ADHYATMA BHATIAR ALWAR versus ADHYATMA BHATIAR SRI DEVI

Citation: [2001] SUPP. 5 S.C.R. 130 · Decided: 06-11-2001 · Supreme Court of India · Bench: D.P. MOHAPATRA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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ADHYATMA BHATIAR ALWAR 
v. 
ADHYATMA BHATIAR SRI DEVI 
NOVEMBER 6, 2001 
[D.P. MOHAPATRA AND DORAISWAMY RAJU, JJ.] 
Hindu Law: 
Hindu Marriage Act, 1955: Section 13(l)(ib). 
Desertion-Ingredients of-Held: (i) factum of sparation; (ii) animus 
deserendi and (iii) these two essential ingredients should continue during the 
entire statutory period of two years. 
Desertion-Deserted spouse-Essential conditions-Held; (i) absence 
of consent and (ii) absence of conduct of the other spouse. 
Desertion-Burden of proof-Held: Is on the petitioner for divorce of 
proving the essential conditions in the two spouses and their continuance 
throughout the statutory period of two years. 
Words and Phrases : 
"Desertion"-Meaning of-In the context of S.13(l)(ib) of the Hindu 
Marriage Act, 1955. 
Doctrines : 
Doctrine of animus deserendi-Explained. 
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The respondent-wife, after the birth of her child, continued to stay in 
her parents' house and refused to return to the matrimonial house in spite 
of repeated attempts by the appellant-husband. The respondent was insist-
ent that the appellant should live separately from his parents in a separate 
house since her father-in-law used to make indecent advances towards her. 
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The appellant-husband, therefore, filed a petition for a decree or divorce 
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ADHYATMA BHATIAR AL WAR v. ADHY ATMA BHATIAR SRIDEVI 
131 
under Sedion 13(l)(ib) of the Hindu Marriage Act, 1955 on the ground of 
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desertion for a continuous period of more than two years. During the 
pendency of the petition the appellant's father died. The trial court granted 
a decree for judicial separation under Section 10 of the Act instead of a 
decree for divorce. But the High Court set aside the judgment and decree 
of the trial court. Hence this appeal. 
Allowing the appeals, the Court 
HELD : 1.1. 'Desertion' in the context of matrimonial law represent 
a legal conception. The essential ingredients of this offence in order that it 
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may finish a ground for relief are : 
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(a). The factum of separation; 
(b) The intention to bring cohabitation permanendy to an end-
animus deserndi; 
( c ). The element of permanence, which is a prime condition, requires 
that both these essential ingredients should continue during the entire 
statutory period. [135-A-C] 
1.2. 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. The petitioner for divorce 
bears the burden of proving those elements in the two spouses respectively 
and their continuance throughout the statutory period of two years and 
laid down in Section 13(1)(ib) of the Hindu Marriage Act, 1955. [135-E-F] 
Jaisinghbhai Shah v. Prabhawati, [1956] SCR 838; l.achman Utamchand 
Kirpalani v. Meena alias Mota, [1964] 4 SCR 331, Smt. Rohini Kumari v. 
Narendra Singh, (1972] 1 SCC 1, Sanat Kumar Agarwal v. Nandini Agarwal, 
[1990] 1 SCC 475 and Chetan Dass v. Kam/a Devi, [2001] 4 SCC 250, 
referred to. 
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2.1. The cumulative effects of the circumstances and the conduct of 
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SUPREME COURT REPORTS 
[2001] SUPP. 5 S.C.R. 
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the respondent are that she had given expression of animus deserendi. Thus, 
the two ingredients of the matrimonial offence of desertion i.e. separation 
in fact and animus deserendi have been established by the appellant. 
[141·B·C] 
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2.2. The failure on the part of the wife to substantiate a serious 
allegation of infamous conduct of indecent advances said to have been 
made to her by the father in-law, taken together with the absence and 
omission from her side to demonstrate her readiness and willingness to 
discharge her continuing obligation to return to the matrimonial home, 
establish sufficiently the animus deserendi necessary to prove legal deser· 
tion as required under Section 13(1)(ib) of the Act. The conduct of the wife 
seems to be more indicative of firm determination not to return to the 
martial home and discharge the obligations attendant thereto. 
[141-G-H; 142-A] 
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6534-6536 c,f 
1995. 
From the Judgment and Order 

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