In Mithilesh Kumar v. Rita Devi (F.A. No. 148 of 2025, neutral citation 2026:JHHC:32489-DB, pronounced 5 November 2026), a Division Bench of the Jharkhand High Court — Justices Sujit Narayan Prasad and Akhil Kumar — dismissed a husband’s appeal against the Family Court’s refusal of divorce under Section 13(1)(1-A)(ii) of the Hindu Marriage Act, 1955. The husband’s case rested on an ex parte restitution decree of 2016 and the wife’s alleged non-compliance; the courts found neither wilful non-compliance nor the intention to desert proved, and declined to find any perversity in the trial court’s findings.
The case in one view
| Case | Mithilesh Kumar v. Rita Devi, F.A. No. 148 of 2025 |
|---|---|
| Citation | 2026:JHHC:32489-DB |
| Bench | Justices Sujit Narayan Prasad and Akhil Kumar, Jharkhand High Court |
| Decided | Reserved 29 September 2026; pronounced 5 November 2026 |
| Below | Judgment of 19 March 2025, Additional Principal Judge, Family Court-I, Ranchi, in O.S. No. 270 of 2019, dismissing the husband’s divorce petition |
| Outcome | Appeal dismissed under Section 19(1), Family Courts Act |
The background
The parties married in 1995 and have two sons. The marriage ran into the familiar sequence of cross-proceedings: the wife’s complaint under Section 498A IPC (settled through JHALSA-mediated terms in connected anticipatory bail proceedings), her maintenance petition at Dhanbad under Section 125 CrPC, and the husband’s restitution suit, which produced an ex parte decree on 11 November 2016. When cohabitation did not resume, the husband filed for divorce in April 2019 under Section 13(1)(1-A)(ii) HMA, relying on the wife’s non-compliance with the restitution decree. The Family Court dismissed the suit in March 2025.
What the Division Bench held
The appeal failed on the facts and on the standard of review. On the facts: “the appellant has not adduced any cogent and reliable evidence that the respondent-wife had not resumed” conjugal life (para 61), and the evidence “does not disclose the existence of animus deserendi” on her part (para 62). On the standard: “Perversity is a high threshold for intervention, distinguishing it from a mere error of fact or law” (para 33), and the Family Court’s appraisal crossed no such threshold (para 63). The appeal was dismissed (para 64), with pending applications disposed of.
The conduct finding: the husband — employed with the Railways — commenced maintenance payments only after his revision against the 10 June 2016 Dhanbad order was dismissed in July 2020. The Bench read this as reflecting a “lack of concern towards the maintenance and educational needs of his wife and children” (para 52). In a 13(1A) case, where the petitioner effectively pleads the breakdown that followed his own decree, such findings corrode the claim.
Section 13(1A)(ii): right, but not self-executing
Section 13(1A)(ii) HMA entitles either party to seek divorce where restitution has not occurred for a year after the decree. Two misconceptions recur in practice. First, that the decree itself proves non-resumption — it does not; the petitioner must prove the fact of non-restitution and that it is not the product of his own refusal or obstruction. Second, that an ex parte decree is as good as a contested one for this purpose — formally it is, but courts scrutinise what the decree-holder actually did afterwards: letters, visits, attempts at mediation, payment of maintenance, provision for children. A decree-holder who obtained his decree in the respondent’s absence, paid maintenance only under compulsion, and then presented the lapse of time as desertion will meet exactly the reception this appellant met.
The appellate lens
The Bench grounded its approach in the settled first-appeal framework — Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497, and allied authority — under which findings of fact by the Family Court are respected unless shown perverse. Matrimonial appeals are not re-trials; the appellant’s task is to identify a finding no reasonable court could have reached, and conflicting testimony about dates of separation and payment quantum (of which this record had its share) is precisely the material on which the trial court’s assessment prevails.
Takeaways
- Build the post-decree record: a restitution decree begins, not ends, the evidentiary task for a later 13(1A)(ii) petition.
- Maintenance conduct is read as character evidence of matrimonial sincerity — arrears and resisted orders will be quoted back.
- Delay between decree and divorce petition (here over two and a half years) invites the question of what the petitioner did in the interval.
- Frame first appeals around perversity, with specific findings targeted — generalised re-argument of the evidence fails.
Frequently Asked Questions
What is the ground under Section 13(1A)(ii) HMA?
Either spouse may seek divorce where there has been no restitution of conjugal rights for one year or more after a restitution decree. But the jurisprudence requires the petitioner to come with clean hands: a spouse cannot found divorce on non-compliance that his own conduct produced, and the facts of non-resumption must be proved, not assumed from the decree.
Why did the husband's appeal fail?
The Division Bench held he had not adduced cogent and reliable evidence that the wife failed to resume conjugal life, and that the record did not disclose animus deserendi — the intention to desert — on her part. The appeal standard also mattered: perversity is a high threshold, distinguishing it from a mere error of fact or law, and the Family Court's findings crossed no such line.
Did the maintenance history affect the outcome?
The court noted that the husband, a Railways employee, began paying maintenance only after his revision against the 2016 Dhanbad maintenance order was dismissed in 2020, observing that this conduct reflected a lack of concern for the maintenance and educational needs of his wife and children. Conduct inconsistent with matrimonial obligation undercuts a petitioner's equity in a 13(1A) case.
What is the practical lesson for restitution-decree strategies?
An ex parte restitution decree followed by silence is a fragile foundation. The petitioner must show genuine attempts at resumption, the respondent's unjustified refusal, and a record consistent with his own willingness to perform marital obligations — including maintenance. Delay also tells: here the divorce suit came more than two and a half years after the decree.