A spouse who refuses reconciliation cannot establish desertion against a spouse willing to resume cohabitation.

The parties married on 5 May 2009 and began living together at Bilaspur. On 23 July 2009, the husband took the wife to her parental home for Raksha Bandhan. They thereafter lived separately.

The husband alleged that the wife refused to return unless he arranged separate accommodation, and sought divorce under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 (“HMA”), on grounds of cruelty and desertion. The Family Court dismissed his petition in Original Suit No. 584 of 2019. The wife, maintaining that she remained willing to resume cohabitation and that the husband had refused to take her back, obtained a decree for restitution of conjugal rights under Section 9 HMA in Original Suit No. 313 of 2019. The husband appealed both decisions under Section 19(1) of the Family Courts Act, 1984.

Whether the wife’s conduct, including her alleged refusal to return unless provided separate accommodation, established cruelty warranting divorce under Section 13(1)(ia) HMA

Whether the wife deserted the husband, without reasonable cause and with the intention permanently to end cohabitation, as required by Section 13(1)(ib) HMA

Whether the wife had withdrawn from the husband’s society without reasonable excuse, entitling her to restitution of conjugal rights under Section 9 HMA

Under Section 19(1) of the Family Courts Act, an appeal lies to the High Court on facts and law, and the appellate court may reappraise the evidence.

Section 13(1)(ia) HMA requires proof of cruelty assessed contextually; the conduct must be sufficiently grave and weighty, and ordinary marital disagreements do not suffice, relying on Dastane v. Dastane, (1975) 2 SCC 326, and Joydeep Majumdar v. Bharti Jaiswal Majumdar, (2021) 3 SCC 742.

Desertion under Section 13(1)(ib) requires factum of separation and animus deserendi, without the deserted spouse’s consent and without reasonable cause attributable to that spouse, relying on Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40, and Debananda Tamuli v. Kakumoni Kataky, (2022) 5 SCC 459.

Under Section 9 HMA, the withdrawing spouse bears the burden of proving reasonable excuse for withdrawal; restitution may be ordered where withdrawal is without reasonable excuse and no legal ground bars relief.

A finding is perverse only where it is unsupported by evidence, ignores or misapprehends material evidence, or is one no reasonable court could reach; a different view of the evidence is insufficient, relying on Arulvelu v. State, (2009) 10 SCC 206, and Damodar Lal v. Sohan Devi, (2016) 14 SCC 197.

The husband did not establish cruelty by specific or cogent evidence. His allegation that the wife insisted on separate accommodation was denied, and even if established, the request alone did not amount to cruelty. The evidence also showed that he did not pursue sustained efforts to resume cohabitation and had stated that he would not keep his wife; meanwhile, she consistently expressed willingness to return and had sought restitution.

The husband therefore failed to prove that the wife had the necessary intention permanently to end cohabitation. The evidence instead supported the Family Court’s finding that he had left her at her parental home and later refused to resume marital life.

For the Section 9 petition, the wife’s repeated requests and legal notice supported her willingness to resume cohabitation, while the husband’s evidence established his refusal to take her back. He did not prove a reasonable excuse for his withdrawal from her society.

Both appeals—First Appeal Nos. 177 and 178 of 2024—were dismissed; the decree refusing divorce and the decree directing restitution of conjugal rights were left undisturbed.