Case: DEBANANDA TAMULI Vs. SMTI KAKUMONI KATAKY

because husband and wife are staying separately, an inference regarding desertion on the wifes 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. 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) ………… [Substituted by Act 68 of 1976 (w e f 27-05-1976)] [Explanation.—In this sub-section, the expression desertion means the desertion of the petitioner by the other party to the 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 appellants mother, she came to Tezpur on 19th December 2009. She stayed with her sister-in-law. According to the respondent, on 20th December 2009, the appellant told her to leave Tezpur. Therefore, she left Tezpur. After she was informed about the death of the appellants mother, she came back to Tezpur and visited the appellants 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 respondents 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 appellants 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 1976.9. 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 appellants mother, she came to Tezpur on 19th December 2009. She stayed with her sister-in-law. According to the respondent, on 20th December 2009, the appellant told her to leave Tezpur. Therefore, she left Tezpur. After she was informed about the death of the appellants mother, she came back to Tezpur and visited the appellants 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 respondents 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 appellants 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 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.