Jharkhand HC Rejects Husband’s Divorce Appeal, Finding No Proof Wife Knew Of Ex Parte Restitution Decree Or Intended To End Marriage

In brief

The question

1. Whether the Family Court’s dismissal of the divorce petition was perverse or otherwise warranted interference in appeal

The court held

The High Court held that the husband had not established grounds for reversing the Family Court’s decision.

It also directed

The appeal was dismissed, and any pending interlocutory applications were disposed of.

01Facts

The parties married on 11 May 1995 and have two sons. The wife left the matrimonial home with the children in 2013; the husband later obtained an ex parte decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, on 11 November 2016.

¶ 1–4, 18–23, 48–60

The parties had also participated in mediation and, according to the husband, briefly resumed living together. The wife alleged that she returned to her parental home after further ill-treatment.

¶ 1–4, 18–23, 48–60

In 2019, the husband petitioned for divorce, relying on the wife’s non-compliance with the restitution decree and alleging desertion. The Family Court dismissed the petition, finding that he had not proved his case on a balance of probabilities. He appealed under Section 19(1) of the Family Courts Act, 1984.

¶ 1–4, 18–23, 48–60

02Issues

i.1. Whether the Family Court’s dismissal of the divorce petition was perverse or otherwise warranted interference in appeal

¶ 5–8, 27–33, 46

ii.2. Whether the husband established entitlement to divorce under Section 13(1-A)(ii) of the Hindu Marriage Act, 1955, on the basis of non-resumption of cohabitation after the restitution decree, or proved desertion by the wife

¶ 15, 42–45, 60–62

03Law Applied

Section 13(1-A)(ii) of the Hindu Marriage Act, 1955 permits either spouse to seek divorce where conjugal rights have not been restituted for at least one year after a decree for restitution of conjugal rights.

¶ 43–45

In civil proceedings, facts are proved on a preponderance of probabilities, not beyond reasonable doubt; the Court referred to Section 3 of the Evidence Act and A. Jayachandra v. Aneel Kaur.

¶ 38–40

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

¶ 34–37

A factual finding is perverse where it ignores or excludes relevant evidence, relies on irrelevant material, or is so irrational that no reasonable court could have reached it; a different view of the evidence or its alleged inadequacy alone is insufficient. The Court relied on Arulvelu v. State and Damodar Lal v. Sohan Devi for this standard.

¶ 30–33

Desertion requires proof of separation and an intention permanently to end matrimonial cohabitation, or animus deserendi.

¶ 62

Provisions in the judgment · 8 · Linked ones open on LawLens

Family Courts Act, 1984 Section 7 Section 19

Hindu Marriage Act, 1955 Section 9 Section 13

Indian Penal Code, 1860 Section 323 Section 506

Code of Criminal Procedure, 1973 Section 125

Code of Civil Procedure, 1908 Section 96

04Reasoning

The High Court found no basis to disturb the Family Court’s assessment.

¶ 53–57

Although the Section 9 decree had been passed in 2016, the husband did not show that the wife knew of it or that he had taken steps to enforce it with a genuine intention of restoring cohabitation; the decree also did not disclose the parties’ mediation settlement or subsequent period of living together.

¶ 53–57

The wife stated that she wished to live with her husband, while alleging that she had returned to her parental home after being mistreated. In those circumstances, the evidence did not establish that her separation reflected a settled intention to end the marriage.

¶ 58–63

The husband therefore failed to prove either knowing, wilful non-compliance with the decree as advanced in support of his claim or the essential element of animus deserendi; the Family Court’s conclusion was not perverse.

¶ 58–63