Matrimonial appeals often reduce to a single question: did the petitioner prove the ground, or merely narrate it? On 29 October 2026, in Ashwini Kumar v. Roma Kumari, F.A. No. 65 of 2024 (neutral citation 2026:JHHC:31755-DB), a Division Bench of the Jharkhand High Court comprising Justices Sujit Narayan Prasad and Pradeep Kumar Srivastava dismissed a husband's appeal against the Family Court's refusal to dissolve his marriage on grounds of cruelty and desertion under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955. The judgment is a compact restatement of where the burden lies and what quality of evidence discharges it.
The rival narratives
The parties married in June 2017. On the husband's version, the wife stayed barely a week in the matrimonial home, refused to join him at his places of posting, visited only briefly in 2018, demanded Rs. 50 lakh after his father's retirement, and finally left in June 2020, never to return. On the wife's version, she was pushed out by dowry-related harassment — she had lodged a criminal case to that effect — and remained willing to resume married life with her husband and in-laws.
The Family Court at Deoghar believed neither cruelty nor desertion had been proved and dismissed the husband's suit in January 2024. The High Court, on first appeal, agreed.
How the Division Bench tested the grounds
The husband's declaration that he would not take the wife back even on a written undertaking proved costly: it undercut his claim of having sought to preserve the marriage and coloured the court's reading of both grounds.
The doctrine beneath the outcome
Three settled propositions carried the day. First, matrimonial relief is proved, not presumed: the petitioner's burden under Section 13 does not lighten because the marriage has broken down in fact. Second, cross-pollination between criminal and matrimonial proceedings is impermissible shorthand — a 498A case (now Section 85 of the Bharatiya Nyaya Sanhita, 2023) is not evidence of cruelty by the husband, and its mere pendency is equally not evidence of cruelty by the wife. Each forum decides on its own record. Third, desertion is a state of mind as much as a state of affairs: physical separation for years does not amount to desertion where the separation is attributable to the petitioner's own conduct or where the respondent's willingness to return is on record.
For practitioners, the judgment is also a lesson in witness selection. Supporting witnesses who were not present at the matrimonial home, and who depose to what they were told, add volume but not weight; the absence of any contemporaneous complaint — to family elders, a panchayat or the police — leaves an allegation of sustained cruelty hanging in the air.
Practical pointers
Plead cruelty with dates, places and witnesses who can speak from personal knowledge; contemporaneous complaints and records matter more than recollection at trial.
Do not rely on the existence of criminal proceedings, in either direction; prove the underlying facts in the matrimonial trial itself.
For desertion, build the two-year timeline carefully and be ready to prove the respondent's intention to abandon — letters, notices and the response to a restitution offer are the usual materials.
Watch the petitioner's own conduct: an offer to resume cohabitation refused outright can decide an appeal.
Frequently Asked Questions
Who bears the burden of proof in a divorce case?
The spouse seeking dissolution. The court held in terms that the burden of establishing the grounds for dissolution of marriage rests upon the spouse seeking such relief. If the evidence leaves the ground in genuine doubt, the petition fails — the respondent need not prove the marriage worked.
Does a dowry demand allegation or criminal case between spouses prove cruelty?
Not by itself. The court observed that a criminal case does not, by itself, establish either the truth or the falsity of the allegations made in it. The underlying facts must still be proved in the matrimonial trial by cogent and convincing evidence.
What are the legal ingredients of desertion?
Desertion requires the factum of separation and the animus deserendi — the intention to bring cohabitation permanently to an end — without reasonable cause and without the consent of the other spouse, continuing for at least two years before the petition. Where the spouses genuinely dispute why they live apart, the petitioner's burden is not discharged.
Why did the husband's own stand hurt his case?
He stated he would not take the wife back even against a written undertaking. The court treated this as casting doubt on his claim that he had tried to restore the matrimonial relationship — a petitioner's conduct is itself evidence in a cruelty and desertion enquiry.