The Jharkhand High Court has dismissed a husband's appeal against the dismissal of his divorce petition filed under Section 13(1-A)(ii) of the Hindu Marriage Act, holding that non-compliance with a decree for restitution of conjugal rights does not automatically entitle a spouse to divorce where the decree-holder fails to prove the other spouse had knowledge of the decree and wilfully refused to resume cohabitation. The Division Bench affirmed the Family Court's finding that the wife's separate residence stemmed from compelling circumstances arising out of prolonged matrimonial discord and litigation, not from an intention to desert the marriage permanently.
Background & Facts
The Dispute
The appellant-husband, Mithilesh Kumar, sought a decree of divorce against his wife, Rita Devi, on the ground that she had failed to comply with an ex parte decree for restitution of conjugal rights passed in his favour on 11 November 2016. The marriage was solemnised on 11 May 1995 at Jehanabad, Bihar, according to Hindu rites. Two sons were born of the wedlock: Ankur Kumar (aged approximately 17 years) and Rohit Kumar (aged approximately 14 years), both residing with the respondent-mother.
Key Facts
- The parties resided together at Ranchi after marriage until 2013, when the respondent, allegedly at the behest of her parents, began pressuring the appellant to relocate to Bhuli, Dhanbad, where her retired parents lived.
- On 13 April 2013, the respondent left Ranchi with both children and moved to her parental home at Bhuli, Dhanbad, and refused to return despite the appellant's repeated requests.
- The appellant filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights (M.T.S. No. 197 of 2013) before the Family Court, Ranchi, which was allowed ex parte on 11 November 2016.
- In September 2013, the respondent filed Criminal Complaint Case No. 1205 of 2013 under Sections 498A, 323, and 506 IPC against the appellant before the Chief Judicial Magistrate, Dhanbad.
- The appellant filed Anticipatory Bail Application No. 708 of 2014 before the Jharkhand High Court. During its pendency, the dispute was referred to the Mediation Centre, JHALSA, Ranchi, where the parties reached a settlement agreeing to resume cohabitation at Ranchi with their children.
- Pursuant to the settlement, the respondent and the younger son Rohit Kumar came to Ranchi. The appellant secured Rohit's school admission, paying over Rs. 10,000 as admission fees and miscellaneous expenses.
- The appellant's mother passed away at their native village. The appellant requested the respondent to attend the funeral with the children, but she allegedly returned to her parental home with the children instead.
- The respondent agreed to withdraw all cases filed by her but continued to pursue Maintenance Petition No. 104 of 2014 under Section 125 CrPC before the Family Court, Dhanbad, which was allowed on 10 June 2016, directing the appellant to pay Rs. 6,000 per month to the respondent and Rs. 1,000 per month per child.
- The appellant challenged the maintenance order in Criminal Revision No. 1043 of 2016, which was dismissed on 1 July 2020. Only thereafter did the appellant commence maintenance payments.
- The respondent, in her deposition before the Family Court, categorically stated she had no knowledge of the ex parte decree in M.T.S. No. 197 of 2013 and expressed her willingness to reside with the appellant.
- The divorce petition (Original Suit No. 270 of 2019) was filed on 29 April 2019, more than two and a half years after the restitution decree.
Procedural History
- 11 November 2016: Ex parte decree for restitution of conjugal rights passed in M.T.S. No. 197 of 2013 by Family Court, Ranchi.
- 29 April 2019: Divorce petition under Section 13(1-A)(ii) HMA filed as Original Suit No. 270 of 2019 before Additional Family Court-I, Ranchi.
- 19 March 2025: Family Court dismissed the divorce petition, holding the appellant failed to prove his case even on preponderance of probabilities.
- 2025: First Appeal No. 148 of 2025 filed before the High Court of Jharkhand at Ranchi.
- 29 September 2026: Arguments concluded; judgment reserved.
- 5 November 2026: Judgment pronounced dismissing the appeal.
Relief Sought
The appellant sought setting aside of the Family Court's judgment dated 19 March 2025 and a decree of divorce dissolving the marriage on the ground that there had been no restitution of conjugal rights for a period of one year or upwards after the passing of the decree in M.T.S. No. 197 of 2013.
The Legal Issue
The central questions were: (1) Whether the Family Court's dismissal of the divorce petition suffered from perversity warranting appellate interference; (2) Whether the mere fact of non-compliance with an ex parte decree for restitution of conjugal rights for over one year automatically entitles the decree-holder to a divorce under Section 13(1-A)(ii) of the Hindu Marriage Act; (3) Whether the respondent-wife's separate residence constituted desertion with the requisite animus deserendi where she claimed no knowledge of the decree and expressed willingness to cohabit.
Arguments Presented
For the Appellant
Mr. Anurag Kashyap, counsel for the appellant, contended that the Family Court had failed to properly consider the evidence adduced by the appellant. He submitted that the appellant himself had filed the Section 9 petition, which was allowed ex parte, and that the respondent had been living separately since 2017 despite the decree. This, he argued, established the statutory ground under Section 13(1-A)(ii) HMA. The judgment was perverse as it ignored the admitted fact of prolonged separation after the decree and the appellant's bona fide efforts to restore cohabitation, including through mediation and school admission of the child.
For the Respondent
Mr. Sanjay Prasad, counsel for the respondent, defended the impugned judgment, submitting that the Family Court had correctly appreciated the evidence on restitution and desertion. He contended that the respondent was subjected to matrimonial cruelty and dowry demands, leading to the filing of the criminal case. The mediation settlement was entered into by the appellant solely to secure anticipatory bail, and the respondent was again ousted from the matrimonial home thereafter. The respondent had no knowledge of the ex parte decree and had categorically expressed her willingness to live with the appellant. The separation was due to compelling circumstances, not desertion.
The Court's Analysis
The Division Bench, per Justice Sujit Narayan Prasad, began by examining the standard for perversity in appellate review. Citing Arulvelu v. State (2009) 10 SCC 206 and Damodar Lal v. Sohan Devi (2016) 14 SCC 197, the Court held that perversity requires a finding that ignores relevant material, considers irrelevant material, or so outrageously defies logic as to suffer from irrationality. Mere inadequacy of evidence or a different reading of evidence does not constitute perversity.
The Court then analysed the scope of appellate jurisdiction under Section 19 of the Family Courts Act, which provides for appeals "both on facts and on law." Relying on Jagdish Singh v. Madhuri Devi (2008) 10 SCC 497, the Court affirmed its power to reappraise, reappreciate, and review the entire evidence and come to its own conclusion.
On the substantive provision, the Court examined Section 13(1-A)(ii) of the Hindu Marriage Act, which permits divorce where "there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights." The Court articulated the legislative intent: when a restitution decree fails to restore matrimonial harmony and parties continue to live separately, the marriage may be treated as irretrievably broken down in substance.
However, the Court found critical factual deficiencies in the appellant's case. First, the divorce petition was filed on 29 April 2019, more than two and a half years after the decree of 11 November 2016, yet the appellant produced no evidence of having taken any steps to execute or enforce the decree with a bona fide intention of restoring cohabitation. The Family Court had noted this absence of enforcement efforts.
Second, the appellant had not disclosed the mediation settlement or the period of cohabitation during the pendency of the Section 9 proceeding when obtaining the ex parte decree. The respondent, in her testimony, categorically denied knowledge of the decree, and the appellant produced no documentary evidence to prove service or awareness.
Third, the respondent unequivocally stated in her deposition that she was willing to reside with the appellant. The Family Court inferred that her separate residence was neither deliberate nor motivated by an intention to permanently terminate cohabitation, but was a consequence of prolonged matrimonial discord and continuous litigation.
The Court concluded that the appellant failed to establish the essential ingredient of animus deserendi on the part of the respondent. Without proof that the respondent knew of the decree and wilfully refused to comply, the statutory ground under Section 13(1-A)(ii) could not be invoked. The Family Court's finding was not perverse but a reasonable inference from the evidence.
"The evidence available on record does not disclose the existence of animus deserendi on the part of the respondent. Rather, the materials on record, including her categorical assertion expressing willingness to reside with the appellant, indicate that her separate residence was not driven by an intention to forsake the marital relationship permanently, but was a consequence of the prevailing circumstances."
The Verdict
The appeal was dismissed. The Court upheld the Family Court's judgment dated 19 March 2025 dismissing the divorce petition. The appellant's prayer for a decree of divorce under Section 13(1-A)(ii) of the Hindu Marriage Act was rejected. Pending interlocutory applications, if any, were disposed of. No costs were awarded.
What This Means For Similar Cases
Knowledge of Decree Is a Prerequisite for Section 13(1-A)(ii)
A decree-holder seeking divorce under Section 13(1-A)(ii) must prove that the other spouse had actual knowledge of the restitution decree. An ex parte decree, without evidence of service or awareness, cannot serve as the foundation for a divorce petition. Practitioners must ensure proper service is effected and documented, or at minimum, lead evidence demonstrating the respondent's knowledge of the decree.
- File execution proceedings or at least issue formal notice of the decree to the respondent.
- Preserve proof of service, acknowledgment, or any communication referencing the decree.
- Without knowledge, the statutory period of "one year or upwards" cannot be said to run against the respondent.
Wilful Refusal and Animus Deserendi Must Be Established
Mere physical separation for the statutory period is insufficient. The decree-holder must prove the respondent's wilful refusal to resume cohabitation coupled with an intention to desert the marriage permanently (animus deserendi). Where the respondent expresses willingness to cohabit and the separation is attributable to matrimonial discord, litigation, or compelling circumstances, the ground fails.
- Lead evidence of specific acts of refusal after knowledge of the decree.
- Document the respondent's statements or conduct demonstrating a settled intention to end the marriage.
- Be prepared to rebut claims that separation stems from cruelty, litigation, or external pressures.
Bona Fide Efforts at Enforcement Strengthen the Case
The Court noted the appellant's failure to take any steps to execute the restitution decree for over two years before filing the divorce petition. While not a statutory requirement, bona fide enforcement efforts demonstrate the decree-holder's genuine desire for restitution and undermine any suggestion that the decree was obtained merely as a stepping stone to divorce.
- Initiate execution proceedings under Order 21 Rule 32 CPC promptly after the decree.
- Maintain a record of all attempts to enforce the decree and restore cohabitation.
- Avoid unexplained delays between the decree and the divorce petition that may suggest lack of bona fides.
