Court dismissed the appeal holding that appellant had failed to
establish either cruelty or desertion so as to entitle him to a decree of divorce.
With respect to the ground of cruelty, the High Court found the testimony of the

1
Hereinafter, ‘HMA’
Civil Appeal No.10249 of 2014 Page 2 of 11

witnesses and the appellant-husband shaky and unreliable. However, on the
ground of desertion while acknowledging the finding of the Trial Court that the
parties had been living separately since 15.12.2005, it held that mere physical
separation by itself would not constitute desertion within the meaning of Section
13(1)(ib) of the HMA. Further in paragraph 26, the High Court made the
following observations
“ 26. In view of the above statement of Rekha, it cannot be said
that she has decided to end her marital obligations. In our
considered opinion, the appellant has failed to prove the
essential ingredients of desertion i.e. animus deserendi ,
therefore, the submission of learned counsel for the appellant
that in view of the categorical finding of the learned trial Court
in Para 6, the appellant is entitled for decree of divorce on the
ground of desertion, has no substance.”
(emphasis added)

B. SUBMISSIONS OF PARTIES
7. Learned senior counsel appearing for the appellant would submit that in
the present case, Trial Court's finding that the respondent deserted the
appellant from 15.12.2005 was recorded in the appellant's favour. The
respondent neither preferred an appeal nor filed any cross-objection assailing
the finding, therefore, it became final and binding upon her.
8. It was submitted that the Trial Court was bound to grant a decree under
Section 13(1)(ib) of the HMA on the ground of desertion for a continuous period
of not less than two years is a complete statutory ground, and refusal of a decree
was in the teeth of its own finding which is an error of law apparent on the
record.
Civil Appeal No.10249 of 2014 Page 3 of 11

9. On the aspect of adverse inference drawn by the High Court in paragraph
25, it was argued that Section 13(1)(ib) of the HMA imposes no obligation on a
deserted spouse to seek restitution as a precondition to divorce and that these
two remedies are separate and independent.
10. The appellant submits that the factum of separation is admitted and
is established by the refusal of the respondent-wife to return
animus deserendi
to her matrimonial home since 15.12.2005.
11. Per contra, the learned counsel for the respondent-wife submitted that the
impugned judgment requires no interference by this Court as the High Court
independently appreciated the entire evidence on record and correctly reversed
the finding of the Trial Court on the issue of desertion by applying the settled
principles laid down by this Court in Lachman Utamchand Kirpalani v.
2
Meena alias Mota . It was argued that the appellant-husband had failed to
establish the essential ingredients of desertion as contemplated under Section
13(1)(ib) of the HMA.
12. The rival submissions now fall for our consideration.
C. CONSIDERATION OF SUBMISSIONS

13. At the outset, we note that during the pendency this Appeal, the dispute
was referred to Supreme Court Mediation Centre, with a view to explore the
th
possibility of an amicable settlement between the parties. However, on 28 April
2014, the learned Mediator submitted a failure report.

2
( 1964) 4 SCR 331
Civil Appeal No.10249 of 2014 Page 4 of 11

14. There is no dispute on the factual position that the parties have been
residing separately since 15.12.2005. In this undisputed factual backdrop, the
only question arises for our consideration is whether the High Court was
justified in holding that the essential ingredients constituting desertion under
Section 13(1)(ib) of the HMA had not been established, thereby disentitling the
appellant to a decree of divorce.

15. The Trial Court while deliberating on the issue of whether the respondent-
wife had deserted the appellant-husband made the following observations:
“6. This is an admitted fact that the Non-Applicant has been
staying in the house of her father and mother. As per the
statement of Vijender AW-1, the Non-applicant went to the
house of her parents on 30.11.2005. On 15.12.2005 when he
went to bring the Non-applicant, then the Non-applicant refused
to come alongwith him. Though it is admitted by Non-Applicant
Rekha that the Non-Applicant has come to take her along with
him but she had not refused to accompany him, but from the
statement of Ram Prakash AW-4, who has appeared as a
witness for the Applicant, it becomes apparent that they
had gone to take Non-Applicant to the house of the
Applicant but she has refused to go with them. There is no
challenge to the statement made by this witness. This is not
brought out from the statement of (sic) the Non Applicant
that her statement is more weighty or that it is strong and
deniable. From this it is proved that the Non applicant had
disserted the company of the Applicant on 15.12.2005 and
the decision on this issue is given accordingly .”

(emphasis added)

16. The High Court on the other hand held that the element of animus
deserendi was not proved by the appellant-husband and that the respondent-
wife never denied to discharge her marital obligations. The High Court observed
thus:
“24 . In the instant case, Bijendra (P.W.-1) has stated that on
15.12.2005 when he went to bring back his wife, she refused to
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accompany him and told that she cannot live with him and also
asked to perform second marriage and free her. Smt Rekha has
stated that she never refused to discharge her marital
obligations and refused to accompany her husband. In para
15 she denied that she does not like Bijendra as her
husband. In para 22 she again denied the suggestion that
she does not accept Bijendra as her husband, therefore, she
is living at Mehgaon.”

(emphasis supplied)

3
17. This Court in the Naveen Kohli v. Neelu Kohli underscored that though
marriage preservation remains the primary objective of matrimonial law,
however, where the parties remain separated for a long time, the law must
acknowledge the reality of such a situation.
“ 72. Once the parties have separated and the separation has
continued for a sufficient length of time and one of them has
presented a petition for divorce, it can well be presumed that
the marriage has broken down. The court, no doubt, should
seriously make an endeavour to reconcile the parties; yet, if it is
found that the breakdown is irreparable, then divorce should
not be withheld. The consequences of preservation in law of the
unworkable marriage which has long ceased to be effective are
bound to be a source of greater misery for the parties.

73. A law of divorce based mainly on fault is inadequate to deal
with a broken marriage. Under the fault theory, guilt has to be
proved; divorce courts are presented with concrete instances of
human behaviour as they bring the institution of marriage into
disrepute.

74. We have been principally impressed by the consideration
that once the marriage has broken down beyond repair, it would
be unrealistic for the law not to take notice of that fact, and it
would be harmful to society and injurious to the interests of the
parties. Where there has been a long period of continuous
separation, it may fairly be surmised that the matrimonial
bond is beyond repair. The marriage becomes a fiction,
though supported by a legal tie. By refusing to sever that
tie the law in such cases does not serve the sanctity of

3
(2006) 4 SCC 558
Civil Appeal No.10249 of 2014 Page 6 of 11

marriage; on the contrary, it shows scant regard for the
feelings and emotions of the parties.

75. Public interest demands not only that the married status
should, as far as possible, as long as possible, and whenever
possible, be maintained, but where a marriage has been
wrecked beyond the hope of salvage, public interest lies in
the recognition of that fact. ”
(emphasis added)

18. Also, this Court in the case of Savitri Pandey v. Prem Chandra
4
Pandey , while referring to long line of decisions, explained the true import and
essential ingredients of desertion in the following words:
“ 8. “Desertion”, for the purpose of seeking divorce under
the Act, means the intentional permanent forsaking and
abandonment of one spouse by the other without that
other's consent and without reasonable cause . In other words
it is a total repudiation of the obligations of marriage. Desertion
is not the withdrawal from a place but from a state of things.
Desertion, therefore, means withdrawing from the matrimonial
obligations i.e. not permitting or allowing and facilitating the
cohabitation between the parties. The proof of desertion has to
be considered by taking into consideration the concept of
marriage which in law legalises the sexual relationship between
man and woman in the society for the perpetuation of race,
permitting lawful indulgence in passion to prevent
licentiousness and for procreation of children. Desertion is not
a single act complete in itself, it is a continuous course of
conduct to be determined under the facts and
circumstances of each case…..

9. Following the decision in Bipinchandra case [AIR 1957 SC
176] this Court again reiterated the legal position in Lachman
Utamchand Kirpalani v. Meena [AIR 1964 SC 40] by holding that
in its essence desertion means the intentional permanent
forsaking and abandonment of one spouse by the other without
that other's consent, and without reasonable cause. For the
offence of desertion so far as the deserting spouse is
concerned, two essential conditions must be there ( 1 ) the
factum of separation, and ( 2 ) the intention to bring
cohabitation permanently to an end ( animus deserendi ).
Similarly two elements are essential so far as the deserted
spouse is concerned: ( 1 ) the absence of consent, and ( 2 )

4
(2002) 2 SCC 73
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absence of conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the necessary
intention aforesaid . For holding desertion as proved the
inference may be drawn from certain facts which may not in
another case be capable of leading to the same inference; that
is to say the facts have to be viewed as to the purpose which is
revealed by those acts or by conduct and expression of
intention, both anterior and subsequent to the actual acts of
separation.

10. To prove desertion in matrimonial matter it is not always
necessary that one of the spouses should have left the company
of the other as desertion could be proved while living under the
same roof. Desertion cannot be equated with separate living by
the parties to the marriage. Desertion may also be
constructive which can be inferred from the attending
circumstances. It has always to be kept in mind that the
question of desertion is a matter of inference to be drawn
from the facts and circumstances of each case. ”

(emphasis added)

19. In the present case before us, the fact remains that the parties are living
separately and even though the respondent has asserted in her deposition that
she was ready to discharge her marital obligations, however, mere assertion
cannot be sufficient when the conduct reflects otherwise. Considering that it
was proven before the Trial Court that the parties had not cohabited with each
other since December 2005, in our view, the High Court was wrong in inferring
that there was no intention on the part of the respondent to desert the appellant.
The record reflects that the appellant along with Ram Prakash (AW-4) had gone
to take the respondent to her matrimonial home, but she refused to go with
them without any reasonable cause which clearly shows that the respondent
has actively chosen to desert the company of the appellant.
Civil Appeal No.10249 of 2014 Page 8 of 11

20. There are no children born out of wedlock. All attempts at reconciliation
have failed. In these circumstances, compelling the parties to continue in
marriage would fail to serve the ends of justice.
21. We may also like to advert to the decision of this Court in the case of
5
Shilpa Sailesh v. Varun Sreenivasan wherein while deciding on the contours
of jurisdiction of this Court under Article 142 of the Constitution of India to
dissolve marriage on the ground of irretrievable breakdown of marriage observed
that prolonged period of separation would constitute a significant factor in
evaluating whether martial bond has become incapable of restoration.
22. Though this Appeal is not decided by invoking the extraordinary
jurisdiction of this Court under Article 142 of the Constitution of India, these
observations in Shilpa Sailesh (supra) are nevertheless instructive in
elucidating whether matrimonial relationship has in substance ceased to exist.
23. Thus, we hold that the respondent-wife had abandoned the matrimonial
relationship and that the appellant has successfully established the ground of
desertion. But, after having carefully perused the evidence on record, we find
that no case is made out to disturb the findings recorded by the Courts below
on the issue of cruelty.
24. On the issue of permanent alimony, during the proceedings, this Court
had asked the appellant as to the amount of permanent alimony which he would
be willing to pay to the respondent in the event this Court allows the dissolution
of marriage. In response, the appellant had agreed to pay a sum of Rs.5,00,000

5
( 2023) 14 SCC 231
Civil Appeal No.10249 of 2014 Page 9 of 11

(Rupees Five Lakhs only). In the facts of the case, we propose to direct the
appellant to pay a sum of Rs.7,00,000/- (Rupees Seven Lakhs only) towards
permanent alimony to the respondent within the period of three months from
today.

D. CONCLUSION
25. Keeping in view the above discussion, we pass the following order:
i. The Appeal is, accordingly, partly allowed by setting aside that part of
the impugned judgment by which the High Court interfered with the
observation of the Trial Court on the ground of desertion and held that
the element of desertion was not proved qua the respondent-wife. The
finding of the Trial Court and the High Court on the ground of cruelty
is not disturbed.
ii. Accordingly, the marriage between the appellant-Bijendra and the
respondent-Rekha solemnized on 23.06.2003 is hereby dissolved by a
decree of divorce under Section 13(1)(ib) of the HMA.
iii. The appellant-husband shall pay a sum of Rs.7,00,000/- (Rupees
Seven Lakhs only) towards permanent alimony to the respondent-wife
by depositing the same before the Trial Court within a period of three
months from today, failing which the respondent-wife can initiate
execution for recovery of the said amount. If the amount is not paid
within three months as directed above, it shall carry interest at the
rate of 9% per annum.
Civil Appeal No.10249 of 2014 Page 10 of 11

iv. No order as to costs.
v. Registry to draw the decree accordingly.

………………………………………J.
(PRASHANT KUMAR MISHRA)



………………………………………J.
(SHREE CHANDRASHEKHAR)

NEW DELHI;
SEPTEMBER 02, 2026.
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