A divorce petition based on desertion is premature unless desertion continued for two years.

The appellant-husband challenged the judgment dated 7 October 2023 of the Principal Judge, Family Court, Patna, dismissing Matrimonial (Divorce) Suit No. 756 of 2008, which sought dissolution of the parties’ marriage on the grounds of cruelty, desertion and adultery.

The parties were married on 19 June 2007. The appellant alleged that the respondent refused to consummate the marriage, maintained an illicit relationship with Rohit Kumar, quarrelled with him, threatened suicide, and ultimately left the matrimonial home on 21 July 2008.

The respondent denied the allegations and asserted that she had been assaulted and driven out of the matrimonial home because of dowry demands, and that the allegations concerning Rohit Kumar were fabricated.

The appellant examined himself and two other witnesses and produced documentary evidence, whereas the respondent did not adduce evidence at trial.

The divorce suit was instituted on 17 December 2008, approximately five months after the alleged desertion.

Whether the appellant established that the respondent had treated him with cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act, 1955?

Whether the appellant was entitled to divorce on the ground of desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955?

Whether the allegations of the respondent’s illicit relationship with Rohit Kumar/adultery were proved so as to justify a decree of divorce?

The Court applied Section 13(1)(ia) of the Hindu Marriage Act, 1955, under which divorce may be granted where the other spouse has treated the petitioner with cruelty, and Section 13(1)(ib), which requires desertion for a continuous period of not less than two years immediately preceding presentation of the divorce petition.

The Court also considered the appellant’s allegation of adultery under Section 13(1)(i), requiring proof of voluntary sexual intercourse with a person other than the spouse.

The appellant bore the burden of proving the pleaded matrimonial offences by legally sufficient evidence; uncorroborated allegations, suspicion, or evidence incapable of establishing the alleged conduct could not justify a decree of divorce.

The Court further noted the principle that a party cannot take advantage of his or her own wrongdoing, as referred to by the Family Court.

The claim based on desertion was legally premature because the appellant alleged that desertion commenced on 21 July 2008, while the divorce petition was filed on 17 December 2008—well before the statutory two-year period under Section 13(1)(ib) had expired.

As to cruelty and adultery, the appellant’s evidence principally consisted of allegations that the respondent maintained an illicit relationship with Rohit Kumar and refused physical relations with him.

The Court found that the allegation of an illicit relationship was not supported by sufficient positive or corroborative evidence.

The other witnesses could not reliably testify about the parties’ private marital relationship, including the alleged refusal of sexual relations, because such matters occurred within the privacy of the matrimonial home.

Accordingly, the appellant failed to establish cruelty within the meaning of Section 13(1)(ia), and the allegations of adultery were also not proved.

The desertion claim was premature for want of the statutory two-year period, and the allegations of cruelty and illicit relationship were not proved by sufficient evidence.

The appeal was dismissed on contest, the judgment of the Principal Judge, Family Court, Patna, was affirmed, and there was no order as to costs.