Desertion and Cruelty in Divorce Must Be Proved: Rajasthan HC in Laxmi v. Dhulji

In Laxmi v. Dhulji alias Dhuleshwar (2026:RJ-JD:49555-DB), the Rajasthan High Court at Jodhpur set aside a divorce decree because cruelty and desertion under Section 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 had not been proved by the husband (paras 9–11, 14). A Division Bench of Justice Arun Monga and Justice Sunil Beniwal allowed the wife's appeal against the Family Court, Banswara decree dated 19.12.2025 (paras 1, 14–15). The Bench held that a cruelty finding cannot stand once the only evidence (an uncertified pen drive) is excluded, and that an acquittal under Section 498-A IPC does not prove cruelty by the wife (para 9). It further held that statements recorded in a criminal case cannot be read in divorce proceedings unless the conditions of Section 33 of the Evidence Act / Section 27 of the Bharatiya Sakshya Adhiniyam, 2023 are shown, and that the Family Court wrongly reversed the burden of proof on desertion (paras 10–11).

Headnote: Desertion and Cruelty in Divorce

Hindu Marriage Act, 1955 – Sections 13(1)(ia), 13(1)(ib) – Indian Evidence Act, 1872 – Section 33 – Bharatiya Sakshya Adhiniyam, 2023 – Section 27 – Indian Penal Code, 1860 – Sections 498-A, 323 – Divorce on grounds of cruelty and desertion – Electronic evidence excluded – Effect of acquittal – Evidence from earlier criminal proceeding – Burden of proof – Animus deserendi.

Held: (i) A finding of cruelty must identify the conduct of the spouse that amounts to cruelty; where the only evidence (a pen drive) was excluded for want of the electronic-evidence certificate and nothing else was led, the finding "has no footing" (para 9).

(ii) An acquittal of the husband under Sections 498-A and 323 IPC only means the prosecution failed to prove its case beyond reasonable doubt; it does not show that the wife treated the husband with cruelty (para 9).

(iii) Cruelty under Section 13(1)(ia) must be grave and weighty, such that the aggrieved spouse cannot reasonably be expected to live with the other (para 9).

(iv) Statements of witnesses recorded in an earlier criminal case, who never entered the witness box before the Family Court, can be read only within the narrow limits of Section 33 of the Evidence Act, now Section 27 of the Bharatiya Sakshya Adhiniyam, 2023; those conditions were neither pleaded nor shown (para 10).

(v) The burden to prove separation, intention to end cohabitation permanently, absence of consent and absence of reasonable cause rests on the spouse alleging desertion; requiring the wife to prove reasonable cause reverses that burden (para 10).

(vi) A wish for a separate dwelling alone does not prove an intention to end the marriage forever; a conclusion resting on inference, not proof, cannot sustain a divorce decree (para 11).

(paras 8–15)

Case Details: Laxmi v. Dhulji (2026:RJ-JD:49555-DB)

Final Outcome: Appeal allowed; judgment and decree dated 19.12.2025 of the Family Court, Banswara in Divorce Petition No. 79/2021 set aside; pending applications disposed of.

Effect on lower order: Family Court, Banswara decree dated 19.12.2025 set aside (para 14).

Case: Laxmi w/o Dhul Ji alias Dhuleshwar v. Dhulji alias Dhuleshwar

Neutral Citation: 2026:RJ-JD:49555-DB

Case No.: D.B. Civil Miscellaneous Appeal No. 422/2026

Court: Rajasthan High Court, Jodhpur (Division Bench)

Date of Decision: 9 October 2026

Bench: Justice Arun Monga and Justice Sunil Beniwal (authored by Justice Arun Monga)

Relevant Acts & Sections: Hindu Marriage Act, 1955 – Sections 13, 13(1)(ia), 13(1)(ib); Indian Evidence Act, 1872 – Sections 33, 65; Bharatiya Sakshya Adhiniyam, 2023 – Section 27; IPC, 1860 – Sections 498-A, 323

Impugned Order: Judgment and decree dated 19.12.2025 of the Family Court, Banswara in Divorce Petition No. 79/2021, dissolving the marriage on grounds of cruelty and desertion

Source: Rajasthan High Court (official website)

Key Holdings of the Rajasthan High Court

• A cruelty finding must say which act of the spouse amounted to cruelty; a bare allegation, once its only evidence is excluded, cannot support a decree (para 9).
• Acquittal of the husband in a Section 498-A IPC case does not establish cruelty by the wife (para 9).
• Cruelty under Section 13(1)(ia) must be grave and weighty, making continued cohabitation unreasonable (para 9).
• Criminal-trial statements of witnesses not examined before the Family Court cannot be used without satisfying Section 33 of the Evidence Act / Section 27 of the Bharatiya Sakshya Adhiniyam, 2023 (para 10).
• The spouse alleging desertion must prove separation, animus deserendi, absence of consent and absence of reasonable cause; the burden cannot be shifted to the other spouse (para 10).
• A wish for a separate home does not prove desertion; surrounding circumstances must be weighed (para 11).

Brief Facts of the Case

The parties were married on 11.05.2005 and have a son. The husband filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955, alleging mental and physical cruelty and that the wife had left the matrimonial home with their son about six years before the petition, without justifiable reason (paras 1–2).

The wife denied the allegations. She said the husband had subjected her to cruelty over dowry demands, withheld household expenses and made allegations against her character. She claimed she was forcibly turned out of the matrimonial home on 12.11.2015, which led to FIR No. 01/2016 under Sections 498-A and 323 IPC. She maintained that the husband's acquittal in that case did not negate matrimonial cruelty, relied on a Gram Nyayalaya, Garhi order directing maintenance of Rs. 3,000 per month, and expressed willingness to resume married life (para 2.1).

The Family Court framed issues on cruelty and desertion (para 6). It relied heavily on the criminal-case record: the husband's acquittal by the Gram Nyayalaya, Garhi on 17.12.2020 and the statements of the wife's parents and independent witnesses (Exhibits 2 to 6), which it read as showing that she would live with the husband only if he bought a plot and built a room (para 7). It refused to read the pen drive (Exhibit 8) containing alleged phone conversations because the electronic-evidence certificate had not been filed despite its order dated 30.07.2025 (para 7). Even so, it held both cruelty and desertion for more than two years proved and dissolved the marriage on 19.12.2025 (paras 2.2, 7).

During the appeal, a Co-ordinate Bench on 06.08.2026 directed both parties to appear to explore mediation and restrained the husband from remarrying on the strength of the decree (para 12).

Issues Before the High Court

1. Whether the Family Court's finding of cruelty under Section 13(1)(ia) of the Hindu Marriage Act was supported by evidence (para 9).
2. Whether the husband's acquittal under Sections 498-A and 323 IPC could establish cruelty by the wife (para 9).
3. Whether statements recorded in the criminal case could be used to prove desertion in the divorce proceedings (para 10).
4. Whether the Family Court correctly placed the burden of proof on desertion under Section 13(1)(ib) (paras 10–11).

Court's Findings and Reasoning

Arguments (paras 3–4): The wife's counsel argued that cruelty and desertion were never established, the allegations were vague, and the Family Court recorded no findings on the nature of cruelty, animus deserendi or the statutory period. He added that the husband had abandoned the wife and son, and that non-payment of maintenance amounted to economic cruelty (paras 3–3.2). The husband's counsel supported the Family Court's judgment as based on the material on record (para 4).

Cruelty not identified or proved (para 9): The Bench noted that the Family Court held cruelty proved without saying which act of the wife amounted to cruelty. The husband's case rested mainly on her alleged phone conversations with objectionable persons. The Family Court itself excluded the pen drive for want of the certificate, and no other evidence was led. Once that evidence went out, the allegation "stood bare", and the finding of cruelty had no footing (para 9).

Acquittal is not proof of cruelty by the wife (para 9): An acquittal under Sections 498-A and 323 IPC only means the prosecution failed to prove the charge beyond reasonable doubt. It does not show that the wife treated the husband with cruelty. The Court restated that cruelty under Section 13(1)(ia) must be grave and weighty, and the impugned judgment spelled out no such conduct (para 9).

Criminal-case statements cannot substitute evidence (para 10): On desertion, the Family Court leaned almost wholly on the criminal record, treating the statements of the wife's parents and three other witnesses (Exhibits 2 to 6) as proof of her motive. None of them entered the witness box before the Family Court, and their statements were never tested by cross-examination there. Under Section 27 of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 33 of the Evidence Act), such evidence is relevant only where the witness is unavailable for the stated reasons and the parties, right to cross-examine and issues were substantially the same. These conditions were "neither pleaded nor shown" (para 10).

Burden of proof on desertion reversed (para 10): The Family Court held that the wife failed to prove a reasonable cause for living separately. The High Court held that this reverses the burden. Desertion requires the fact of separation, an intention to bring cohabitation permanently to an end, absence of consent and absence of reasonable cause, and the spouse alleging desertion must prove each of these (para 10).

Inference is not proof (para 11): Even if the wife wanted a separate dwelling, that wish alone does not show an intention to end the marriage forever. The husband admitted a social meeting on 10.11.2015 to bring her back, which he had not pleaded, and the wife says she was turned out two days later on 12.11.2015. These facts needed close scrutiny that the Family Court did not undertake. The wife had raised their son alone, stated her willingness to resume married life, and alleged non-payment of court-ordered maintenance. These circumstances did not sit well with a finding of desertion without cause; the Family Court did not weigh them, and its conclusion rested "on inference, not on proof" (para 11).

Conduct of the husband during the appeal (paras 12–13): Before parting, the Bench recorded that the wife, with her minor son, travelled about 400 kilometres from Banswara to appear in person under the 06.08.2026 order, while the husband did not appear and gave no advance intimation, causing her needless travel expense. The Court called this failure of courtesy "unbecoming" and noted that he was paying only Rs. 3,000 per month for both the wife and the minor son (paras 12–13).

Final Outcome and Directions

• Judgment and decree dated 19.12.2025 passed by the Family Court, Banswara in Divorce Petition No. 79/2021 set aside.
• Civil Miscellaneous Appeal allowed.
• All pending applications disposed of.
• No order as to costs is recorded in the judgment.

Legal Principle Laid Down

A decree of divorce under Section 13(1)(ia) or 13(1)(ib) of the Hindu Marriage Act, 1955 must rest on proof, not inference. The petitioning spouse must identify and prove grave and weighty conduct amounting to cruelty; an acquittal in a Section 498-A IPC case does not by itself establish cruelty by the complainant spouse. For desertion, the burden lies on the petitioner to prove separation, animus deserendi, absence of consent and absence of reasonable cause; the respondent spouse cannot be required to justify living apart. Statements of witnesses recorded in an earlier criminal proceeding are admissible in the divorce case only when the conditions of Section 33 of the Indian Evidence Act, 1872 / Section 27 of the Bharatiya Sakshya Adhiniyam, 2023 are pleaded and shown.

Precedents Relied Upon

• No case law is cited or discussed in the judgment. The Bench decided the appeal on the statutory text and the trial record.
• Section 27, Bharatiya Sakshya Adhiniyam, 2023 (corresponding to Section 33, Indian Evidence Act, 1872) – Applied – conditions for reading evidence from an earlier proceeding. Reproduced and discussed at para 10.
• Sections 13(1)(ia) and 13(1)(ib), Hindu Marriage Act, 1955 – Applied – standards for cruelty and desertion. Discussed at paras 3, 9–11.
• Section 65, Indian Evidence Act, 1872 (as referred to by the Family Court) – Referred – electronic-evidence certificate; pen drive excluded. Discussed at paras 7, 9.

Important Paragraphs of the Judgment

Verbatim extracts from the judgment. For the full text, refer to the judgment PDF below.

Para 9: "Once that evidence went out, the allegation stood bare. Yet cruelty was held proved. That finding has no footing."

Para 9: "An acquittal only means that the prosecution failed to prove the charge beyond reasonable doubt. It does not show that the wife treated the husband with cruelty."

Para 9: "Cruelty under Section 13(1)(ia) of the Act must be grave and weighty. It must be such that the aggrieved spouse cannot reasonably be expected to live with the other."

Para 10: "The burden to prove each of these rests on the spouse who alleges desertion."

Para 11: "Its conclusion rests on inference, not on proof."

Practical Impact of the Ruling

• For Family Courts: A divorce judgment must record specific findings on the act of cruelty, the factum of separation, animus deserendi and the statutory period. A general conclusion that "both grounds are proved" will not survive appeal (paras 9–11).
• For husbands and wives seeking divorce: Electronic evidence such as call recordings on a pen drive must be accompanied by the certificate required by law. If it is excluded and no other proof is led, the cruelty ground may fail entirely (para 9).
• For divorce lawyers and family law advocates: Do not rely on the record of a dowry or Section 498-A case to prove matrimonial misconduct. Witnesses must be examined afresh, or the Section 27 BSA conditions must be specifically pleaded and proved (para 10).
• For spouses defending a desertion petition: The petitioner carries the burden on every element of desertion. A respondent spouse need not prove a reasonable cause for living apart before the petitioner has proved desertion (para 10).
• For litigants in matrimonial appeals: Non-appearance without intimation after a court-ordered mediation hearing may draw adverse remarks (paras 12–13).

FAQs on Desertion and Cruelty in Divorce

1. What did the Rajasthan High Court hold in Laxmi v. Dhulji?

It set aside a Family Court, Banswara divorce decree because the husband had not proved cruelty or desertion. The finding of cruelty had no evidentiary footing, and desertion was held proved by reversing the burden of proof and relying on untested criminal-case statements (paras 9–11, 14).

2. Does a husband's acquittal under Section 498-A IPC prove that the wife committed cruelty?

No. An acquittal only shows that the prosecution failed to prove the charge beyond reasonable doubt. It does not establish that the wife treated the husband with cruelty (para 9).

3. Can statements from a criminal case be used in divorce proceedings?

Only within the narrow limits of Section 33 of the Indian Evidence Act, 1872, now Section 27 of the Bharatiya Sakshya Adhiniyam, 2023. Those conditions must be pleaded and shown; otherwise the witnesses must be examined before the Family Court (para 10).

4. Who must prove desertion under Section 13(1)(ib) of the Hindu Marriage Act?

The spouse alleging desertion. That spouse must prove separation, an intention to end cohabitation permanently, absence of consent and absence of reasonable cause. The other spouse need not prove a reasonable cause for living separately (para 10).

5. Does a wife's demand for a separate home amount to desertion?

Not by itself. A wish for a separate dwelling does not show an intention to end the marriage forever, especially where she raised the child alone and was willing to resume married life (para 11).

Keywords: 2026:RJ-JD:49555-DB, Laxmi v. Dhulji, cruelty and desertion, Section 13 Hindu Marriage Act, Section 13(1)(ia), Section 13(1)(ib), animus deserendi, burden of proof desertion, Section 498-A acquittal, Section 27 Bharatiya Sakshya Adhiniyam, Section 33 Evidence Act, electronic evidence certificate, divorce appeal, Family Court Banswara, divorce lawyer Rajasthan, Justice Arun Monga, Justice Sunil Beniwal

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Download Judgment PDF – Laxmi v. Dhulji

Judgment PDF: 2026:RJ-JD:49555-DB – Laxmi v. Dhulji alias Dhuleshwar (D.B. Civil Misc. Appeal No. 422/2026) – Download Judgment PDF

Source: Rajasthan High Court (official website).

Read more: Rajasthan High Court · Family Law · Divorce