Desertion Should be Voluntary for Divorce: Jharkhand High Court [Read Judgment]

In a recent Judgment on Desertion, yesterday a Division bench of Jharkhand High Court held that the mere filing of criminal cases could not be treated as cruel behaviour on the part of the wife unless allegations made are proved to be false. The High Court dismissed the appeal and upheld the Judgment and decree passed by the Principal Family Court.


The marriage between the parties was solemnized at Mirazganj on 29.01.2007 in the presence of relatives and family members of both the parties. They lived as husband and wife at Delhi and Ranchi. They had two children, a daughter and a son from the wedlock. 

The appellant-husband alleged that his respondent-wife always behaved psychically and rudely with the appellant-husband as well as his parents. She treated the appellant-husband and his parents with utmost cruelty in various ways. 

There has been many fights and incidents between the Appellant and Respondent, and at various times compromise was also entered between the parties. The Respondent Wife also filed a case under section 498 IPC against her husband and left the place of the appellant on 12.07.2014 out of free will which, as per the Appellant-Husband, amounted to desertion. 

Appellant-Husband instituted a suit no.174 of 2016 seeking a divorce under Section 13 of the Hindu Marriage Act on the ground of cruelty, desertion and mental incapacity of the respondent-wife. The Trial Court after analyzing the evidence, pleadings and argument of the parties decided all the issues against the Appellant Husband and in favour of the wife-respondent.

Being aggrieved, an appeal was filed by the appellant-husband before the Jharkhand High Court. During the course of the trial, as well as Appeal, efforts of mediation were made between the parties, but all the efforts failed. Even during the final hearing of the Appeal, efforts of compromise were made by the High Court, but there could be no compromise between the parties. Hence the High Court decided the Appeal on merits.


(I).Whether the respondent-wife has treated the appellant-husband with cruelty warranting the dissolution of marriage.

(II).Whether residing separately by wife since12.07.2014 amounts to desertion entitling the husband for the decree of divorce as per the mandate of Section 13 (i-b) of the Hindu Marriage



The Trial Court had passed illegal Judgment and decree as it did not consider the evidence on record. Based on the evidence on record, the cruelty of the wife was proved.  He further said that the respondent-wife filed multiple false cases against him and he had to go in jail, which amounted to cruelty. Therefore, he was entitled to the decree of divorce. 

If desertion since 12.07.2014 admitted as a fact, this alone would be enough for a decree of divorce to be passed in his favour. No case for restitution of conjugal rights was filed by the wife, which showed that she deserted the appellant voluntarily and due to the irretrievable breakdown of the marriage, a decree of divorce should have been passed.


All the evidence on record was rightly considered by the below Court, and after that, the case was decided against the appellant-husband. It was pleaded that there is no illegality in the Judgment and decree passed by the Trial Court, and the Appeal deserves to be dismissed. Respondent-Wife showed a willingness to live with the appellant-husband, but the husband refused.



The appellant-husband did not give any documentary evidence to prove his claim, whereas the claim of the wife supported by oral as well as documentary evidence produced by her. The mere filing of criminal cases could not be treated as cruel behaviour of the respondent-wife unless such allegations proved to be false.

It looks like the husband wanted to get rid of his wife as he sent the petition of divorce by mutual consent to the wife along with his signature on it. He also sent a letter to his father-in-law, which suggested the same. Therefore, cruelty by the respondent-wife was not proved.


Desertion should be voluntary, but in this case, the wife was driven out of the marital home. She was still willing to live in her matrimonial home with her husband. The husband was at fault as he compelled the respondent-wife to leave her matrimonial home. Court further observed that it is also a settled principle of law that nobody can take benefit of his fault. If the contention of the appellant-husband is accepted, then the very purpose of the law will be defeated.

Also, if the contention of Appellant-Husband is accepted that any husband willing to get rid of his wife may do so by driving out his wife from marital home by force or creating such a situation and thereafter may take a plea before the Court of law for annulling the marriage on the grounds of desertion.  For valid desertion, it is necessary that one of the parties to the marital home should voluntary and without any justification left the matrimonial home leaving no option to the other party, only in that case it amounts to desertion. 

Ultimately, the Court dismissed the Appeal of the Husband and also imposed a cost of Rs. 20,000/- towards litigation expenses.

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