Section 13(1)(i-b) Hindu Marriage Act | Divorce Petition Filed Before Completion Of Two-Year Statutory Desertion Period Is Not Maintainable: Patna High Court

"The statutory requirement is that the respondent must have deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition." Patna High Court, in a significant ruling dated October 8, 2026, affirmed that a divorce petition filed on the ground of desertion is not maintainable if it is presented before the completion of the mandatory two-year statutory period as prescribed under Section 13(1)(i-b) of the Hindu Marriage Act, 1955.

A division bench of Justice Bibek Chaudhuri and Justice Rana Vikram Singh held that desertion is a "continuing offence," and the cause of action for a divorce petition on this ground does not crystallize until the statutory period of two years has elapsed immediately preceding the filing of the suit.

The appellant husband had filed for dissolution of marriage before the Family Court, Saharsa, citing grounds of cruelty and desertion. He alleged that his wife had abandoned the matrimonial home on July 1, 2020, and filed the divorce petition on December 4, 2020. The Family Court dismissed the petition, noting that the appellant failed to prove the allegations of cruelty and that the desertion period was insufficient to satisfy the statutory mandate.

The primary issues before the High Court were whether the appellant had established the ground of "cruelty" under Section 13(1)(i-a) and whether the claim of "desertion" under Section 13(1)(i-b) was maintainable given the timeline of the separation.

Court Explains Nature Of Cruelty In Matrimonial Law

The court observed that while "cruelty" is not defined under the Act, judicial pronouncements have established that it must be grave and weighty, distinguishing it from the ordinary "wear and tear" of marital life. Relying on Samar Ghosh vs. Jaya Ghosh, the bench emphasized that mental cruelty is a complex state of mind and must be evaluated through the lens of the parties' social, financial, and cultural status. The court held that isolated quarrels, temperamental differences, or mere incompatibility do not constitute cruelty.

No Evidence To Prove Misuse Of Funds

Regarding the appellant’s specific allegation that the respondent wife diverted family maintenance funds to her parents, the court found the claim unsubstantiated. The appellant admitted during cross-examination that he never utilized formal banking channels or money orders to provide maintenance, but rather handed cash to the respondent. The bench noted that without objective evidence, such claims remain unproved and do not meet the threshold of cruelty.

Statutory Requirement For Desertion

The court underscored that Section 13(1)(i-b) requires the deserting spouse to have been absent for a continuous period of not less than two years immediately preceding the presentation of the petition. The court clarified that the presence of animus deserendi (intention to abandon) must coincide with this statutory duration. Because the appellant himself pleaded that the separation began in July 2020 and the petition was filed in December 2020, the claim was fundamentally premature.

Court Rejects Premature Petition

The bench held that since the statutory period of two years had not elapsed by the date of the filing, the divorce petition on the ground of desertion was legally untenable. The bench stated that the expression "more than two years" cannot be circumvented by pleadings that contradict the statutory timeline. Consequently, the High Court affirmed the lower court’s decision to dismiss the divorce petition, noting that the appellant had failed to establish either of the pleaded grounds for dissolution.

Date of Decision: 08 October 2026