Conviction under Section 498A and non-payment of maintenance preclude a husband from seeking divorce on grounds of desertion and cruelty.

The parties married on May 1, 2001, and have one daughter

The appellant-husband filed for divorce in 2019 under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955, alleging the respondent-wife deserted him on May 30, 2005, and subjected him to cruelty through criminal litigation and physical assault during a reconciliation attempt in 2017

The wife contested, alleging she was ousted due to unmet dowry demands; she successfully prosecuted the husband and his family under Section 498A IPC, leading to their conviction (currently under revision)

She further alleged the husband committed bigamy and defaulted on maintenance payments

The Additional Family Court, Rajmahal, dismissed the suit on July 19, 2022, finding no evidence of cruelty or desertion

1. Whether the findings of the lower court were "perverse" regarding the evidence on record

2. Whether the respondent-wife subjected the appellant to mental or physical cruelty justifying a decree of divorce

3. Whether the respondent-wife deserted the appellant without reasonable cause for a continuous period of at least two years

Section 13(1)(i-a) (cruelty) and 13(1)(i-b) (desertion) of the Hindu Marriage Act, 1955

The court relied on Arulvelu v. State, defining "perverse" findings as those unsupported by evidence or against the law

Regarding cruelty, it applied Dr. N.G. Dastane v. Mrs. S. Dastane (reasonable apprehension of harm) and Joydeep Majumdar v. Bharti Jaiswal Majumdar (conduct must be grave and weighty, not ordinary wear and tear)

For desertion, it followed Lachman Utamchand Kirpalani v. Meena and Debananda Tamuli v. Kakumoni Kataky, requiring the proof of both factum deserdendi (separation) and animus deserendi (intention to end cohabitation) without reasonable cause

The High Court found the husband’s allegations of cruelty vague and lacking specific dates or descriptions of the alleged harassment

The court noted that the wife’s initiation of criminal proceedings under Section 498A IPC did not constitute cruelty as the husband had been convicted by the trial court, indicating a prima facie valid cause for litigation

Regarding desertion, the court observed that the separation in 2005 was not voluntary on the wife’s part but a result of being ousted for dowry, providing her with a "reasonable cause" to live separately

Furthermore, the wife expressed a continuous willingness to return provided her safety was guaranteed, negating the required animus deserendi

The court held that the appellant failed to prove perversity in the lower court's judgment as his own testimony revealed he never sought the wife's return and refused to maintain her

The court specifically answered that the respondent did not desert the appellant without cause (the cause being dowry harassment) and that the husband failed to produce cogent evidence of cruelty

The High Court dismissed the appeal and upheld the Family Court's judgment; the decree of divorce was denied