- The Hon’ble Supreme Court (SC or Court),in the case of DEBANANDA TAMULI v SMTI KAKUMONI KATAKY, dissolved a marriage on the ground that a case of desertion under Section 13 of the Hindu Marriage Act, 1955 (HMA or the Act) was made out.
- The appeal arose from the dismissal of petition for divorce on the grounds cruelty and desertion under Section 13 of HMA by the appellant-husband by the Gauhati High Court.
- The matrimonial dispute arose between the parties on the grounds that the respondent consistently refused to consummate the marriage, thereby causing mental agony to the appellant. The Appellant’s petition for divorce failed before the Sessions Court and the HC.
- It was submitted that parties married on 17 June 2019 and on 30 June 2019, the respondent left to her matrimonial home and never returned. The Appellant further claimed the respondent never showed any inclination toreturn to the matrimonial home and that she never had any intention to startcohabiting with the Appellant. Reliance in this regard was placed on the case of Lachman Utamchand Kirpalani v Meena @ Mota.
- It was further submitted that the Respondent returned to the matrimonial home for a day on the death of the Appellant’s mother and the same could not be regarded as resumption of matrimonial relationship.
- The Appellant argued that the earlier Courts grossly erred in their decision by holding that the ground of desertion was not made out and submitted that in view of the irretrievable breakdown of marriage, the SC should exercise its plenary jurisdiction under Article 142 of the Constitution and pass decree of divorce.
- The Counsel for the Respondent submitted that the Appellant did not establish that there was no consummation and urged that even the factum of desertion has not been established. It was submitted that the Respondent did not intend to desert the Appellant and it was the latter who made no efforts to resume cohabitation.
- The Counsel further submitted that merely because husband and wife are stayed separately, aninference regarding desertion on the wife’s part could not have been drawn.
- Analysing the provision pertaining to desertion, the Court remarked that whether a case of desertion is established or not depends on the facts ofeach case and it is a matter of drawing an inference based on the facts broughton record by way of evidence.
- The Court observed that there was no dispute in the instant case since the parties barely cohabited and also observed that no case was made out by the Respondent regarding her intention to resume the matrimonial relationship when she visited the Appellant at the time of the mother’s death.
- The Court noted that there was no effort on the Respondent’s side to resume the matrimonial relationship and also the fact that no petition for restitution of conjugal rights was filed. Visiting matrimonial home for a day cannot be presumed to be a resumption of cohabitation.
- Observing that the ground of desertion under the provisions of Section 13 of HMA were made out as there was desertion for a continuous period of more than two years before the institution of the petition was established, the Court granted the decree of divorce.
- The Court agreed to the findings of the lower courts that there was no cruelty involved.
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