Read Time: 07 minutes

While remarking that the reasons for a dispute between husband and wife are always very complex and every matrimonial dispute is different from another, a division judge bench of the Supreme Court on Tuesday held,

"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."

Relying on its decision in Lachman Utamchand Kirpalani v. Meena @ Mota, a bench of Justices Ajay Rastogi and Abhay S Oka said that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause.

The bench went on to say that 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, held the bench.

"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....", said the top court.

These observations were made by the Court while hearing appeal arising from a matrimonial dispute between the appellant-husband Debananda Tamuli and the respondent-wife Kakumoni Kataky.

A petition filed by Debananda 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 was dismissed by the District Court.

Later, an appeal preferred by him against the decree of the District Court was also dismissed by the Gauhati High Court.

The marriage between the parties was solemnized on June 17, 2009 and they stayed together only till June 30, 2009. Kakumoni stated in her affidavit that after she became aware of the serious illness of her mother-in-law, she came to Tezpur on December 19, 2009. She added that the nest day, her husband told her to leave Tezpur. After she was informed about her mother-in-law's death, she came back to Tezpur and visited her husband's house on December 21, 2019, and left on the next day.

The Court noted that her affidavit no case was made out by Kakumoni that she came to Tezpur intending to resume the matrimonial relationship and no evidence disclosed 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....", noted the bench.

The bench found no instances to show any resumption of cohabitation. Thus, an inference was drawn that there was animus deserendi on the part of Kakumoni.

It was thus held that a case for desertion was made out but no case for cruelty could be established.

While allowing the appeal and setting aside the impugned judgments, with a view to bring about an amicable settlement, the court directed Debananda to pay a sum of Rs.15,00,000/- to his wife.

Cause Title: DEBANANDA TAMULI v. SMTI KAKUMONI KATAKY