Common Judgment:

K. Lakshman, J.

1. Heard Sri R. Pavan Reddy, learned counsel for the Appellant and Sri N. Krishna Sumanth, learned counsel appearing for the Respondent.

2. Appellant is the husband and Respondent is the wife. Feeling aggrieved and dissatisfied with the common order and decree dated 19.12.2016 in FCOP No. 231 of 2013, FCOP No. 654 of 2013, and MC No. 46 of 2012 passed by the Family Court at Secunderabad, the Appellant-husband preferred the present appeals.

3. The Appellant–husband filed an appeal vide FCA No. 298 of 2017 against the order passed in FCOP No. 231 of 2013 (old O.P. No. 19 of 2012) on the file of learned Senior Civil Judge, Adoni, Kurnool District) under Section 13(1)(ib) of the Hindu Marriage Act, 1955 (hereinafter, “the Act”) against the Respondent–wife seeking dissolution of marriage on the ground of desertion. The said petition was dismissed by the learned Family Court.

4. The Appellant also filed an appeal vide FCA No. 175 of 2017 aggrieved by the order passed in FCOP No. 654 of 2013 filed by the Respondent-wife under Section 9 of the Act, seeking restitution of conjugal rights. The said petition was allowed by the learned Family Court directing the Appellant-husband to lead a marital life with the Respondent-wife within one month from the date of the order. Also, the Respondent-wife and her daughter filed M.C. No. 46 of 2012 under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter, “the CrPC”) seeking maintenance of Rs. 11,500/- per month each.

5. The Appellant–husband and the Respondent–wife got married on 28.02.2008 at Raja Rajeswari Function Hall, Adoni. It was an arranged marriage, performed as per Hindu rites and customs. Out of the wedlock, on 04.12.2009, they were blessed with a daughter named Y. Kharunya.

6. The Appellant-husband in FCOP No. 231 of 2013 sought dissolution of marriage on the ground of desertion contending as follows:

               i. The marriage between the Appellant and the Respondent was performed on 28.02.2008.

               ii. They lived together at Adoni for one week, and thereafter they started their marital life at Tirupati where he was working as Assistant Manager in Union Bank of India, Tirupati branch.

               iii. They lived together happily for a period of one month only as the she was unhappy with his family members. She used to dictate terms at the instance of her parents, who advised her to keep her husband in her clutches so that he severs ties with his family members.

               iv. She abused and threatened him that his family members should not visit their house at Tirupati, whereas her parents used to visit their house often and stayed there for days together.

               v. On one occasion, she along with her parents visited the Bank, where he was working and asked his colleagues to advise him to live as per her whims and fancies, and not work beyond the working hours. His colleagues admonished him in respect of her eccentric behaviour. When he questioned regarding the same, she and her parents quarreled with him.

               vi. Whenever he expressed his desire to visit his mother and sister at Adoni, she bluntly refused to accompany him stating that they were not up to her stature and expressed that she dislikes them.

               vii. The Appellant bore the inhuman behaviour of the Respondent with a hope of change in her attitude, however, to his dismay there was no such change.

               viii. The Appellant further contends that on 07.04.2009, the Respondent left to Hyderabad along with her parents to attend a marriage at Kurnool, and thereafter never returned. Although the Appellant contacted her several times requesting to join his society, she turned a deaf ear.

               ix. In the month of October 2009, when the Appellant visited Adoni to celebrate festival with his family members, the Respondent-wife along with her parents went to Tirupati and took all the household articles and jewellary presented to her at the time of marriage, without informing him. She also took away four gold rings belonging to him which remain in her custody. On his return to Tirupati, he was astonished to know from his house owner that the Respondent and her parents took away the afore-mentioned household articles in the midnight at 1:00 AM. He immediately contacted the Respondent and her parents questioning about the same, to which she replied that she was not interested in him, she had no intention to join his society, and she decided to live with her parents.

               x. Thereafter, the Appellant made several attempts to bring her back. On one occasion, his brother Ramalinga Reddy personally went to the house of the Respondent requesting her to join the Appellant, however she bluntly refused to do so.

               xi. On 08.12.2009, while he was undergoing training at Bangalore, she contacted him and informed that she conceived a girl child. He was shocked by the fact that the Respondent suppressed her pregnancy since 07.04.2009, i.e., the date of desertion. He immediately visited Hyderabad to see his daughter, however, he received hostile treatment from her and her parents.

               xii. Thereafter, in the month of August 2010, he was transferred to Bhopal. At that time also he requested the Respondent to join his society but she refused. Despite his best efforts, the Respondent deserted him for more than two years without any reason. Thus, he lost hope of their reunion.

7. With the aforesaid contentions, the Appellant-husband sought dissolution of marriage on the ground of desertion.

8. On the contrary, the Respondent-wife filed FCOP No. 654 of 2013 seeking restitution of conjugal rights and counter in the aforesaid O.P. No. 231 of 2013 contending as follows:

               i. At the time of marriage, her parents gave an amount of Rs. 10,00,000/- towards dowry, twenty tulas of gold ornaments, Rs. 50,000/- to purchase silver plate to perform Kanyadanam, and incurred an expenditure of Rs. 50,000/- for the purpose of transport.

               ii. At the time of shifting to Tirupati, the Appellant and his relatives demanded household utensils, furniture, etc.; which were provided by her parents to satisfy their demands.

               iii. On one occasion, he took her on his bike to attend a function at his friend’s house. He took her to a lonely place with an evil intention, stating that he was unable to locate his friend’s house, asked her to get down, and went away. She managed to reach the house after a long time with great difficulty, and when she questioned him about the same, he replied that he had every right to behave in the manner he likes.

               iv. He harassed her for an additional dowry of Rs. 20 lakhs. Also, he used to frequently leave the house for days together. Thus, she had to request the neighbours to mediate, and on their intervention, he stayed with her. However, the said dispute continued due to his adamant nature.

               v. His brothers and sister-in-law harassed her demanding additional dowry of Rs. 20 lakhs and encouraged the Appellant to beat her. They claimed that they were highly influential persons and had the support of the entire Police department.

               vi. Later, in the month of June 2008, she got her pregnancy confirmed, however, the Appellant’s brothers and sister9 in-law pressurized her to go for abortion, which she did not agree. He then forcibly took her on bike, in auto and RTC buses to Adoni on kachha road despite having knowledge of her pregnancy. Later, she was taken to Bellary where the parents and sister-in-law of the Appellant were living. She was left there and thus she all alone went to Adoni, and thereafter to Tirupati. The Appellant picked up quarrel with her, threw her on the floor, as a result of which she got stomach pain. The neighbours helped her and took her to the hospital, where she underwent abortion.

               vii. She did not inform her parents about the harassment. Subsequently, she got pregnant in the month of February 2009. The Appellant dropped her at Hyderabad at her parental home on 07.06.2009. Later, she gave birth to a female child on 04.12.2009, and the same was informed to the Appellant and his relatives, neither of them visited to see the child.

               viii. On 15.04.2010, she along with the child went to Tirupati. The Appellant hatched a plan, whereby he made her believe that he got promoted and was transferred to Hyderabad. He requested her parents to keep all the household articles and furniture at their house. Later, he vacated the house at Tirupati and shifted all the household articles to the Respondent’s parental house on 18.04.2010.

               ix. After shifting from Tirupati to Hyderabad, the Appellant frequently changed his SIM card and his whereabouts were not known. He absconded for around one year and nine months i.e. from 01.08.2010 to 26.04.2012. To her surprise, she received summons from the Hon’ble Senior Civil Judge, Adoni, Kurnool District in O.P. No. 19 of 2012, which was filed by the Appellant seeking dissolution of marriage in the month of April 2012, and was later transferred to Family Court, Secunderabad and renumbered as O.P. No. 231 of 2013.

               x. The Respondent submits that she and her daughter are dependent upon her father, who is a BP and diabetic patient, and who also has the responsibility of the marriage of her younger sister. She took shelter at her parental home and does not derive any income as she is not a working woman. The Appellant works as Manager in Union Bank of India, Bhopal and earns more than Rs.50,000/- per month. He has not been taking the responsibility of the Respondent and their daughter. Thus, she filed M.C. No. 46 of 2012 seeking maintenance for herself and her daughter. xi. She has no intention of living away from her husband as she loves him. There is no reasonable cause for filing the divorce petition.

9. With the aforesaid contentions, she sought to dismiss the petition for divorce and allow the petition for restitution of conjugal rights.

10. To prove her case, the Respondent-wife examined herself as P.W.1. She filed Ex. A1 (wedding card), and Ex. A2 (wedding photograph). On the other hand, to prove the ground of desertion, the Appellant-husband examined himself as R.W.1, and his younger brother as R.W.2. He filed Ex. B1 (salary certificate).

11. On consideration of the said evidence, both oral and documentary, vide impugned common order dated 19.12.2016, the Learned Family Court dismissed the petition for divorce filed by the Appellant-husband in FCOP No. 231 of 2013, and allowed the petition for restitution of conjugal rights filed by the Respondentwife in FCOP No. 654 of 2013. Also, the Learned Family Court allowed M.C.No.46 of 2012 by directing the Appellant to pay maintenance of Rs.11,500/- per month each to the Respondent-wife and her minor daughter from the date of the said petition.

12. We have heard Sri R. Pavan Reddy, learned counsel for the Appellant and Sri N. Krishna Sumanth, learned counsel appearing for the Respondent extensively.

13. As discussed supra, the Appellant-husband filed the petition under Section 13(1)(ib) of the Act against the Respondentwife seeking dissolution of marriage on the ground of desertion. Whereas the Respondent-wife filed the petition under Section 9 of the Act seeking restitution of conjugal rights.

14. Perusal of the record would reveal that there is no dispute regarding the marriage dated 28.02.2008 between the parties, which was performed at Adoni. There are specific allegations with regard to desertion made by the Appellanthusband.

15. P.W.1, the Respondent-wife, repeated her averments as mentioned in her pleadings. In her cross-examination, it was elicited that she did not file any documentary proof to show that an amount of Rs. 10 lakhs was given towards dowry by her father. She did not file any receipts showing the purchase of 20 tulas gold items and Rs. 50,000/- worth silver plates. Further, she deposed that it was her second marriage, and she did not remember the date of her 1st marriage and as to when she took divorce. Moreover, it was elicited that she did not make any complaint to the police on the demand of additional dowry of Rs. 20 lakhs by the family members of the Appellant-husband. She deposed that to resolve the said issue, panchayats were held by elders for four times, however she did not mention the same in her pleadings. Furthermore, it was elicited that she did not remember the name of the hospital in which she had an abortion.

16. In respect of the allegation of desertion, she deposed that on 07.04.2009, she along with her parents went from Tirupati to Hyderabad but not with an intention to terminate her relation with the Appellant. With regard to the birth of the female child, she deposed that it was incorrect to state that the Appellant was informed on 08.12.2009, and not on 04.12.2009.

17. Further, in respect of the transfer of the Appellant to Bhopal, it was elicited that she came to know about the same two months after his transfer, but did not join him as she did not know his address. Also, she denied the suggestion that she never went to Tirupati along with the child on 15.04.2010. Moreover, she denied the suggestion that she did not mention in her pleadings about the efforts made by her parents and elders for their reunion.

18. It was further elicited that the Respondent-wife lived in Secunderabad for three years from 2010 to 2013, and thereafter shifted to her parents’ house. She admitted that she filed FCOP No. 654 of 2013, the petition for restitution of conjugal rights subsequently after the filing of OP No. 231 of 2013 and MC No. 46 of 2012.

19. On the contrary, R.W.1, the Appellant herein, repeated his averments as mentioned in his pleadings. In his chief examination, he deposed that since the date of willful desertion, the Respondent-wife has not been residing in a rented house as asserted by her, rather she has been residing in the house situated at Plot No. 27, Sharadanagar, Vanasthalipuram, Hyderabad, which is owned by her parents. Further, he deposed that the Respondent is well-educated and has sufficient property. Moreover, on account of willful desertion, without any justifiable reason, she is not entitled to seek any relief.

20. He further submitted that M.C. No. 46 of 2013 was filed as a counter blast to the divorce petition filed by him under O.P. No. 231 of 2013. Also, the petition for restitution of conjugal rights filed vide O.P. No. 654 of 2013 was an after-thought, filed with an ulterior motive to harass him at a belated stage. He emphasized that the Respondent was not interested to lead a matrimonial life with him and had deserted willfully.

21. He categorically denied allegations as to receiving cash, gold, and silver plate towards dowry, and the demand of additional dowry. Instead, he deposed that his four gold rings were taken away by the Respondent and remain in her possession, however he did not lodge any police complaint.

22. In respect of the minor daughter, it was elicited that he neither filed any petition for DNA test nor filed any petition for custody or visitation rights. He deposed that he had seen the minor daughter only twice, once in January 2012 when the Respondent visited his office along with the minor child; and second time, at the house of her cousin brother where mediation took place.

23. It was elicited that he filed the petition for divorce at Adoni in April 2012, which is three years after their separation in April 2009. It was also elicited that the Respondent-wife never filed any domestic violence or criminal cases against him or his family members.

24. R.W.2, the younger brother of the Appellant-husband, in his chief examination, he deposed on similar lines as that of the Appellant. On the aspect of desertion, in his cross-examination, it was elicited that he was not present on the date when the Respondent-wife left the Appellant-husband. He deposed that the parties have been living separately since April 2009. He personally visited the house of the Respondent in April 2010, requesting her to join the society of the Appellant. He came to know about the birth of the minor daughter only when he visited the Respondent’s house in April 2010.

25. The Learned Family Court on consideration of the material on record and evidences, both oral and documentary, elaborately discussed the same, and gave findings on several aspects.

26. As discussed supra, the Appellant-husband filed the petition for dissolution of marriage on the ground of desertion against the Respondent-wife, whereas the Respondent herein filed the petition for restitution of conjugal rights. Thus, it is the Appellant who has to plead and prove desertion by producing cogent and reliable evidence.

27. According to the facts of the present case, it is not disputed that the parties got married on 28.02.2008 at Adoni. Out of the wedlock, on 04.12.2009, they were blessed with a daughter named Y. Kharunya. At present, she is 17 years old and is residing with her mother. The parties lived together happily only for a short period. However, the period for which the parties lived together is disputed.

28. According to him, they lived happily only for a short period of one month. The Respondent used to dictate terms and did not maintain cordial relations with his relatives. She visited his workplace asking his colleagues to advise him to behave according to her whims and fancies. She permanently deserted him on 07.04.2009, and never joined his society despite making several requests. He was informed about the birth of the female child only on 08.12.2009, i.e. four days after her birth, and received hostile treatment from the Respondent and her parents when he visited Hyderabad. Even in the month of August 2010, when he was transferred to Bhopal, he requested the Respondent to join his society, however she refused. Therefore, he lost hope in their reunion.

29. On the other hand, the Respondent-wife filed the petition for restitution of conjugal rights. She made allegations regarding giving of dowry at the time of marriage and the demand of additional dowry of Rs. 20 lakhs thereafter by the Appellant and his relatives. She had to undergo an abortion on account of harassment by the Appellant and his relatives. Further, he was absconding for around one year and nine months i.e. from 01.08.2010 to 26.04.2012. He was informed about the birth of the child on 04.12.2009 itself, however neither he nor his relatives visited Hyderabad to see the child. She is ready and willing to join the Appellant.

30. In the present case, the documentary evidence on record does not aid in determining the aspect of desertion. Exs. A1 and A2 filed by the Respondent are the ‘wedding card’ and ‘wedding photograph’ respectively. The marriage dated 28.02.2008 is not in dispute. Ex. B1 is the ‘Salary certificate’ filed by the Appellant20 husband. The same was filed before the Family Court in light of the maintenance case filed by the Respondent-wife. The said issue of maintenance is not under challenge before us. Therefore, in order to decide the aspects of ‘desertion’ and ‘restitution of conjugal rights’, this Court has to carefully peruse the oral evidence on record and the conduct of the parties.

31. Before perusing the evidence on record, it is pertinent to examine the meaning of the expression ‘desertion’ and the essentials thereto. In Savitri Pandey v. Prem Chandra Pandey ((2002) 2 SCC 73.), the Hon’ble Supreme Court observed that “Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without the other's consent and without reasonable cause. In other words, it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case.

32. A collation of the observations made by the Hon’ble Supreme Court in Lachman Uttamchand Kirpalani vs. Meena (AIR 1964 SC 40.) and Bipinchandra Jaisinghbhai Shah v. Prabhavati ((1956) 2 SCC 382.) clearly explains the settled legal position that the burden of proof lies upon the petitioner who seeks divorce on the ground of desertion to prove four essential conditions, namely, (1) the factum of separation; (2) animus deserendi; (3) absence of his or her consent; and (4) absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home.

33. It is a firmly entrenched principle of matrimonial jurisprudence that a decree of divorce on the ground of desertion can rest only upon the concurrent existence of two indispensable ingredients i.e. the factum of separation and the animus deserendi. Both elements must be affirmatively established by the party who seeks dissolution, and must survive the exacting test of proof beyond reasonable doubt.

34. In the case of Suman v. Rajbir Mathur (2025 SCC OnLine Del 10963.), a Division Bench of the Delhi High Court observed that the Court must deal with the claims of desertion with extreme caution. The requisite animus deserendi may not be disclosed by a solitary act but by the cumulative tenor of conduct of the party over time. A failure to establish either of the twin elements, or any suggestion that the petitioner seeks to profit from his or her own wrongful conduct, will be fatal to the plea and will disentitle the claimant to the remedy of divorce on the ground of desertion.

35. On careful perusal of the evidence on record, it can be observed that the parties lived happily only for a short period. The Appellant contends that the Respondent was not interested in the matrimonial life and did not behave with the Appellant and his family members in a cordial manner. She deserted the Appellant on 07.04.2009. It is further alleged that in the month of October 2009, when he visited his family at Adoni for celebrating a festival, he got to know from the house owner that the Respondent and her parents took away all the household articles and jewellery at midnight. However, it is apt to note that the house owner has not been examined to prove the same. He also alleged that the Respondent took away four (4) gold rings belonging to him, which remain in her possession. However, he did not file any police complaint. Mere allegation is not sufficient to grant decree of divorce on the ground of desertion. He has to establish the aforesaid ingredients by producing cogent evidence.

36. Further, the Appellant contends that he made several attempts to bring her back to join his society, which implies that there should have been some communication or correspondence between them. In light of the same, the contention of the Appellant that he was unaware of her pregnancy and that the Respondent and her parents did not inform about the pregnancy to him cannot be believed. It is apt to note that the Appellant has failed to adduce any evidence regarding the correspondence between the parties to prove that he made efforts to bring her back to matrimonial life.

37. Moreover, in respect of the minor daughter, he did not file any petition seeking the custody of the child or visitation rights. He admitted in his cross-examination that he had met the minor daughter only twice. He did not take any efforts to meet the daughter and failed to take responsibility of the child. This clearly shows that the Appellant is not interested in the minor child.

38. R.W.2, the younger brother of the Appellant deposed that the Respondent permanently deserted the Appellant on 07.04.2009. However, it is apt to note that in his cross-examination it was elicited that he was not present on that day. This creates suspicion over his deposition in respect of the allegation of desertion. Moreover, he deposed that he got to know about the birth of the female child only in April 2010 when he visited the Respondent’s house to bring her back to join the Appellant’s society. However, the Appellant claims to have known the said fact on 08.12.2009. This creates doubt as to when the birth of the female child actually came to the knowledge of the Appellant and his relatives. On one hand, the Appellant claims to have known about the birth on 08.12.2009, while his younger brother (R.W.2) claims to have known about the same in the month of April 2010 when he visited the Respondent’s house. While so, the Respondent-wife claims that the birth of the child was brought to the knowledge of the Appellant on 04.12.2009 i.e. the date of birth of the child.

39. It is apt to note that the Appellant did not adduce any documentary evidence regarding any correspondence or communication that took place between the parties. The Appellant did not examine any of his family members except his younger brother. He failed to examine his mother, elder brother, sister-inlaw, house owner, or colleagues to prove the specific allegations made by him.

40. In the present case, it is pertinent to examine if the essentials as to factum of separation and animus deserendi are fulfilled or not. The Appellant contends that the Respondent permanently deserted him on 07.04.2009 on the pretext of attending a marriage at Kurnool. Although the Respondent admits that she along with her parents went to Hyderabad on 07.04.2009, it was not with the view of terminating the relation. She categorically denied the suggestion that she did not meet the Appellant subsequent to the said date. Also, she specifically deposed in her cross-examination that they lived together at Tirupati for a period of 20 months, and not less than that. Further, she contends that she got pregnant in the month of February 2009. Later, on 07.06.2009, the Appellant dropped her at her parental house. She gave birth to a female child on 04.12.2009, and despite informing the Appellant, he did not visit the child at Hyderabad. On 15.04.2010, the Respondent along with the child went to Tirupati. The Appellant on the pretext of his transfer to Hyderabad, made her believe the same and shifted all household articles to her parental house. The Appellant got transferred to Bhopal in August 2010, which came to the knowledge of the Respondent after two months. However, as the Appellant used to change his SIM cards frequently and did not reveal his address at Bhopal, the Respondent had no means to contact him. It is her specific contention that the Appellant was absconding for one year and nine months from 01.08.2010 to 26.04.2012.

41. Therefore, the Appellant has clearly failed to establish the elements of factum of separation and animus deserendi. The separation was not intentional and does not amount to permanent abandonment on the part of the Respondent-wife. As observed by the Hon’ble Delhi High Court in the case of Suman (supra), failure to establish either of the afore-mentioned two elements, or any suggestion that the petitioner seeks to profit from his or her own wrongful conduct, will disentitle the claimant to the remedy of divorce on the ground of desertion.

42. In light of the settled law, it also essential to examine if the conduct of the Appellant herein gave reasonable cause to the deserting spouse i.e. the Respondent herein to leave the matrimonial home. As discussed supra, in the present case, the Appellant’s conduct was the reason for the Respondent to reside at her parental home instead of the matrimonial home.

43. As observed by the Hon’ble Supreme Court in Savitri Pandey (supra), desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. In the present case, the Respondent-wife has expressed her willingness to live with the Appellant and has no intention to live away from him. The single act of the Respondent leaving the matrimonial home on 07.04.2009 as alleged by the Appellant does not prove desertion. The continuous course of Respondent’s conduct thereafter should be taken into consideration. She was pregnant in February 2009 and gave birth to the female child on 04.12.2009, while she was residing at her parental home. In April 2010, she visited the Appellant but believing his words regarding his transfer to Hyderabad, she went to her parental home. Thereafter, she had no knowledge about his whereabouts as he frequently changed the SIM cards and did not reveal his address. Thus, the Appellant cannot profit from his own conduct. Having evaluated the facts and circumstances of this case, the testimony of witnesses, and the admissions made, we are of the view that the Appellant has failed to prove animus deserendi. We are not convinced with the contentions of the Appellant as he failed to adduce sufficient and reliable evidence to prove the ground of desertion.

44. It is also apt to note that during cross-examination, the Appellant categorically admitted that he is not willing to join the Respondent though she is willing to join him. She did not lodge any complaint against him for the offence under Section 498-A of the IPC. The said admission would reveal the intention of the parties. She always expressed her willingness to join the Appellant. He is an employee working in a nationalized bank and at present he is holding the rank of General Manager. It is also apt to note that the conciliation efforts made by the Learned Family Court were ‘unsuccessful’. There is specific reference to the said fact in paragraph 15 of the common order.

45. On consideration of the entire evidence, the Learned Family Court dismissed the divorce petition filed by the Appellanthusband. It was observed that the Appellant’s admission regarding subsisting disputes between the parties till October 2009and his contention that he made several attempts to bring the Respondentwife back to matrimonial life are quite contrary to his pleadings that he was not aware that the Respondent-wife was pregnant. Further, in respect of the Appellant’s contention of shifting the household articles to the Respondent’s parental home at midnight, he failed to examine the house owner. Moreover, the Appellant did not lead any other evidence to show that he had given notice to the Respondent to resume matrimonial life. The Learned Family Court also held that the Appellant neglected the Respondent-wife and the minor child, and he is the one who deserted them. The Court opined that the Appellant sought divorce on flimsy grounds and thereby dismissed the same. Consequently, the petition for restitution of conjugal rights filed by the Respondent-wife was allowed, directing the Appellant to lead a marital life with the Respondent. We agree with the view taken by the Family Court, and the said petition filed by the Appellant seeking dissolution of marriage on the ground of desertion was rightly dismissed.

46. During the course of hearing, it is brought to the notice of this Court that against the order passed by the Family Court in M.C. No. 46 of 2012, the Appellant filed Crl.R.C. No. 796 of 2017 and it was dismissed on 28.08.2017. SLP was preferred by him was also dismissed on 01.09.2022. He is not paying the maintenance amount as awarded by the learned Family Court. However, it is for the Respondent and her daughter to take steps against the Appellant for non-payment of the maintenance amount.

47. However, in the present case, it is apt to note that when FCOP No. 231 of 2013 was filed, the Appellant was 36 years old and the Respondent was 30 years old. At present, they are 49 years old and 43 years old respectively. They have been living separately for more than 16 years. There is irretrievable breakdown of marriage. However, this Court does not have the power to grant decree of divorce on the ground of irretrievable breakdown of marriage.

48. At the outset, it is pertinent to note that the Hon’ble Supreme Court in Sonal Talpada v. Veerbhan Singh (2026 SCC OnLine SC 1063), observed that the Appellate Court may assess and take into consideration the subsequent events occurring during pendency of proceedings. The Hon’ble Supreme Court also made few other observations, which are extracted hereunder:

               24. This Court in multitude of cases, has held that in situations where parties have been living separately for a considerable time without any hope for reconciliation amounts to cruelty to both the parties.

               25. In the light of the above, it can be said that the High Court has rightly assessed that where parties have been living separately for several years and at this stage asking them to live together after a prolonged duration would amount to cruelty to both the parties and divorce can be granted on this ground as provided under section 13 (1)(ia) of HMA. It may be added here that desertion as a ground requires an initial period as mentioned under the statute but if such desertion continues for a long period of time without any effort on the part of the parties to restore cohabitation would itself be a ground to be considered by the Appellate Court. This we say in the light of the fact that human relations are dynamic and once the initial mandate under the statute stands satisfied, continuation thereof during the litigation would aggravate the said agony which could be confirmational in substantiating the basis and pleaded ground for divorce. The same can be taken into consideration for formation of an opinion to accept the prayer by the Appellate Court. Appeal is the continuation of a suit and therefore, the Appellate Court would be entitled and justified to consider the conduct of the parties during the pendency of litigation. The same can also be looked into to support or reject an opinion on the ground in question.

               26. An Appellate Court, while carefully ensuring that a party does not profit from their own manifest wrong or unilateral desertion, may legitimately treat a prolonged period of separation as an indicator of mental cruelty within the meaning of Section 13(1)(ia) of the HMA. The Appellate Court is not precluded from examining whether continuous separation over a substantial period, coupled with absence of any genuine effort at reconciliation, complete cessation of cohabitation and emotional alienation has resulted in mental cruelty. Subsequent events occurring during pendency of proceedings may legitimately be taken into consideration while undertaking such assessment. In such circumstances, the confirmation of a decree of divorce by an Appellate Court is not an invocation of extraordinary constitutional jurisdiction under Article 142 of the Constitution of India, but a lawful and realistic application of the statutory ground of cruelty to the facts of the case.

               27. A significant aspect of this case is the prolonged physical separation spanning more than a decade and a half. While the statutory ground of ‘desertion’ under Section 13(1)(ib) of the HMA has not been formally pleaded by the Respondenthusband however, the element of desertion can be viewed neutrally through an objective lens where spouses choose independent professional and geographical paths and remain completely estranged without any reciprocal effort to bridge the distance.

               28. In such circumstances, desertion ceases to be merely a matter of individual malice or unilateral fault rather it assumes the character of a shared, de facto abandonment of the matrimonial covenant. The parties have objectively deserted the matrimonial framework itself. The intentional maintenance of distinct lifestyles, separate domiciles, and the total cessation of marital interaction over fifteen years establishes a de facto abandonment of the marital covenant by both sides.

49. In the light of the afore-mentioned observations of the Hon’ble Supreme Court, we are inclined to examine as to whether there is continuous separation over a substantial period and absence of any genuine effort at reconciliation. In this regard, it is apt to note that the parties have been residing separately for a continuous and substantial period of more than 16 years. However, from the facts of this case, it can be observed that the parties did not maintain separate domiciles intentionally. It was on account of the Appellant’s conduct that the Respondent-wife had to reside separately. The Hon’ble Supreme Court has also specifically held that the Appellate Court may examine if there is prolonged period of separation, complete cessation of cohabitation, and emotion alienation. However, it has been explicitly observed therein that the Appellate Court must adopt a careful and cautious approach such that a party does not profit from their own manifest wrong or unilateral desertion. On consideration of the facts and circumstances, it cannot be concluded that the desertion has assumed the character of a shared and de facto abandonment of matrimonial covenant. Therefore, the Appellant-husband cannot be allowed to profit from his own wrongful conduct for obtaining a decree of dissolution of marriage. In conclusion, we are not inclined to grant a decree of divorce on the ground of prolonged period of separation.

50. In the light of the above discussion, these appeals are dismissed. The impugned common order dated 19.12.2016 passed by the learned Family Court at Secunderabad in FCOP Nos. 231 and 654 of 2013 is confirmed. There is no order as to costs.

Consequently, miscellaneous applications, if any, pending in the appeals shall stand closed.