A spouse forced to leave the matrimonial home by cruelty is not guilty of desertion.

The parties married under the Special Marriage Act, 1954, on 20 October 2010 and had two children. The wife alleged that her husband’s alcohol use, assaults, demands for money, and failure to support the family amounted to cruelty. She stated that he drove her and the children from the matrimonial home on 15 March 2018, after which they lived with her parents.

She petitioned for divorce under Section 27(1)(b) and (d) of the Act. The Family Court proceeded ex parte but dismissed the petition; the wife appealed. The husband did not appear in the appeal despite service.

1. Whether the Family Court’s refusal to grant divorce on the grounds of cruelty and desertion under Section 27(1)(d) and (b) of the Special Marriage Act, 1954, warranted appellate interference.

2. Whether the evidence established cruelty and desertion sufficient to dissolve the marriage.

Section 19(1) of the Family Courts Act, 1984, permits an appeal from a Family Court judgment on facts and law, and the first appellate court may reappraise the evidence.

Civil matrimonial proceedings are determined on the balance of probabilities, not proof beyond reasonable doubt.

Under Section 27(1)(d) of the Special Marriage Act, cruelty is assessed contextually; conduct must be sufficiently grave to make continued cohabitation unreasonable, and may be physical or mental.

Under Section 27(1)(b), desertion requires separation and an intention permanently to end cohabitation, without the other spouse’s consent or reasonable cause; the statutory ground requires the prescribed period of desertion.

A finding may be set aside as perverse where relevant evidence is ignored or the conclusion is irrational.

The wife’s testimony described repeated intoxication, assaults, demands for money, and conduct affecting her and the children. The High Court held that the absence of a formal FIR did not, by itself, discredit her evidence, particularly where she had testified to informing the police.

It found that the Family Court had failed to properly consider this material and that its finding on cruelty was therefore perverse.

The wife’s departure was found to have been compelled by the alleged cruelty and the need to protect herself and the children, rather than a voluntary abandonment of the marriage; the parties had lived separately since 2018.

The Family Court’s failure to assess the evidence and prolonged separation warranted appellate intervention.

It held that the children’s inheritance rights remained unaffected and left it open to the wife to seek maintenance for them before the appropriate forum.