In Bijendra v. Rekha, Civil Appeal No. 10249 of 2014, 2026 INSC 939 (decided 2 September 2026), a Bench of Justice Prashant Kumar Mishra and Justice Shree Chandrashekhar allowed a husband's appeal and dissolved a marriage on the ground of desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955. The parties had married in June 2003; the wife left the matrimonial home in November 2005 and declined to return; there had been no cohabitation since. The trial court had found desertion proved yet dismissed the petition, and the High Court denied the divorce altogether. The Supreme Court corrected both, coupling the decree with permanent alimony of Rs. 7,00,000. The judgment restates the classical two-element test of desertion and illustrates the Court's current approach to long-dead marriages.
The litigation history
The marriage was solemnised on 23 June 2003. On 30 November 2005 the respondent-wife left the matrimonial home, and on 15 December 2005 she refused to return. There were no children, and the separation continued unbroken thereafter. The husband petitioned for divorce on desertion and cruelty. The trial court found desertion proved — and nonetheless dismissed the petition. The High Court, on appeal, denied divorce on both grounds. By the time the matter reached final hearing in the Supreme Court, the parties had lived apart for over twenty years.
The test the Court applied
"Desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause — requiring proof of the factum of separation and animus deserendi."
The Bench found both elements established: the physical separation dated from November-December 2005, and the refusal to resume cohabitation over the following two decades supplied the animus. Neither consent by the husband nor conduct on his part furnishing reasonable cause was found. On that record, the statutory ground under Section 13(1)(ib) stood proved, and the trial court's self-contradictory disposal — finding desertion yet refusing relief — could not stand.
The elements of desertion at a glance
| Element | Borne by | What satisfies it |
|---|---|---|
| Factum of separation | Petitioner | Physical withdrawal from cohabitation — here, leaving the matrimonial home in November 2005 |
| Animus deserendi | Petitioner | Intention to end cohabitation permanently — inferred from refusal to return and decades of estrangement |
| Absence of consent | Petitioner | The deserted spouse did not agree to live separately |
| Absence of reasonable cause | Petitioner | No conduct by the deserted spouse justifying the withdrawal |
| Statutory period | Petitioner | Continuous desertion for at least two years immediately before the petition |
Alimony as the counterweight
The decree of dissolution came with a direction to the appellant-husband to pay Rs. 7,00,000 as permanent alimony within three months. The pairing is deliberate and typical of the Court's modern matrimonial dispositions: dissolution recognises the reality that the marriage is beyond revival, while permanent alimony under Section 25 HMA ensures the wife does not exit the marriage into financial precarity. Practitioners should treat the two as a package in framing relief — a husband seeking divorce after long separation should come prepared with a realistic alimony proposal, and a wife resisting a doomed petition often serves her interests better by negotiating the quantum than by contesting the decree.
What the decision signals
Frequently Asked Questions
What must be proved for divorce on the ground of desertion?
Two elements on the deserting spouse's side — the factum of separation and the animus deserendi, the intention to bring cohabitation permanently to an end — and two on the deserted spouse's side: absence of consent to the separation and absence of conduct giving reasonable cause to leave. The desertion must subsist for a continuous period of at least two years immediately preceding the petition.
How is intention to desert proved?
By conduct: refusal to return despite efforts and mediation, absence of any step toward resuming cohabitation, and the length of separation itself. In this case the wife left in November 2005, refused to return the following month, and the parties never cohabited again — a record from which the intention to forsake the marriage was inferred.
Why did the Supreme Court award alimony while granting the husband's petition?
Permanent alimony under Section 25 HMA is independent of which spouse obtains the decree. Courts routinely balance dissolution with financial protection for the wife, and the Rs. 7,00,000 award payable within three months reflects that settled practice.
Does long separation by itself entitle a spouse to divorce?
Long separation is not a statutory ground by itself, but it is powerful evidence of desertion where the other elements exist, and the Supreme Court has increasingly declined to keep legally intact marriages that have been dead in fact for decades.