She left after 13 days, visited once for a funeral. The court called it desertion.
The Supreme Court overturned two lower courts and granted divorce, ruling that a brief visit for a family death doesn't restart the clock on desertion.
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The Supreme Court overturned two lower courts and granted divorce, ruling that a brief visit for a family death doesn't restart the clock on desertion.
She packed her bags 13 days after the wedding and never came back. Then one day she showed up—but only because his mother had died. The question for the Supreme Court was whether that single, grim visit counted as a fresh start—or whether the marriage had been over long before the funeral.
The Court ruled that a condolence call is not a reconciliation. It granted the husband a divorce that two lower courts had denied him.
THE PLAY: A brief visit for a family funeral, without any stated intention to resume married life, does not break the continuity of desertion under Section 13(1)(ib) of the Hindu Marriage Act.
Thirteen days, then a funeral, then nothing
The couple married in June 2009 in Tezpur, Assam. Within 13 days, the wife packed all her belongings and left the matrimonial home. The marriage was never consummated.
In December 2009, she returned—but only because his mother had died. She stayed one day. She made no effort to resume married life. She never filed for restitution of conjugal rights (a legal request asking the court to order the other spouse to resume living together).
The husband filed for divorce in 2011, arguing cruelty and desertion under Section 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 (the law that allows a spouse to seek divorce on grounds of cruelty or desertion).
Both the District Court in Tezpur and the Gauhati High Court dismissed his petition. They found no desertion. The husband appealed to the Supreme Court.
What the law means by 'desertion'
The Supreme Court began by clarifying what desertion under Section 13(1)(ib) actually requires. Drawing from its own precedent in Lachman Utamchand Kirpalani v. Meena @ Mota (1964) and Darshan Gupta v. Radhika Gupta (2013), the Court laid out four elements that must be proved:
- Factum of separation — the spouses are physically living apart.
- Animus deserendi — the deserting spouse intends to bring the cohabitation to a permanent end.
- Absence of consent — the deserted spouse did not agree to the separation.
- Absence of reasonable cause — the deserted spouse's own conduct did not give the other spouse a good reason to leave.
Desertion is not about who left the house first. It is about the state of mind behind the departure. A spouse who walks out intending never to return has deserted. A spouse who leaves because of the other's cruelty has not—the law calls that "constructive desertion," where the behaviour of one spouse forces the other to leave.
Why the funeral visit didn't reset the clock
The husband filed his divorce petition on 9th September 2011. The law requires that desertion must have been continuous for at least two years immediately before that date. The wife left in July 2009. The question was whether her one-day visit in December 2009—for the husband's mother's funeral—broke that continuity.
The Court held that it did not. The Supreme Court reasoned that a brief visit on account of a specific event, without any stated intention to resume cohabitation, does not constitute resumption of married life. The Court noted that the wife did not move back in. She did not attempt to restart the relationship. She came, attended the funeral, and left.
The Court also noted that the wife never filed for restitution of conjugal rights—a step that would have shown she wanted the marriage to continue. Her silence on that front, combined with her complete absence after the funeral, made the intention to desert clear. The statutory requirement of continuous desertion for not less than two years preceding the petition was satisfied.
The cruelty ground fails
The husband also argued cruelty under Section 13(1)(ia). The Court rejected this. Leaving the matrimonial home, without more, does not amount to cruelty. The husband had not alleged any specific acts of mental or physical harm. The Court left the cruelty ground undisturbed—meaning it did not accept it, but did not need to overturn it either, since the desertion ground was sufficient.
Divorce granted, but at a price
On 15th February 2022, a bench of Justice Abhay S. Oka and Justice Ajay Rastogi allowed the appeal in part. It set aside the judgments of the District Court and the Gauhati High Court. It granted a decree of divorce under Section 13(1)(ib)—desertion.
Then came the twist. The Court directed the husband to deposit Rs.15 lakhs with the Court within eight weeks, as a one-time settlement to the wife.
The Court used its plenary power under Article 142 of the Constitution (the Supreme Court's power to pass any order necessary to do complete justice) to frame this financial arrangement. The husband had to pay, even though he was the one who proved desertion. The Court did not explain the basis for the amount, but the order was clear: the divorce was granted, and the wife would receive a substantial sum.
Why this matters for practitioners
For family lawyers, this judgment clarifies a recurring ambiguity: what counts as "resumption of cohabitation"? The Court has now said that a short, event-specific visit—especially one driven by obligation rather than reconciliation—does not restart the desertion clock. The key is the intention behind the visit. If the deserting spouse does not express a desire to resume the marriage, the period of separation continues to run.
The judgment also reinforces that the burden of proving desertion rests on the spouse who files for divorce. The four elements must each be established through evidence—not just allegations. And the Court's willingness to use Article 142 to order a financial settlement, even while granting the divorce, shows that the remedy is not one-sided.
The wife left after 13 days. She came back for one day. The marriage was over long before the funeral.