A spouse who voluntarily leaves the matrimonial home cannot obtain divorce on the ground of desertion.

The appellant-husband challenged the judgment dated 20 July 2017 and decree dated 31 July 2017 by which the Additional Family Court, East Singhbhum, Jamshedpur dismissed his matrimonial suit seeking dissolution of marriage under Sections 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955 (“HMA”), on the grounds of cruelty and desertion.

The parties married on 18 February 1999 and had one son; the husband had two children from an earlier marriage.

The husband alleged that the wife and her family demanded money, assaulted and harassed him, mistreated his children from the first marriage, occupied his employer-allotted quarter, and instituted false criminal proceedings against him.

The husband had previously instituted Matrimonial Suit No. 49 of 2001, which was withdrawn without liberty to file a fresh suit. The present matrimonial suit was instituted in 2008, alleging subsequent acts of cruelty and desertion.

During the appeal, the parties briefly indicated consent to a one-time settlement of ₹25,00,000, but the wife subsequently withdrew her consent and sought adjudication on merits.

Whether the husband established that the wife had treated him with cruelty within the meaning of Section 13(1)(i-a) of the HMA?

Whether the wife had deserted the husband within the meaning of Section 13(1)(i-b) of the HMA?

Whether the subsequent matrimonial suit was barred by Order XXIII Rule 1(4) of the Code of Civil Procedure, 1908, because the earlier divorce suit had been withdrawn without liberty to institute a fresh suit?

Whether the wife’s criminal conviction, subsequently followed by acquittal in appeal, independently constituted a ground for dissolution of marriage?

The Court applied Sections 13(1)(i-a) and 13(1)(i-b) of the HMA: cruelty requires conduct sufficiently grave and weighty to cause a reasonable apprehension that living with the other spouse would be harmful or injurious, while desertion requires factum of separation, animus deserendi, absence of consent, absence of reasonable cause, and continuity for the statutory period.

The Court relied on Dr. N.G. Dastane v. Mrs. S. Dastane, (1975) 2 SCC 326; Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105; V. Bhagat v. D. Bhagat, (1994) 1 SCC 337; Vijay Kumar Ramchandra Bhate v. Neela Vijay Kumar Bhate, (2003) 6 SCC 334; Joydeep Majumdar v. Bharti Jaiswal Majumdar, (2021) 3 SCC 742; K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226; and Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778, concerning the contextual and grave nature of matrimonial cruelty.

For desertion, it relied on Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40, and Debananda Tamuli v. Kakumoni Kataky, (2022) 5 SCC 459.

Under Section 19(1) of the Family Courts Act, 1984, the High Court exercises appellate jurisdiction on facts and law and may reappraise the entire evidence, as explained in Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497.

Order XXIII Rule 1(4) CPC bars a fresh suit on the same cause of action after withdrawal without liberty, but a subsequent matrimonial proceeding based on fresh acts of cruelty or a fresh period of desertion may be maintainable.

Section 23(1)(d) HMA requires consideration of unnecessary or improper delay in instituting proceedings.

The Court found that the allegation that the wife had mistreated the husband’s children from his first marriage was unsupported because the children had lived and studied at Begusarai and were not shown to have resided with the wife at Jamshedpur; neither the children nor their maternal grandfather was examined.

The allegation of monetary demands and extortion was also not established. The only proved letter demanded ₹30,000, but both the wife and her father explained it as relating to construction materials purchased for the husband’s house, and the alleged intermediary and evidence of payment were not produced.

The numerous criminal proceedings did not establish unilateral cruelty because both parties had instituted several cases against each other, with the husband admitting that he had filed five cases and, in some instances, financially supported proceedings against the wife.

The wife’s conviction under Section 304B IPC could not independently justify divorce, particularly since she was subsequently acquitted by the High Court; in any event, criminal conviction was not an independent statutory ground under Section 13 HMA.

On desertion, the husband’s own case was that he left the matrimonial quarter and began living separately for his mental peace. The wife continued residing in the quarter and consistently expressed willingness to resume cohabitation.

Thus, although separation existed, the husband failed to prove the wife’s animus deserendi; the evidence instead indicated that the husband had withdrawn from the matrimonial relationship.

The subsequent suit was held maintainable because it relied on alleged subsequent incidents and a continuing or fresh cause of action in matrimonial law, notwithstanding the withdrawal of the earlier suit without liberty.

The allegations were either uncorroborated, contradicted by the evidence, or attributable to mutual litigation; the husband’s own conduct established that he had left the matrimonial home, while the wife’s intention to permanently end cohabitation was not proved.

The subsequent matrimonial suit was held maintainable, but the appeal was dismissed on merits.

The judgment dated 20 July 2017 and decree dated 31 July 2017 dismissing Matrimonial Suit No. 145 of 2008 were affirmed, and pending interlocutory applications, if any, were disposed of.