A division bench of Delhi High Court held as follows,
From Paras 19 and 20,
19. With regard to Section 13(1) (ib) of the Hindu Marriage Act, 1955, the pertinent observations of the Hon’ble Supreme Court in Bipin Chandra Jaisinghbhai Shah Vs. Prabhavati 1956 SCC OnLine SC 15 are as under:-
“Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.”
20. The Hon’ble Supreme Court in Bipinchandra Jaisinghbhai Shah(Supra) has further observed that once it is found that one of the spouses has been in desertion, the presumption is that the desertion has continued and that is not necessary for the deserted spouse actually to take steps to bring the deserting spouse back to the matrimonial home.
Finally in Paras 23 and 24,
23. Applying the provisions of Section 13(ib) of the Act, we find that merely within two months of marriage between the parties, the respondent-wife left the matrimonial home. Neither she made any complaint against the appellant nor did she file petition under Section 9 of the Hindu Marriage Act, 1955 seeking Restitution of Conjugal Rights. No doubt, even appellant has not been able to show before the learned Family Court and even in this Court that he had made any concrete efforts to bring back his wife to the matrimonial home. However, when he approached the court seeking divorce, despite service through publication, the respondent did not appear before the learned Family Court to contest the allegations made by the appellant. The respondent has even abstained herself from appearing before this Court despite service through the SHO concerned. Relevantly, since the marriage in the year 2015 till the year 2023, the respondent has not made any effort to join company of appellant-husband. There is no doubt that respondent has quietly chosen to stay apart from appellant and broken the bond of marriage, though not legally but otherwise.
24. In the light of afore-noted facts and circumstances of the present case, this Court is of the considered opinion that respondent has wilfully deserted the appellant and so, appellant is entitled to get benefit of provision of Section 13(1) (ib) of the Hindu Marriage Act, 1955. The marriage between the parties is thus, dissolved and a decree of divorce is granted. Decree sheet be prepared accordingly.
Index of Divorce judgments is here.
