When a marriage has been reduced to nothing more than a legal formality for over two decades, does the law force the parties to remain tied to it? In Bijendra v. Rekha, the Supreme Court answered this question by granting a divorce on the ground of desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955, reversing the High Court’s finding and awarding permanent alimony to the wife.
Background
Bijendra and Rekha were married on 23.06.2003. The husband alleged that the marriage was troubled by cruelty—including denial of sexual relations and abusive behaviour—and that his wife left for her parental home on 30.11.2005. When he went to bring her back on 15.12.2005, she refused to resume cohabitation. No children were born of the marriage, and the couple has lived apart ever since.
Here’s how the case unfolded:
The Trial Court examined the cruelty allegations and found them not satisfactorily proved. It did accept that the respondent had been living separately since 15.12.2005, but held that mere separation, by itself, did not entitle the appellant to a divorce, and dismissed his petition. On appeal, the High Court agreed that neither cruelty nor desertion had been established. It found the witness testimony on cruelty unreliable, and reasoned that physical separation alone does not amount to legal desertion unless there is also proof of animus deserendi—the deliberate intention to abandon the marriage. The matter then reached the Supreme Court, where a mediation attempt during the pendency of the appeal failed on 28th April 2014, leaving the Court to decide the appeal on merits.
What the Court Had to Decide
The core legal issue before the Supreme Court was narrow but significant: had the essential ingredients of desertion under Section 13(1)(ib) of the Hindu Marriage Act actually been established, given that it was undisputed the couple had lived separately since December 2005? The High Court had said no. The Supreme Court disagreed.
The Court’s Reasoning: Separation Plus Intent
To understand the Court’s reasoning, it helps to know what “desertion” actually means in matrimonial law. It isn’t simply about living in different houses. Drawing on its earlier decision in Savitri Pandey v. Prem Chandra Pandey, the Court reiterated that desertion has specific legal ingredients: there must be the factum of separation (the fact that the couple is actually living apart), combined with animus deserendi—an intention on the part of the deserting spouse to permanently end the marital relationship. Crucially, the case must also show that the deserted spouse did not consent to this separation and gave no reasonable cause for the other spouse to leave.
The High Court had accepted that the couple was separated, but concluded there was no proof that the respondent intended to abandon the marriage. The Supreme Court found this reasoning flawed. It pointed to a specific piece of evidence: when the appellant went, accompanied by a witness named Ram Prakash (AW-4), to bring his wife back on 15.12.2005, she refused to accompany him. The Court held that this refusal—despite her later claims of being ready to fulfil her marital obligations—demonstrated that she had actively chosen to walk away from the marriage without any reasonable cause. In the Court’s words, “desertion is not the withdrawal from a place but from a state of things”—meaning it is about abandoning the marital relationship itself, not merely a physical location.
The Court also drew on two other precedents to support its approach. In Naveen Kohli v. Neelu Kohli, the Court had earlier discussed the futility of forcing spouses to remain in a marriage that has become unworkable after prolonged separation. And in Shilpa Sailesh v. Varun Sreenivasan, the Court had treated prolonged separation as indicative of an irretrievable breakdown of marriage—though it clarified that the present case was not being decided using the Article 142 power that allows the Supreme Court to grant divorce directly on the ground of irretrievable breakdown. Here, the decision rested squarely on the statutory ground of desertion.
The Holding: Divorce Granted, Alimony Ordered
The Supreme Court set aside the High Court’s finding that desertion was not established, holding instead that the respondent-wife had, in fact, abandoned the matrimonial relationship without reasonable cause. The concurrent finding of the Trial Court and High Court that cruelty was not proved was left undisturbed—the husband did not succeed on that ground, only on desertion.
As a result, the Court granted a decree of divorce dissolving the marriage under Section 13(1)(ib) of the Hindu Marriage Act. At the same time, recognising the respondent’s position, the Court directed the appellant to pay her Rs. 7,00,000 as permanent alimony within three months. Should he fail to pay within that period, the amount would carry 9% interest per annum until paid.
Why This Case Matters
This judgment is a useful illustration of how Indian courts apply the two-part test for desertion—separation plus intent—in practice. It shows that a spouse’s conduct at a decisive moment, such as refusing to return when specifically approached to resume cohabitation, can itself be strong evidence of the intention to desert, even without extensive independent proof of hostile intent. The case also reaffirms that the ground of desertion under Section 13(1)(ib) remains a distinct and viable route to divorce, separate from the Supreme Court’s Article 142 power to dissolve marriages on the broader ground of irretrievable breakdown. For a couple that had already been separated for roughly two decades by the time the appeal was decided, the judgment finally brought legal closure, while ensuring the wife received financial provision through permanent alimony.
Frequently Asked Questions
What is “animus deserendi” in divorce law?
It refers to the deliberate intention of a spouse to permanently abandon the marital relationship. Under Section 13(1)(ib) of the Hindu Marriage Act, proving desertion requires both the fact of separation and this intent, along with the absence of consent or reasonable cause on the part of the deserted spouse.
Did the Supreme Court find the wife guilty of cruelty?
No. The Court left undisturbed the concurrent findings of the Trial Court and High Court that the cruelty allegations—including denial of sexual relations and abusive behaviour—were not satisfactorily proved. The divorce was granted solely on the ground of desertion.
How much alimony was awarded, and on what terms?
The Supreme Court directed the husband to pay Rs. 7,00,000 as permanent alimony to the wife within three months. If he fails to pay within that period, the amount attracts 9% interest per annum until payment is made.
Was this divorce granted under Article 142 for irretrievable breakdown of marriage?
No. Although the Court referred to precedents discussing irretrievable breakdown and the futility of preserving unworkable marriages, it clarified that this case was decided on the specific statutory ground of desertion under Section 13(1)(ib), not through the Article 142 power.
This summary was drafted with AI assistance from the official Supreme Court judgment (read the original PDF here). It is provided for informational purposes only and is not legal advice. Please verify details against the original judgment before relying on this post.
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