DEBANANDA TAMULI VS SMTI KAKUMONI KATAKY

DEBANANDA TAMULI VS SMTI KAKUMONI KATAKY

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 1339 OF 2022

[@ SLP(C) No.22667 of 2019]

DEBANANDA TAMULI …… APPELLANT

v.

SMTI KAKUMONI KATAKY …… RESPONDENT

J U D G M E N T

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

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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.

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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 @ Mota1

 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.

1 (1964) 4 SCR 331

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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 Gupta2

. 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 not exercise its jurisdiction under

Article 142 of the Constitution of India for dissolving the marriage.

She urged that issue whether such a power can be exercised under

Article 142 to dissolve a marriage on account of a long separation

has been referred to the consideration of the Constitution Bench.

6. The learned counsel for the appellant urged that if this Court

is not satisfied that grounds of divorce as pleaded by the appellant

are made out, this is a fit case to put an end to the prolonged agony

of the parties by dissolving the marriage by exercising the plenary

powers of this Court under Article 142 of the Constitution.

2 (2013) 9 SCC 1

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7. We have given careful consideration to her submissions.

Firstly, we deal with the issue of desertion. The learned counsel

appearing for the appellant relied upon the decision of this Court in

the case of Lachman Utamchand Kirpalani (supra) which has

been consistently followed in several decisions of this Court. The

law consistently laid down by this Court is that desertion means the

intentional abandonment of one spouse by the other without the

consent of the other and without a reasonable cause. The deserted

spouse must prove that there is a factum of separation and there is

an intention on the part of deserting spouse to bring the

cohabitation to a permanent end. In other words, there should be

animus deserendi on the part of the deserting spouse. There must

be an absence of consent on the part of the deserted spouse and

the conduct of the deserted spouse should not give a reasonable

cause to the deserting spouse to leave the matrimonial home. The

view taken by this Court has been incorporated in the Explanation

added to sub-section (1) of Section 13 by Act No.68 of 1976. The

said Explanation reads thus:

“13. Divorce.— (1) …………

3 [Explanation.—In this sub-section, the

expression “desertion” means the desertion

of the petitioner by the other party to the

_____________

3 Substituted by Act 68 of 1976

(w e f 27-05-1976)

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 marriage without reasonable cause and

 without the consent or against the wish of

such party, and includes the wilful neglect of

the petitioner by the other party to the

marriage, and its grammatical variations and

cognate expressions shall be construed

accordingly.]”

8. The reasons for a dispute between husband and wife are

always very complex. Every matrimonial dispute is different from

another. Whether a case of desertion is established or not will

depend on the peculiar facts of each case. It is a matter of drawing

an inference based on the facts brought on record by way of

evidence.

9. Now, coming to the facts of the case, there is no dispute that

the marriage between the parties was solemnized on 17th June

2009 and that they stayed together only till 30th June 2009. The

petition for divorce was filed on 9th September 2011. As per clause

(ib) of sub-section (1) of Section 13 of HM Act, the desertion must

be for a continuous period of not less than two years immediately

preceding the institution of the petition. In her affidavit in lieu of

examination-in-chief filed on 24th June 2015, the respondent stated

that after she became aware of the serious illness of the appellant’s

mother, she came to Tezpur on 19th December 2009. She stayed

with her sister-in-law. According to the respondent, on 20th

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December 2009, the appellant told her to leave Tezpur. Therefore,

she left Tezpur. After she was informed about the death of the

appellant’s mother, she came back to Tezpur and visited the

appellant’s house on 21st December 2019, and left on the next day.

In the affidavit in lieu of examination-in-chief, it is not even the case

made out by the respondent that she came to Tezpur intending to

resume the matrimonial relationship.

10. The perusal of the respondent’s evidence does not disclose

any effort made by her to resume the matrimonial relationship. She

has not filed a petition for restitution of conjugal rights. As can be

seen from the evidence on record, the appellant is carrying on

business at Tezpur. The respondent is working as a Lecturer in

University Law College at Gauhati. There is no dispute that from 1st

July 2009 till date, they are staying separately.

11. Merely because on account of the death of the appellant’s

mother, the respondent visited her matrimonial home in December

2009 and stayed there only for one day, it cannot be said that there

was a resumption of cohabitation. She has not stated that she

came to her matrimonial home on 21st December 2009 with the

intention to resume cohabitation. The intention on the part of the

respondent to resume cohabitation is not established. Thus, in the

facts of the case, the factum of separation has been proved. From

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the evidence on record, an inference can be drawn that there was

animus deserendi on the part of the respondent. She has not

pleaded and established any reasonable cause for remaining away

from her matrimonial home.

12. Thus, in our considered view, the ground of desertion under

clause (ib) of sub-section (1) of Section 13 of HM Act has been

made out as the desertion for a continuous period of more than two

years before the institution of the petition was established in the

facts of the case. 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 on the issue of cruelty.

13. Earlier, when this Court made an effort for bringing about an

amicable settlement, the appellant had offered to pay a lump sum

amount of Rs.10,00,000/- (Rupees ten lakhs) to the respondent. In

the facts of the case, we propose to direct the appellant to pay a

sum of Rs.15,00,000/- (Rupees fifteen lakhs) to the respondent.

14. Hence, the impugned judgments are set aside. The Civil

Appeal is allowed in part. The marriage solemnized between the

parties on 17th June 2009 shall stand dissolved by a decree of

divorce under clause (ib) of sub-section (1) of Section 13 of the

Hindu Marriage Act, 1955.

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15. We direct the appellant-husband to deposit a sum of

Rs.15,00,000/- (Rupees fifteen lakh only) in this Court within a

period of 8 weeks from today.

16. It will be open to the respondent to withdraw the said amount

of Rs.15,00,000/- (Rupees fifteen lakh). It will also be open to her

to withdraw a sum of Rs.50,000/- (Rupees fifty thousand) already

deposited by the appellant.

17. In the event, the amounts deposited by the appellant in this

Court are not withdrawn by the respondent within a period of two

months from the date on which the sum of Rs.15,00,000/- (Rupees

fifteen lakh) is deposited, the Registry shall place the appeal before

this Court for issuing necessary directions.

18. All the pending applications, if any, also stand disposed of.

There shall be no orders as to costs.

…………..…………………J

(AJAY RASTOGI)

…………..…………………J

(ABHAY S. OKA)

New Delhi;

February 15, 2022. 

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