Divorce on desertion grounds requires two years’ continuous desertion immediately preceding the petition.

The parties married on 17 May 2011. The husband alleged that the wife treated him and his family members improperly and deserted him on 7 August 2011. After unsuccessful attempts to bring her back, he instituted a matrimonial divorce proceeding before the Family Court, Bhojpur at Ara, on the ground of desertion.

The judgment records the institution of the proceeding as 25 May 2012 in the factual narrative, and as 23 May 2012 while considering the limitation requirement under the statute.

The wife admitted the marriage and her short stay at the matrimonial home, but alleged dowry demands, physical and mental cruelty, threats to her life, and other matrimonial misconduct. She contended that she had left the matrimonial home to protect herself.

The Family Court framed issues including whether she had deserted the husband and whether he was entitled to divorce on that ground, and ultimately granted a decree of divorce in favour of the husband. The wife challenged that decree in the present appeal.

Whether the Family Court erred in granting a decree of divorce on the ground of desertion when the alleged desertion had continued for less than two years before presentation of the divorce petition?

Whether the impugned judgment and decree of divorce were legally sustainable and called for interference in appeal?

The Court applied Section 13(1)(ib) of the Hindu Marriage Act, 1955, which permits dissolution of marriage on the ground that the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.

The Court held that the statutory two-year period must have been completed immediately before the divorce petition is presented; a petition filed before completion of that period cannot result in a decree of divorce on the ground of desertion.

The husband’s own case was that the wife deserted him on 7 August 2011. However, the divorce proceeding was instituted in May 2012, approximately nine months after the alleged desertion.

Since Section 13(1)(ib) requires continuous desertion for at least two years immediately preceding presentation of the petition, the statutory condition was not satisfied when the proceeding was filed. Consequently, irrespective of the parties’ competing allegations regarding matrimonial conduct, the husband was not legally entitled to a decree of divorce on the pleaded ground of desertion. The Family Court’s decree therefore suffered from a legal defect warranting appellate interference.

The impugned judgment and decree of divorce were accordingly set aside, and the appeal was allowed.

As the marital relationship continued after setting aside the divorce decree, the Court declined to adjudicate the issue of permanent alimony.

There was no order as to costs.