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Synopsis

The Supreme Court has on July 8, 2024 said that a divorce petition can be presented on the ground of desertion if there has been no restitution of conjugal rights between the parties to the marriage for a period of one year and more after passing such a decree. 

A bench of Justices Abhay S Oka and Ujjal Bhuyan allowed a petition filed by a man against the high court's order which set aside a decree of divorce granted on the ground of desertion.

"This is a case of a complete breakdown of marriage for the last 16 years and more," the court noted.

It also found that the desertion of the appellant at least from 2008 till the date of filing the divorce petition in 2013 continued without any reasonable cause.   

"Therefore, a decree for divorce on the ground of desertion under Section 13(1)(ib) ought to have been passed. Thus, in our view, the High Court ought to have confirmed the decree of divorce on the ground of desertion," the bench said.

The marriage between the parties was solemnised on March 25, 1999. Two children were born from the marriage. Both of them are adults, the court noted.   

The matrimonial dispute led to multiple litigations between the couple. The discord started in 2006, which led to the appellant filing a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights.    

The man filed a plea for restitution of conjugal rights on December 17, 2008.    

By the judgment and decree of May 15, 2013, the Additional Civil Judge (Sr Division), Barnala, passed a decree of restitution of conjugal rights under which the respondent-wife was directed to join the appellant's company within three months.  

As the respondent-wife did not abide by the decree for restitution of conjugal rights, on August 23, 2013, the appellant filed a petition under Section 13 of the Hindu Marriage Act before the Family Court at Barnala seeking a decree of divorce on the grounds of cruelty and desertion. 

The wife preferred an appeal before the High Court of Punjab and Haryana, which was dismissed by the judgment on February 19, 2015, and the decree for restitution of conjugal rights was confirmed.  

On August 1, 2016, the judge of the Family Court at Barnala allowed the divorce petition filed by the appellant-husband and dissolved the marriage.     

The respondent-wife challenged the divorce decree by preferring an appeal before the Punjab and Haryana High Court, which by its impugned judgment of October 4, 2019, set aside the divorce decree.

The high court held that the ground of desertion was not made out as the appellant had continuously neglected his duties as a husband and considering his conduct, the respondent had no choice but to leave him and stay at her parental home. 

The apex court's bench, however, overturned the decision. It said, "In our view, it is not possible to sustain the judgment of the High Court on the issue of desertion".     

The court also found that nothing was brought on record by the respondent-wife to show that after February 19, 2015, when the decree for restitution of conjugal rights was confirmed by the High Court, any effort was made by her to resume cohabitation. 

"We must note that between August 1, 2016, when a decree of divorce was passed, and October 4, 2019, when the decree was set aside, no efforts were made by the respondent to resume cohabitation. She had not made out any such case. Moreover, there is no material on record to show that after the decree of restitution of conjugal rights was passed, the respondent showed even an inclination to resume cohabitation with the appellant," the bench said.

Referring to Section 13(1A)(ii) of the HM Act, the bench pointed out that it is provided that a divorce petition can be presented on the ground that there has been no restitution of conjugal rights between the parties to the marriage for a period of one year and more after passing the decree for restitution of conjugal rights.  

The court also said the appellant has offered to pay the respondent-wife a lump sum alimony of Rs 30 lakhs, which is reasonable and can be accepted. "Though we are passing a decree of divorce on the ground of desertion, we will have to clarify that the decree shall come into operation after a sum of Rs 30 lakhs is paid to the respondent-wife," the bench said.