Divorce On Desertion Requires Abandoning Marital Duties For Two Years, Not Just Leaving Matrimonial Home: Jharkhand High Court

The Court was hearing an appeal under Section 19(1) of the Family Courts Act, 1984 against an ex parte judgment dismissing the wife’s petition for divorce on the grounds of desertion and cruelty under Sections 27(1)(b) and 27(1)(d) of the Special Marriage Act, 1954.

A Bench of Justice Sujit Narayan Prasad and Justice Sanjay Prasad observed: “Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, ‘the home’. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party”.

The Bench further remarked: “The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least two years immediately preceding the presentation of the petition or, where the offence appears as a cross-charge, of the answer.”

Advocate Prabhash Kumar appeared for the appellant-wife. The respondent-husband remained unrepresented despite service of notice.

Background

The Court noted that the parties married in 2010 and had two children. The wife alleged that the husband became habitually intoxicated, stopped working, neglected the family’s needs and subjected her and the children to abuse and assault.

According to the wife, she was driven out of the matrimonial home with the two children in March 2018 and thereafter took shelter with her parents. She stated that she worked as a nurse in a private hospital to maintain herself and the children.

The husband did not appear before the Family Court despite service of notice, and the divorce proceedings continued ex parte. The wife testified and produced the marriage certificate, a photograph and the newspaper publication concerning service of notice.

The Family Court nevertheless dismissed the divorce petition. The wife contended before the High Court that the Family Court had failed to appreciate her evidence concerning the husband’s intoxication, assault, neglect and abandonment of the family.

The husband also remained absent from the appellate proceedings despite personally receiving notice.

Court’s Observations

High Court Could Reappraise The Entire Evidence

The Court observed that an appeal under Section 19 of the Family Courts Act lay both on facts and law and was comparable in scope to a first appeal under Section 96 of the Code of Civil Procedure.

Relying on Jagdish Singh v. Madhuri Devi (2008), the Court stated that a first appellate court could reappraise and review the entire oral and documentary evidence and reach its own conclusions.

The Court further observed that matrimonial proceedings were civil in nature and governed by the standard of preponderance of probabilities. It relied on A. Jayachandra v. Aneel Kaur (2005) to clarify that proof beyond reasonable doubt did not govern delicate personal disputes between spouses.

Referring to Arulvelu v. State (2009) and Damodar Lal v. Sohan Devi (2016), the Court held that an appellate court could interfere where relevant evidence was ignored or a finding was so unreasonable that it became perverse.

Cruelty Must Be Assessed Contextually

The Court examined cruelty under Section 27(1)(d) of the Special Marriage Act and noted that the comparable principles developed under the Hindu Marriage Act could guide its interpretation.

Referring to Dr. N.G. Dastane v. S. Dastane (1975), the Court observed that the inquiry was whether the conduct caused a reasonable apprehension that living with the other spouse would be harmful or injurious.

The Court relied on Shobha Rani v. Madhukar Reddi (1988) to observe that cruelty had no fixed definition and could be physical or mental, intentional or unintentional. Its assessment depended upon the parties’ way of life, social and economic circumstances, culture and values.

The Court also referred to V. Bhagat v. D. Bhagat (1994), Vijay Kumar Ramchandra Bhate v. Neela Vijay Kumar Bhate (2003), Joydeep Majumdar v. Bharti Jaiswal Majumdar (2021) and Vishwanath Agrawal v. Sarla Vishwanath Agrawal (2012) while explaining that grave and sustained conduct causing mental pain, humiliation or misery could amount to matrimonial cruelty.

Relying on K. Srinivas Rao v. D.A. Deepa (2013), the Court observed that spouses need not live under the same roof for mental cruelty to occur. It further referred to Ravi Kumar v. Julmidevi (2010), Vinita Saxena v. Pankaj Pandit (2006) and Manish Tyagi v. Deepak Kumar (2010) to note that continued ill-treatment, neglect, indifference and conduct making cohabitation unreasonable could constitute cruelty.

Absence Of Formal FIR Did Not Discredit Wife’s Testimony

The Court noted that the wife had testified about informing the police of the alleged torture and assault. The Family Court had nevertheless rejected her claim substantially because no formal criminal case had been registered.

The High Court held that the absence of an FIR could not, by itself, discredit testimony concerning cruelty in matrimonial proceedings.

“The mere fact of non-institution of a formal First Information Report cannot, by itself, be treated as a ground to discredit such testimony,” the Court observed.

The Court stated that the wife had explained the alleged torture and assault and questioned why she would voluntarily choose solitude and financial hardship unless compelled by the husband’s conduct. It held that this circumstance lent credibility to her testimony and could not be disregarded on an extraneous consideration.

The Court consequently found the Family Court’s conclusion on cruelty perverse because it had failed to appreciate material evidence.

Physical Departure Does Not Determine The Deserting Spouse

The Court referred to the statutory explanation of desertion under Section 27 of the Special Marriage Act. It observed that desertion meant abandonment by one spouse without reasonable cause, without the consent or against the wishes of the other spouse, and included wilful neglect.

The Court stated that desertion required permanent abandonment of marital obligations and could not be determined merely by identifying which spouse physically left the matrimonial home.

Relying on Debananda Tamuli v. Kakumoni Kataky (2022) and Lachman Utamchand Kirpalani v. Meena (1964), the Court identified two requirements concerning the deserting spouse: the fact of separation and the intention to bring cohabitation permanently to an end.

The Court further identified two requirements concerning the deserted spouse: absence of consent to the separation and absence of conduct providing the other spouse with reasonable cause to leave.

“The quality of permanence is one of the essential elements which differentiate desertion from wilful separation,” the Court stated.

The Court added that temporary separation caused by anger or disgust would not constitute desertion unless accompanied by an intention permanently to end cohabitation.

Wife Was Compelled To Leave Because Of Cruelty

The Court considered the wife’s evidence that the husband habitually consumed alcohol, assaulted her for money and mistreated the children. It noted that she claimed to have left the matrimonial home to protect herself and the children.

The Court observed that the wife had remained at her parental home since 2018 because of the circumstances allegedly created by the husband. It consequently found that her departure was compelled rather than voluntary.

“The departure of the appellant-wife from the matrimonial home cannot be construed as a wilful abandonment of the respondent-husband. Rather, it was a compelled act necessitated by the cruelty inflicted upon her, thereby amounting itself to cruelty in law,” the Court held.

The Court added that cruelty and desertion could be interconnected. Where cruelty forced a wife to leave the matrimonial home, she could not be treated as having left voluntarily.

Husband’s Continued Absence Reflected Indifference To Marriage

The Court noted that the husband deliberately remained absent both before the Family Court and the High Court despite valid service of notice.

It observed that his persistent non-appearance reflected his indifference towards preserving the marital relationship and disregard of the judicial proceedings.

The Court further noted that the parties had been living separately since 2018 and described the marriage as having become incapable of revival. It held that the wife, who was independently maintaining herself and the children, could not be compelled to continue living with the husband despite her evidence concerning cruelty and torture.

The Court held that the Family Court had failed to consciously consider the evidence concerning the husband’s drinking, assault, torture and neglect. It also failed to appreciate the circumstances that had compelled the wife to leave the matrimonial home.

The Court found that the conclusions concerning cruelty and desertion had been reached without proper consideration of the available evidence and therefore fell within the scope of perversity.

Conclusion

The Court allowed the appeal and set aside the Family Court’s judgment and decree dismissing the divorce petition. It allowed the wife’s original petition and dissolved the marriage, directing the Registry to issue the decree of dissolution.

The Court clarified that the children’s inheritance rights would remain intact despite the dissolution of the marriage.

The Court noted that the wife had not sought maintenance for herself because she was working as a nurse. However, it clarified that she remained free to claim maintenance from the husband for the sustenance and education of the minor children by approaching the appropriate forum.

Cause Title: X v. Y (Neutral Citation: 2026:JHHC:30306-DB)

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