Prolonged separation coupled with unjustified refusal to resume cohabitation establishes desertion under Section 13(1)(ib).

The parties married on 23 June 2003 and had no children. The appellant-husband alleged cruelty, including denial of matrimonial relations and insulting conduct, and stated that the respondent-wife left for her parental home on 30 November 2005 and refused to return when he went to bring her back on 15 December 2005. The parties thereafter lived separately without resuming cohabitation.

The appellant filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955 (“HMA”) on the grounds of cruelty and desertion.

The Trial Court found the allegations of cruelty unproved but held that the respondent had deserted the appellant from 15 December 2005, while nevertheless dismissing the divorce petition.

The High Court dismissed the appellant’s appeal, holding that physical separation alone did not establish desertion and that animus deserendi had not been proved.

Whether the respondent-wife had deserted the appellant-husband within the meaning of Section 13(1)(ib) of the HMA by living separately and refusing to resume cohabitation from 15 December 2005.

Whether the appellant was entitled to dissolution of marriage despite the concurrent findings that cruelty had not been proved.

What consequential relief, including permanent alimony, should be granted upon dissolution of the marriage?

The Court applied Section 13(1)(ib) of the HMA, under which desertion constitutes a ground for divorce where one spouse has deserted the other for a continuous period of not less than two years immediately preceding the presentation of the petition.

Desertion requires both the factum of separation and the intention permanently to bring cohabitation to an end (animus deserendi), together with absence of the deserted spouse’s consent and absence of reasonable cause for the separation, as explained in Lachman Utamchand Kirpalani v. Meena and Savitri Pandey v. Prem Chandra Pandey.

Desertion is not synonymous with mere physical separation; it is a withdrawal from matrimonial obligations and may be established by inference from the parties’ conduct and surrounding circumstances.

The Court also relied on Naveen Kohli v. Neelu Kohli for the principle that prolonged separation may demonstrate that a marriage has broken down beyond repair, and on Shilpa Sailesh v. Varun Sreenivasan as instructive on the significance of prolonged separation, although the decree was not granted under Article 142 of the Constitution.

The fact of separation was undisputed: the parties had lived apart since 15 December 2005 and had never resumed cohabitation.

Although the respondent stated that she remained willing to discharge her marital obligations, the Court held that this assertion could not prevail over her conduct. The appellant, accompanied by Ram Prakash, had gone to bring her back to the matrimonial home, but she refused to return without establishing any reasonable cause for doing so.

This conduct, viewed alongside the continuous separation and failure of all reconciliation efforts, established both the factum of separation and the requisite intention to terminate matrimonial cohabitation.

The High Court therefore erred in treating the respondent’s verbal assertion as sufficient to negate animus deserendi.

The Court did not disturb the findings that cruelty had not been proved, but held that desertion independently entitled the appellant to divorce.

Given the parties’ prolonged separation, absence of children, and failed attempts at reconciliation, continuation of the legal marital tie would not serve the ends of justice.

The marriage solemnized on 23 June 2003 was dissolved by a decree of divorce on the ground of desertion; the findings rejecting cruelty were left undisturbed.

The appellant was directed to pay the respondent ₹7,00,000 as permanent alimony by depositing the amount before the Trial Court within three months, failing which it would carry interest at 9% per annum and be recoverable through execution.

No order as to costs was made.