Patna High Court
Dudheshwar SharmaversusKumari Punam
- Decided
- Disposal
- DISPOSED
Holding
The appellate court held that the respondent had deserted the appellant for more than two years, satisfying the ground of desertion, and set aside the trial court’s dismissal, granting a decree of divorce.
Summary
The husband married the respondent on 31 May 1985 and the wife left the matrimonial home in June 2000, thereafter living separately for over 25 years. The husband filed a petition for divorce on 29 July 2019 on the ground of desertion under Section 13(1)(ib) of the Hindu Marriage Act. The trial court dismissed the suit ex‑parte, questioning why the husband had not first filed a suit for restitution of conjugal rights. On appeal, the High Court held that desertion requires intentional abandonment for at least two years, which was satisfied, and that the trial court’s requirement of a restitution suit was erroneous. The appeal was allowed, the dismissal set aside, and a decree of divorce was granted.
Issues considered
- Whether the respondent’s abandonment constitutes desertion under Section 13(1)(ib) of the Hindu Marriage Act
- Whether the trial court erred in insisting on a suit for restitution of conjugal rights before granting divorce on desertion
- Whether the ex‑parte dismissal was proper given the respondent’s non‑appearance
Legislation cited
- Hindu Marriage Act, 1955 — s. 13(1)(ib)
Subjects
- desertion
- divorce
- Hindu Marriage Act
- restitution of conjugal rights
- ex‑parte dismissal
- appellate jurisdiction
- family law
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.560 of 2023
======================================================
Dudheshwar Sharma Son of Late Benkatraman Sharma @ Benkat Sharma
Resident of Village- Ganghara, P.S.- Shahpur, District- Patna.
... ... Appellant/s
Versus
Kumari Punam Wife of Dudheshwar Sharma, Daughter of Late Madan
Kishore Mishra At present resident of Village- Banni, P.S.- Nagara, District-
Saran at Chapra.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mrs. Nivedita Nirvikar, Sr. Advocate
Mrs. Shashi Priya, Advocate
Mr. Pramod Mishra, Advocate
For the Respondent/s : Mr. Arun Kumar Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
20 17-03-2026 The present appeal is directed against the judgment
and decree of dismissal dated 17.07.2023 passed by the learned
Additional Principal Judge, Family Court, Patna in Matrimonial
(Divorce) Case No.951 of 2019.
2. Briefly stated, the case of the appellant, is that his
marriage was solemnized with one Km. Poonam, the respondent
herein, on 31.05.1985 according to Hindu rites and customs.
3. After marriage, the opposite party came to her
matrimonial home and initially lived together for about a month.
At the initial stage of marriage, the relationship between the
parties was very cordial. After one month, the opposite party
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went back to her paternal home in connection with a traditional
custom named “Bidai”. Thereafter, she started to deny to come
back to her matrimonial home. The petitioner used to visit on
some occasions to his matrimonial home, during the said period,
the opposite party gave birth to one female child and another
male child, who were on the date of filing of the plaint, aged
about 30 years and 27 years respectively.
4. After the birth of children, the opposite party
started to neglect her conjugal life with the petitioner. Since, the
petitioner was posted as a Constable of Police at different places
and due to the nature of job, it was not possible for her to keep
the opposite party at her place of posting. However, when he
was in posted in Bokaro, he took the opposite party to her place
of posting but she also left Bokaro after about one month of her
arrival. Subsequently, the petitioner came to understand that the
opposite party did not want to lead marital life with the
petitioner.
5. The opposite party for the last time came to the
house of the petitioner in the month of June, 2000 and after 08
days, she permanently left her matrimonial home. It is alleged
that the opposite party willfully and voluntarily deserted the
petitioner. The petitioner also alleged that she was subjected to
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cruelty by her wife. She used to assault her physically at times.
6. It is found from the record that the notice of the
above-named matrimonial suit was duly served upon the
respondents, but she did not come forward to contest the case.
Accordingly, the case was her ex-parte and dismissed without
cost.
7. The petitioner/husband has approached this Court
in appeal against the impugned judgment and order of dismissal.
8. It is pertinent to mention at the outset that Section
13 of the Hindu Marriage Act, states as follows:-
“(1) Any marriage solemnized, whether
before or after the commencement of this Act,
may, on a petition presented by either the husband
or the wife, be dissolved by a decree of divorce on
the ground that the other party--
(i) ……………..
(ia)………………
(ib) has deserted the petitioner for a
continuous period of not less than two years
immediately preceding the presentation of the
petition”
9. The petition for divorce was filed on 29.07.2019.
10. The case of the appellant is that the respondent
deserted her since 15.06.2000, inspite of his repeated attempt,
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the respondent refused to lead marital life with the appellant and
permanently deserted her.
11. The learned Trial Judge disbelieved the story of
desertion raising a question as to why the appellant previously
did not file a suit for restitution of conjugal rights.
12. The term ‘desertion’ in relation to matrimonial
dispute can be defined as the intentional abandonment of one
spouse by the other without reasonable cause or consent. Under
the Hindu Marriage Act, these abandonment must last for a
continuous period of at-least two years immediately preceding
the filing of the petition.
13. In Debananda Tamuli V. Kakumoni Kataky,
reported in (2022) 5 SCC 459, the Hon’ble Supreme Court
explained the term desertion in the following words:-
“7. ………. 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
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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.
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.”
14. It appears from the Lower Court Records as well
as Paragraph No.3 of the impugned judgment that notice of
Matrimonial (Divorce) Case No.951 of 2019 was sent to the
respondent by post and she received the notice of the suit, in-
spite of receiving the notice of the suit, she had chosen not to
appear and contest the suit for divorce, which was prayed for on
the ground of desertion. It is of-course true that relationship
between husband and wife is a very complex relation and it is
one of the toughest act for the judiciary to come to a conclusive
finding on due adjudication of the dispute between the parties.
However, the fact remains that the appellant specifically pleaded
that the respondent deserted her since 15.06.2000. The said fact
was not denied by the respondent.
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15. The learned Trial Judge was absolutely wrong in
his approached that in order to get a decree of divorce on the
ground of desertion, the appellant/husband must prove his
intention to stay with his wife by filing a suit for restitution of
conjugal rights.
16. In the instant appeal also, notice was served upon
the respondent by Dasti service and the son of the respondent,
who resides with her, received the said notice. However, the
respondent did not appear before this Court to contest the
appeal.
17. Thus, continuous, long and uninterrupted
separation between the husband and wife since 15.06.2000
clearly proves that the respondent does not have any intention to
stay with her husband and continue with normal marital life.
The respondent has abandoned the appellant permanently and
had no intention to establish his marital life. They are living
separately for last 25 years.
18. The learned Trial Judge failed to consider such
aspect of the matter, during trial of the case.
19. For the reasons stated above, we have no other
alternative but to hold that the learned Trial Judge was wrong in
his approach in deciding the case and finally passing an order of
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dismissal of the suit.
20. The judgment and decree of dismissal dated
17.07.2023 passed by the learned Additional Principal Judge,
Family Court, Patna in Matrimonial (Divorce) Case No.951 of
2019 is set aside.
21. The appeal be and the same is allowed.
22. Marriage between the appellant and the
respondent is dissolved by a decree of divorce.
23. Decree be drawn, accordingly.
(Bibek Chaudhuri, J)
( Chandra Shekhar Jha, J)
mdrashid/-
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