A wife who is driven out of her matrimonial home occupies a cruel legal paradox: the husband who expelled her may later brand her the deserter. The Jharkhand High Court's judgment of 9 October 2026 in F.A. No. 247 of 2026 dismantles that argument. Allowing a nurse's appeal against the dismissal of her divorce suit under the Special Marriage Act, 1954, the Division Bench held that departure under compulsion is not desertion, that a formal FIR is not the price of being believed on cruelty, and that a husband who never appears to contest cannot profit from the vacuum.
The marriage and its breakdown
The parties married on 20 October 2010 and registered the marriage before the Marriage Officer at Jamshedpur under the Special Marriage Act, 1954, while also performing Hindu rites. Two children were born, in 2012 and 2015. On the wife's case, the marriage deteriorated after the second child: the husband drank heavily, abused and assaulted her, and after his father's death in 2015 stopped working and supporting the family altogether. On 15 March 2018 she was driven out of the matrimonial home with the children. She has since lived with her parents, supporting the household on her earnings as a nurse, and lodged a police complaint in February 2024 before filing for divorce.
Despite valid service, the husband never appeared — not before the Additional Principal Judge, Additional Family Court No. 1, Jamshedpur, and not before the High Court. The Family Court nonetheless dismissed her suit (Original Suit No. 59 of 2024) by judgment of 9 February 2026, unimpressed by the absence of contemporaneous police action and treating her long stay at her parental home as desertion on her part.
Where the Family Court went wrong
Family Court
No FIR at the time of the alleged assaults, so the cruelty evidence is doubtful; the wife left in 2018 and stayed away, so she is the deserting spouse.
High Court
Non-institution of an FIR cannot by itself discredit sworn testimony — the finding was perverse. Departure compelled by cruelty is not wilful abandonment; the desertion operates against the spouse who caused it.
On cruelty, the Bench — Justice Sujit Narayan Prasad writing — held that the Family Court's appreciation of evidence was perverse: the mere fact of non-institution of a formal First Information Report cannot, by itself, be treated as a ground to discredit the wife's testimony. Indian matrimonial reality supplies the reason. Spouses, particularly those with children, routinely endure abuse for years without criminalising the household; the law of divorce does not demand that they should have.
On desertion, the Court applied the classical two-element test — the factum of separation and the animus deserendi, persisting through the statutory period — and found both pointing at the husband. The wife's departure from the matrimonial home could not be construed as a wilful abandonment of the husband; it was, in the Court's words, under compelling circumstances and not voluntary. A spouse compelled to leave by cruelty is the victim of constructive desertion, not its author.
The ex parte dimension
The husband's complete absence gave the appeal an unusual texture: there was no rival narrative at all, only the Family Court's own scepticism standing between the wife and a decree. The judgment is a reminder that even in uncontested matrimonial cases the petitioner must prove the ground — matrimonial relief does not follow by default — but equally that judicial scrutiny of an unrebutted, consistent account must stay within the bounds of reasonable appreciation. Scepticism untethered from the record is perversity, and a Division Bench hearing a first appeal under Section 19(1) of the Family Courts Act, 1984 will interfere.
Appeal allowed; the judgment of 9 February 2026 and decree of 16 February 2026 quashed and set aside.
The marriage dissolved under Section 27(1)(b) and (d) of the Special Marriage Act, 1954; the Registry directed to draw up the decree of dissolution.
The children's inheritance rights expressly preserved.
Liberty reserved to the wife to claim maintenance for the minor children in the appropriate forum.
What practitioners should take from it
Three working rules emerge. First, plead and prove the compulsion behind any departure from the matrimonial home — dates, incidents, witnesses, and the financial reality that followed — because the desertion analysis turns on who caused the separation, not who physically walked out. Second, do not let the absence of an FIR dominate the narrative; contemporaneous complaints help, but their absence is explicable and the High Court has now said so in terms. Third, in ex parte matrimonial trials, build the record as though the case were contested: it is the court, not the absent respondent, that must be satisfied, and a thin record invites exactly the dismissal that occurred here before it was corrected in appeal.
Delhi practice note: appeals from Family Court decrees in Delhi lie to a Division Bench of the Delhi High Court under Section 19 of the Family Courts Act, 1984, ordinarily within thirty days. The grounds of cruelty and desertion under Section 13 of the Hindu Marriage Act are construed on materially identical principles.
Frequently Asked Questions
Which law applied — the Hindu Marriage Act or the Special Marriage Act?
The parties had registered their marriage before the Marriage Officer under the Special Marriage Act, 1954, besides performing Hindu rites, so the wife sought divorce under Section 27(1)(b) and (d) of that Act — desertion and cruelty. The grounds mirror Section 13(1)(ia) and (ib) of the Hindu Marriage Act, and the reasoning travels across both statutes.
Is an FIR necessary to prove cruelty in a divorce case?
No. The High Court held that the mere fact that no formal FIR was instituted cannot, by itself, be treated as a ground to discredit the spouse's testimony. Matrimonial cruelty is proved by evidence appreciated on the preponderance of probabilities; many spouses endure years of abuse without approaching the police, and the Family Court's contrary approach was held perverse.
Can a spouse who left the matrimonial home be granted divorce?
Yes, where the departure was compelled. Desertion requires the intention to abandon the marriage (animus deserendi) without reasonable cause. A spouse who leaves because of the other's cruelty acts under compelling circumstances; the Court held such departure cannot be construed as wilful abandonment, and in law the deserter is the spouse whose conduct forced the exit.
What happens to children and maintenance after such a decree?
The decree dissolved the marriage while expressly preserving the children's inheritance rights, and left the wife free to pursue maintenance for the minor children in the appropriate forum — under Section 144 BNSS (formerly Section 125 CrPC) or the personal-law and statutory remedies available in the Family Court.