A first appeal against a matrimonial decree is a rehearing on facts and law, and when the trial court's judgment ignores the evidence actually led, the appellate court can do more than send the case back — it can decide it. In Rekha Kumari @ Rekha v. Rakesh Kumar (First Appeal No. 247 of 2026, decided 9 October 2026), a Division Bench of the Jharkhand High Court set aside a Family Court judgment that had dismissed a wife's divorce case even though the husband never appeared to contest it, found the dismissal perverse, and granted the decree of dissolution itself. The judgment is a clear statement of two propositions: unrebutted, credible testimony of cruelty cannot simply be brushed aside, and a wife driven out by cruelty does not thereby "desert" her husband.
The background
The parties married in October 2010 in a registered marriage at Jamshedpur and have a daughter and a son. The wife’s case was one repeated in family courts across the country: the husband drank heavily, assaulted her over money, 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 and has lived with her parents since, supporting the household on her earnings as a nurse. She complained to the police in February 2024, though no FIR was registered, and filed for divorce in 2024 under Section 27(1)(b) and (d) of the Special Marriage Act — desertion and cruelty.
The husband never appeared before the Family Court despite service. Remarkably, the Family Court nonetheless dismissed her suit ex parte in February 2026. She appealed under Section 19(1) of the Family Courts Act. The husband, served again in appeal, again stayed away.
The appellate court’s powers
The Division Bench — Justice Sujit Narayan Prasad and Justice Sanjay Prasad — began from first principles: a first appeal is a continuation of the suit, and the appellate court may reappraise both facts and law, as under Section 96 CPC. Measured against the record, the Family Court’s judgment could not stand. The wife’s testimony about drinking, assaults and abandonment of financial responsibility was specific, consistent and wholly unrebutted; the police complaint corroborated it; and the husband’s deliberate abstention despite valid service spoke for itself. A judgment that dismisses such a case without engaging with the evidence is perverse — and the Bench quashed it in terms.
The husband filed nothing and appeared for nothing; the wife’s account stood unchallenged on the record.
The absence of a registered FIR did not discredit her testimony about the complaint she made.
Her leaving the home was driven by cruelty — compelled, not voluntary — so it was not desertion by her.
Rather than remitting the case for a fresh round, the Bench granted the dissolution itself.
The desertion point
The judgment’s most useful doctrinal passage concerns desertion. A spouse who leaves the matrimonial home under compulsion — violence, expulsion, intolerable conduct — does not desert. The Bench held in terms that the wife’s departure was “under compelling circumstances and not the voluntary one.” Desertion requires both separation and animus deserendi on the part of the spouse alleged to have deserted; where the petitioner herself was ousted, the conduct constituting cruelty also answers any suggestion that she abandoned the marriage.
The Court was careful with consequential rights. The decree dissolves the marriage, but the children’s inheritance rights remain intact, and the wife’s right to claim maintenance for the children before the appropriate forum is expressly preserved. A divorce decree settles status; it does not erase the children’s entitlements.
Practical lessons
An ex parte trial still needs proof — and proof deserves findings. Even uncontested matrimonial cases must be proved by evidence, but once credible evidence is on record unchallenged, a court cannot dismiss the case without engaging with it. If it does, first appeal is the remedy, and the appellate court can grant the decree itself.
Plead and prove the compulsion. Where a petitioner left the home, the petition should squarely plead the circumstances that compelled departure, so that the desertion analysis runs against the respondent’s conduct rather than the petitioner’s absence.
Corroboration helps even when informal. A police complaint, medical records or contemporaneous messages need not have matured into an FIR to support credibility in a matrimonial cause tried on preponderance of probabilities.
Frequently Asked Questions
Why was this divorce case under the Special Marriage Act and not the HMA?
The marriage was registered before the Marriage Officer at Jamshedpur in 2010, so dissolution was sought under Section 27 of the Special Marriage Act, 1954 — specifically clauses (b) and (d), desertion and cruelty. The grounds broadly parallel Sections 13(1)(i-b) and 13(1)(i-a) of the Hindu Marriage Act, and the Court treated the two regimes as analogous for the purpose of the legal standards.
What made the Family Court's dismissal "perverse"?
The wife's evidence — sustained drinking and assaults by the husband, his refusal to work or support the family after 2015, her expulsion from the home with the children in 2018, and a police complaint in 2024 — went entirely unrebutted because the husband never appeared despite service. The Family Court nonetheless dismissed the suit without properly considering this material. A finding that ignores unchallenged evidence on the record is perverse and liable to be set aside on first appeal.
Does the absence of an FIR weaken a cruelty case?
Not by itself. The High Court held that the lack of a formally registered FIR did not discredit the wife's testimony about the police complaint she made. In matrimonial causes, the standard is preponderance of probabilities on credible testimony, not proof backed by criminal registration.
What happened to maintenance and the children's rights?
The Court granted only what was sought: dissolution. It recorded that the wife had not claimed maintenance for herself, left open her right to claim maintenance for the children before the appropriate forum, and clarified that the children's inheritance rights remain intact notwithstanding the divorce.