Bijendra v. Rekha | 2026 INSC 939 | September 2, 2026
What the case was about
This appeal called upon the Supreme Court to resolve a marital deadlock. Bijendra and Rekha were married in 2003, but they have not lived together since 15 December 2005. The marriage was not consummated and no children were born. When Bijendra sought a divorce on the ground of desertion, the Trial Court dismissed his petition, and the High Court dismissed his appeal, holding that the essential ingredients of desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955 had not been established (para 14). With the couple locked in prolonged litigation and mediation efforts having failed, the Court had to decide whether nearly twenty years of living apart, capped by a clear refusal to resume cohabitation, legally amounts to desertion. The case also tested whether a spouse must first seek restitution of conjugal rights before invoking desertion as a ground for divorce, and whether the concurrent findings on mental cruelty should be overturned.
The key facts
The parties were married on 23 June 2003. They have lived separately since 15 December 2005, when the respondent refused to resume cohabitation. The marriage was not consummated and no children were born. In 2007, the appellant filed for divorce on grounds of desertion and mental cruelty. The Trial Court dismissed the petition, and the appellant’s appeal under Section 28 of the HMA was also dismissed by the High Court, leading to the present appeal before the Supreme Court.
The questions before the Court
The three questions framing the appeal were:
- Whether the High Court was justified in holding that the essential ingredients constituting desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955 were not established?
- Whether the appellant was required to seek restitution of conjugal rights as a precondition to claiming divorce on the ground of desertion?
- Whether the findings on cruelty recorded by the Trial Court and the High Court should be disturbed?
What the Court decided and why
A bench of Justices Prashant Kumar Mishra and Shree Chandrashekhar partly allowed the appeal, set aside the High Court’s finding on desertion, and dissolved the marriage under Section 13(1)(ib) of the HMA (para 25).
The legal test for desertion
The Court restated the classic test from Savitri Pandey v. Prem Chandra Pandey. For the deserting spouse, desertion requires two essential conditions: (i) the factum of separation, and (ii) the animus deserendi—the intention to bring cohabitation permanently to an end (para 18). Conversely, the deserted spouse must show an absence of consent and an absence of conduct that gave reasonable cause to the other spouse to leave the matrimonial home and form the necessary intention to desert (para 18). The Court emphasized that desertion is not a single act complete in itself, but a continuous course of conduct to be determined from the facts and circumstances of each case. Its proof is always a matter of inference to be drawn from the attending facts and from the purpose revealed by the spouse’s conduct (para 18).
Conduct, not mere assertion, proves intent
Applying this framework, the Court noted that there was no dispute the parties had been residing separately since 15 December 2005 (para 14). The only live question was whether the High Court was justified in finding that the essential ingredients of desertion had not been established (para 14). The High Court appeared to have relied on the respondent’s deposition that she was ready and willing to discharge her marital obligations. The Supreme Court rejected this reasoning, observing that “mere assertion cannot be sufficient when the conduct reflects otherwise” (para 19). The record established that the appellant, accompanied by witness Ram Prakash, had gone to take the respondent back to her matrimonial home, but she refused to accompany them without any reasonable cause. The Court found that this refusal demonstrated that the respondent had actively chosen to desert the company of the appellant (para 19). Measured against the backdrop of continuous separation since 2005, this conduct supplied the necessary inference of an intention to bring cohabitation permanently to an end. The Court accordingly held that the respondent-wife had abandoned the matrimonial relationship and that the appellant had successfully established the ground of desertion (para 23).
Cruelty and alimony
The Court declined to disturb the concurrent findings on mental cruelty recorded by the Trial Court and the High Court. After carefully perusing the evidence on record, it found that no case was made out for interference with those findings (para 23). On remedy, the Court balanced the dissolution with financial security for the respondent, directing the appellant to pay ₹7,00,000 as permanent alimony within three months, to be deposited before the Trial Court; failing payment within that period, the amount would carry interest at 9 per cent per annum (para 25).
No precondition of restitution
The Court also clarified that seeking restitution of conjugal rights is not a precondition for claiming divorce on the ground of desertion. The two remedies are independent of each other. A spouse who has been deserted is entitled to approach the court directly for dissolution without first filing a separate petition for restitution, and the absence of such a petition does not weaken a claim under Section 13(1)(ib).
Why it matters
This judgment clarifies how trial courts should evaluate long-term desertion under the HMA. It establishes that the animus deserendi must be gathered from a spouse’s conduct over time, and that oral assertions of willingness to reconcile carry little weight when they are contradicted by years of refusal to resume cohabitation (para 19). The decision also settles that a petition under Section 13(1)(ib) does not depend on first seeking restitution of conjugal rights, removing a procedural hurdle that is sometimes raised in matrimonial litigation. Additionally, the ruling underscores that where the matrimonial bond has become irretrievably broken due to prolonged separation, refusing dissolution serves no useful purpose. Finally, the award of permanent alimony demonstrates that even where a marriage is dissolved on the ground of desertion, the court can and will secure the economic position of the dependent spouse (para 25). For individuals trapped in marriages that have collapsed in all but name, the judgment reaffirms that the statute provides a meaningful pathway to closure when the factual ingredients are established.