Jharkhand High Court
Niraj Kumar Singh vs Rashmi Rani Singh on 5 May, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:13504-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No.159 of 2022
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Niraj Kumar Singh, aged about 51 years, son of late Bedanand Singh,
resident of Vill+PO- Pakoriya, PS-Sambhuganj Dist.-Banka presently near
Soren Petrol Pump, in front of Kundani Agency, Chak Misharbandh, P.O.,
P.S. and District-Deoghar ....... ... Appellant
Versus
Rashmi Rani Singh, aged about 45 years, wife of Niraj Kumar Singh,
daughter of Gopal Prasad Singh, presently residing at Village+P.O.
Choutham, P.S.-Choutham, District-Khagaria, Bihar
... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Ms. Kehkashan Afsheen, Advocate
For the Respondent : Mr. Lakhan Chandra Roy, Advocate
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C.A.V on 22. 04.2025 Pronounced on 05/05/2025
Per Sujit Narayan Prasad, J.
The instant appeal under section 19(1) of the Family Courts Act,
1984 is directed against the judgment dated 14.12.2021 and the decree
dated 10.01.2022 passed in Original Suit No.280 of 2017 by the learned
Principal Judge, Family Court, Deoghar (in short, Family Judge) whereby
and whereunder the petition filed under section 13(1) (ia) of the Hindu
Marriage Act, 1955 by the appellant-husband against the respondent-wife
has been dismissed.
2. The brief facts of the case as pleaded in the plaint having been
recorded by the learned Family Judge, needs to be referred herein as:
(i) The marriage between the parties was solemnized on 2.6.1996 at
village-Choutha, according to Hindu Rites and Custom. After the
marriage the respondent-wife went to her matrimonial home and
2025:JHHC:13504-DBstarted to lead her conjugal life with the appellant-husband. The
marriage was consummated and one daughter, namely, Akansha
Kumari @ Shishu (aged about 19 years) and one son Shivam Kumar
(aged about 13 years) were born out of their wedlock.
(ii) The appellant and respondent lived happily for ten years thereafter
respondent started torturing the appellant-husband in various ways
with cruelty and she never treated him as husband and in spite of all
sort of torturing committed by her, he ignored all the things and
wanted to maintain sweet and harmonial relationship with her but
she did not amend her cruel behaviour with him
(iii) The father of appellant in his life time at his own income purchased
three kathas of land in the name of the respondent by registered sale
deed vide no. 2350, S.N.P 1506 dated 31.7.1999 from Nani Gopal
Jha in Mouja Chak Shri Mishr Bndh in S.P. Plot no. 78 J, B. No. 9/2
and one Katha purchased on 18.1.2001 in the name of the
respondent Vide Sale deed no. 3257 Serial no. 3451 in mouja
Rampur Plot no. 304(B) area 1504 Sq. Feet and one katha on
23.11.2002 in mouja Rampur area 3000 Sq. Feet from
Nagendranath Chakraborti and Ors vide Sale deed no. 3131. The
father of apellant also purchased the land in the name of Sweta Devi
wife of Purushottam Singh, who is brother of the appellant on
27.12.2004 vide Sale deed no. 3989 and one Katha in the name of
Rashmi Singh wife of Narottam Kumar Singh, who is the brother of
the appellant on 24.12.1996 vide Sale deed no. 3802.
(iv) The father of appellant wanted to make partition of the purchased
land between his sons, namely, Purshottam Singh, Narottam Singh
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and Niraj Kumar Singh (appellant herein) but the respondent did not
agree for the same and being aggrieved from the proposal of her
father-in-law. The respondent started quarreling with her husband
and after taking all the ornaments went to her parents’ house at
village- Choutham alongwith her chidlren in the month of January
2017 and since then she is residing at her parental home.
(v) The appellant tried his level best to resolve the disputes and went
several times to house of the respondent but she did not agree for
the same. The life of the appellant become hail due to ill behavior
of his wife.
(vi) There is no chance of restoration of his conjugal life. The respondent
has lodged a criminal case u/s 498A IPC against the appellant and
his all-family members bearing case no. G.R. 1108/2017 arising out
of Choutham P.S. Case no. 74 of 2017. The Police made enquiry
and found the allegation false.
3. The case of the respondent-wife as per the written statement needs to
refer herein which is being quoted as under:
(i) The respondent appeared in the proceeding before the learned
Family Judge and filed the written statement broadly denying the
allegations in the plaint.
(ii) The factum of their marriage and birth of child is admitted in the
written statement. The respondent has also denied allegation of the
appellant of cruelty. She alleged that to save his skin the appellant
has made the allegation of cruelty against her. It is also stated by her
that the appellant himself subjected extreme cruelty to her and create
situation in which she has to compel to leave her matrimonial home
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2025:JHHC:13504-DBalong with her children. She further stated that just after the
marriage when she went to her matrimonial home the appellant
started demanding dowry in the form of Hero Honda motorcycle
and a Golden chain and when she showed her inability to fulfil the
demand she was tortured and lastly on 17.1.2017 returned back to
her parental home and since then she is residing there.
(iii) It is further stated that she and her family members made several
efforts to reconcile the matter and maintain the marital tie but it is
the appellant who never maintained his liabilities towards his wife
and children. She partly accepted the claim of the appellant that
some land was purchased in her name but it is stated that the said
land was purchased from her money which was available to her as
‘Stridhan’ given by her parents and relatives at the time of her
marriage.
(iv) She denied the allegation of the appellant that she was not agreed
for the partition of the purchased land. In this regard, her contention
was that she is the absolute and sole owner of the purchased land
because that land was purchased from her money and also denied
this allegation that she went to her parental house after taking all the
ornaments but she claimed that she was the sole owner of that
ornament which was given to her at the time of her marriage by her
parents and she has given a petition to keep the same safely.
(v) She also denied the allegation of the appellant that he has made
several efforts to pacify the matter and went several times to his
matrimonial home to resolve the disputes rather the real fact is that
4
2025:JHHC:13504-DBthe appellant never approached to OP when she went back to be
parental home.
(vi) The respondent-wife admitted this fact that she is presently residing
at her parental home with her children because the offfence of the
appellant-husband committed to her. The respondent also made
allegation that the appellant has illicit relation with his bhabhi and
her sister. The respondent also stated that due to ill behavior and ill
treatment committed with her, she filed a criminal case against her
husband which is under trial.
(vii) It is further stated that the respondent has also filed a maintenance
case against her husband bearing Maintenance Case no. 85/2017
which is also pending. It is further stated that the claim of the
appellant that he has been deserted by his wife is totally wrong
rather he has deserted his wife and children. She further stated has
she is ready to go to her matrimonial home along with her children
and ready to start her conjugal life with her husband and on the
above grounds it is prayed that the suit is liable to be dismissed.
4. Learned Family Judge, after institution of the said case, taking in to
consideration of the pleading of the parties particularly plaint and written
statement, has formulated the issues and has decided the lis by refusing to
grant divorce to the petitioner/appellant.
5. The aforesaid judgment by which divorce has not been granted is under
challenge by filing the instant appeal.
Submission of behalf of the appellant-husband:
6. Ms. Kehkashan Afsheen, the learned counsel appearing for the
appellant-husband has taken the following grounds:
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(i) There is an error in the impugned judgment, since, each and
every aspect of the matter has not be taken into consideration
based upon the documentary evidences as well as ocular
evidences.
(ii) The element of cruelty and desertion has been found to be
there if the evidences adduced on behalf of the appellant-husband
will be taken in to consideration but without appreciating the same
properly the learned Family Judge has come to the finding by
holding that no element either of cruelty or desertion is there and,
as such, the impugned judgment and decree suffers from an error.
(iii) It has been contended that the appellant has been meted out
with the cruelty as also she is living separately and, as such, both
the grounds are available as would be evident from the evidence
adduced on behalf of the appellant-husband, but the same has not
been taken into consideration.
7. The learned counsel, based upon the aforesaid ground, has
submitted that the impugned judgment and decree, therefore, needs
interference said to be perverse.
Submission of behalf of the respondent-wife:
8. Mr. Lakhan Chandra Roy, the learned counsel appearing for the
respondent-wife has taken the following grounds to defend the impugned
judgment:
(i) The learned Family Judge has committed no error in passing
the impugned judgment and decree reason being that the
interpretation of the word “cruelty and desertion” as has
been interpreted by the Hon’ble Apex Court has been taken
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2025:JHHC:13504-DBinto consideration in right perspective and thereafter
assessing the evidence adduced on that count the learned
Family Judge has come to conclusion that neither the
element of cruelty nor the desertion is available, as such, it
is incorrect on part of the appellant to take the ground that
there is no consideration of the material evidence adduced
on behalf of the appellant-husband.
(ii) The learned counsel has further submitted that the ground
for cruelty is not available since the demand of dowry has
been proved by the wife during course of evidence by
adducing the witnesses as RW2 and RW3, who are the
daughter and son of the appellant who has fully supported
the reason for ousting the respondent-wife and subjecting
her to torture and ultimately supported the case of desertion
of her mother kicking out their mother from the house.
(iii) The learned counsel has submitted that since the daughter
and son both have negated the ground of cruelty and
desertion which has been taken in to consideration by the
learned Family Judge while passing the impugned judgment
and, as such, the same cannot be said to suffer from an error
if the testimony of these witnesses and other material
exhibits will be taken into consideration.
9. The learned counsel appearing for the respondent-wife, based
upon the aforesaid grounds, has submitted that the impugned judgment
therefore need not to be interfere with.
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Analysis:
10. We have heard the learned counsels appearing for the
parties, gone through the Trial Court Records, as also the impugned
judgment, the testimonies of the witnesses and the documents exhibited
therein.
11. The learned Family Judge has formulated altogether six
issues, for ready reference the same are being quoted hereinbelow:
i) Whether the suit as framed is maintainable in its present form?
ii) Whether there is a valid cause of action?
iii) Whether the respondent has deserted the Petitioner without any
reasonable cause ?
iv) Whether the respondent has committed cruelty upon the
Petitioner ?
v) Whether the petitioner is entitled for dissolution of marriage on
the grounds of cruelty and desertion ?
vi) Any other relief/ reliefs Petitioner is entitled to?
12. The issue pertaining to ground for divorce is by formulating a
specific issue whether the plaintiff is entitled for dissolution of marriage
on the ground of cruelty and desertion as issue no.5.
13. The issue no.5 has been dealt with along with the issue nos.2, 3
and 4.
14. The learned Family Judge has also considered the evidence
adduced on behalf of the respondent along with the documentary witnesses
which have been exhibited for deciding the issues involved in Original Suit
No.280 of 2017.
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15. This Court in order to appreciate the aforesaid rival submission
before entering into the legality and propriety of the impugned judgment
needs to discuss herein the relevant part of the evidences adduced on
behalf of both the parties wherein the element of cruelty and desertion has
been shown by the plaintiff which has been reverted by the respondent-
wife.
16. During the trial, four witnesses have been examined on behalf of
the appellant-husband who himself has been examined PW1.
17. The respondent-wife has also examined four witnesses on her
behalf including her son as RW3 and daughter as RW2. The respondent-
wife has herself examined as RW4.
18. In his examination on oath, the appellant-husband has narrated
entire things as pleaded in the plaint about his marriage with the
respondent and out of the said wedlock one daughter, namely, Akansha
Kumari @ Shishu and one son, namely, Shivam Kumar were born. He has
stated about the purchasing of land by his father jointly in the name of the
respondent-wife and his Bhabhi and when his father wished to partition
the said land among all the family members, the respondent-wife started
quarrelling with him. He tried to pacify the matter but the respondent
threatened to implicate them in false cases and lastly, left the matrimonial
home on her own will along with their children and started residing in her
parental home. His father and mother died due to said mental trauma and
even in their ‘Shradh’ she never participated nor came back to her
matrimonial house.
In cross-examination, the appellant-husband admitted that he is
residing with his brother in a house situated at the plot which was
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purchased by his father. He denied the allegation that the said land was
purchased by his father from the money which was brought by the
respondent-wife as stridhan. He admitted the fact that the respondent-wife
has filed a case for maintenance against him at Khagaria (Bihar). He has
denied the allegation that he is having illicit relation with his Bhabhi and
her sister. He has further denied the allegation that he has forcibly occupied
the land which is registered in the name of his wife. He has admitted the
fact that to pacify the matter between them, a “Panchayati” was convened
but the respondent-wife is not ready to live with him. He further stated that
he does not want to keep the respondent with him as he has apprehension
of threat of life at the hands of the respondent-wife. He admitted the fact
that he and the respondent lived together till January 2017 as husband and
wife.
Other witnesses examined on behalf of the appellant-husband is formal
in nature who are near relatives and acquainted both the parties. They have
corroborated the fact as narrated by the appellant and admitted the fact that
the appellant and the respondent are living separately.
19. On the other hand, the respondent-wife as RW4 has admitted the
factum of marriage with the appellant and born of children from the said
wedlock. She has narrated the entire things as pleaded in her written
statement. She has stated that the appellant and his family members started
demanding dowry in the shape of a motorcycle and golden chain and on
non-fulfillment she has been tortured by her husband and inlaws physically
and mentally. She was deprived of food, medicine and daily necessity of
life and her inlaws has attempted to kill her but she any how saved her life
and left her matrimonial home along with her children. She has stated that
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due to that reason, she filed a criminal case against his husband for demand
of dowry and attempt of murder under sections 498-A, 307,384, 363, 379,
314, 326, 504, 120B/34 of the IPC and section 27 of the Arms Act along
with Section 3/4 of the Dowry Prohibition Act which is pending. She stated
that since her husband has deserted her and her children and did not
provide a single penny, as such, she filed a maintenance case against his
husband, which is also pending. She also stated that she has filed a Title
(D) Suit against her husband which is now pending. She alleged that the
appellant-husband has illicit relation with his Bhabhi and her sister and
due to that reason, he does not want to keep her with him and she was
driven out by her husband from her matrimonial home.
In her cross-examination, she has admitted the fact of filing
several cases against the appellant-husband and the fact that she is residing
separately from the appellant in her parental home since 2016.
In their examination-on-oath, the daughter (RW2) and son
(RW3) of the parties have stated about the cruel behaviour of the appellant
and his family members due to non-fulfillment of demand of dowry. They
have stated about the fact of purchase of land from the money of their
mother and the fact of illicit relation of the appellant with his Bhabhi and
her sister. They have stated that their father has arranged his second
marriage.
In the cross-examination, both these witnesses have stated that
their mother has no source of income and the land in question was
purchased with the help of their maternal grandfather. They have admitted
the fact that they lived with their parents till 2016 at Deoghar.
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20. The learned Family Judge has appreciated the entire facts and
evidence and has come to the conclusion that the appellant-husband has
failed to make the ground either cruelty or desertion and, as such, has
dismissed the suit which is under challenge in the instant appeal.
21. The fact about filing of suit on the ground of cruelty and
desertion is admitted one as per the evidences adduced on behalf of both
the parties.
22. The appellant-husband has tried to establish the element of
cruelty and desertion at the hands of the respondent-wife.
23. The respondent-wife has adduced evidence for the purpose of
negating the ground of cruelty and desertion, rather she has taken the
ground of cruelty at the hands of her husband as also kicking out from her
matrimonial home and, as such, the element of desertion cannot be said to
be there.
24. The appellant-husband all along has alleged the issue of cruelty
which he was subjecting to by his wife and in order to establish the same
the evidences has been laid as has been referred hereinabove.
25. It needs to refer herein that two children have taken birth from
the wedlock of the appellant and the respondent, both have been examined
as RW2 and RW3.
26. This Court has gone through the evidence of RW2 and RW3 and
found wherefrom that both the daughter and son, RW2 and RW3 adduced
on behalf of the wife, have fully supported the fact that how their mother
has been subjected to cruelty by making demand of dowry leading to
mental and physical torture. Therefore, in consequence a case was
instituted under sections 498-A, 307,384, 363, 379, 314, 326, 504,
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120B/34 of the IPC and section 27 of the Arms Act along with Section 3/4
of the Dowry Prohibition Act.
27. The case of maintenance under section 125 Cr.P.C has also been
filed against the appellant-husband. The element of cruelty has fully been
supported by both RW2(daughter) and RW3(son).
28. So far as issue of desertion is concerned, it has been stated by
them that their mother has been forced to leave the house on account of
physical and mental torture due to non-fulfillment of demand of dowry.
Both the witnesses have thoroughly been cross-examined.
29. We have gone through the cross-examination part and found that
both the witnesses have remained consistent on the issue of making out
cruelty to their mother and forcing her to leave the house.
30. This Court while appreciating the argument advanced on behalf
of the parties on the issue of perversity needs to refer herein the
interpretation of the word “perverse” as has been interpreted by the
Hon’ble Apex Court which means that there is no evidence or erroneous
consideration of the evidence. The Hon’ble Apex Court in Arulvelu and
Anr. vs. State [Represented by the Public Prosecutor] and Anr., (2009)
10 SCC 206 while elaborately discussing the word perverse has held that
it is, no doubt, true that if a finding of fact is arrived at by ignoring or
excluding relevant material or by taking into consideration irrelevant
material or if the finding so outrageously defies logic as to suffer from the
vice of irrationality incurring the blame of being perverse, then, the finding
is rendered infirm in law. Relevant paragraphs, i.e., paras-24, 25, 26 and
27 of the said judgment reads as under:
“24. The expression “perverse” has been dealt with in a
number of cases. In Gaya Din v. Hanuman Prasad [(2001) 113
2025:JHHC:13504-DBSCC 501] this Court observed that the expression
“perverse” means that the findings of the subordinate
authority are not supported by the evidence brought on
record or they are against the law or suffer from the vice of
procedural irregularity.
25. In Parry’s (Calcutta) Employees’ Union v. Parry & Co.
Ltd. [AIR 1966 Cal 31] the Court observed that “perverse
finding” means a finding which is not only against the weight
of evidence but is altogether against the evidence itself.
In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC
665 : AIR 1994 SC 1341] the Court observed that this is not
a case where it can be said that the findings of the authorities
are based on no evidence or that they are so perverse that no
reasonable person would have arrived at those findings.
26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant
58] the Court observed that any order made in conscious
violation of pleading and law is a perverse order.
In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed
that a “perverse verdict” may probably be defined as one
that is not only against the weight of evidence but is
altogether against the evidence. In Godfrey v. Godfrey [106
NW 814] the Court defined “perverse” as turned the wrong
way, not right; distorted from the right; turned away or
deviating from what is right, proper, correct, etc.
27. The expression “perverse” has been defined by various
dictionaries in the following manner:
1. Oxford Advanced Learner’s Dictionary of Current
English, 6th Edn.
“Perverse.–Showing deliberate determination to behave
in a way that most people think is wrong, unacceptable or
unreasonable.”
2. Longman Dictionary of Contemporary English,
International Edn.
Perverse.–Deliberately departing from what is normal
and reasonable.
3. The New Oxford Dictionary of English, 1998 Edn.
Perverse.–Law (of a verdict) against the weight of
evidence or the direction of the judge on a point of law.
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4. The New Lexicon Webster’s Dictionary of the English
Language (Deluxe Encyclopedic Edn.)
Perverse.–Purposely deviating from accepted or
expected behavior or opinion; wicked or wayward; stubborn;
cross or petulant.
5. Stroud’s Judicial Dictionary of Words & Phrases, 4th
Edn.
“Perverse.–A perverse verdict may probably be defined as
one that is not only against the weight of evidence but is
altogether against the evidence.”
31. The ground for divorce has been taken on the ground of cruelty
and desertion. The “cruelty” has been interpreted by the Hon’ble Apex
Court in the case of Dr. N.G. Dastane vs. Mrs. S. Dastana, (1975) 2 SCC
326 wherein it has been laid down that the Court has to enquire, as to
whether, the conduct charge as cruelty, is of such a character, as to cause
in the mind of the petitioner, a reasonable apprehension that, it will be
harmful or injurious for him to live with the respondent.
32. This Court deems it fit and proper to take into consideration the
meaning of ‘cruelty’ as has been held by the Hon’ble Apex Court in
Shobha Rani v. Madhukar Reddi, (1988)1 SCC 105 wherein the wife
alleged that the appellant-husband and his parents demanded dowry. The
Hon’ble Apex Court emphasized that “cruelty” can have no fixed
definition.
33. According to the Hon‟ble Apex Court, “cruelty” is the “conduct
in relation to or in respect of matrimonial conduct in respect of matrimonial
obligations”. It is the conduct which adversely affects the spouse. Such
cruelty can be either “mental” or “physical”, intentional or unintentional.
For example, unintentionally waking your spouse up in the middle of the
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night may be mental cruelty; intention is not an essential element of cruelty
but it may be present. Physical cruelty is less ambiguous and more “a
question of fact and degree.”
34. The Hon‟ble Apex Court has further observed therein that while
dealing with such complaints of cruelty it is important for the court to not
search for a standard in life, since cruelty in one case may not be cruelty
in another case. What must be considered include the kind of life the
parties are used to, “their economic and social conditions”, and the “culture
and human values to which they attach importance.”
35. The nature of allegations need not only be illegal conduct such
as asking for dowry. Making allegations against the spouse in the written
statement filed before the court in judicial proceedings may also be held to
constitute cruelty.
36. In V. Bhagat vs. D. Bhagat (Mrs.), (1994)1 SCC 337, the wife
alleged in her written statement that her husband was suffering from
“mental problems and paranoid disorder”. The wife’s lawyer also levelled
allegations of “lunacy” and “insanity” against the husband and his family
while he was conducting a cross-examination. The Hon‟ble Apex Court
held these allegations against the husband to constitute “cruelty”.
37. In Vijaykumar Ramchandra Bhate v. Neela Vijay Kumar
Bhate, (2003)6 SCC 334 the Hon‟ble Apex Court has observed by taking
into consideration the allegations levelled by the husband in his written
statement that his wife was “unchaste” and had indecent familiarity with a
person outside wedlock and that his wife was having an extramarital affair.
These allegations, given the context of an educated Indian woman, were
held to constitute “cruelty” itself.
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38. The Hon‟ble Apex Court in Joydeep Majumdar v. Bharti
Jaiswal Majumdar, (2021) 3 SCC 742, has been pleased to observe that
while judging whether the conduct is cruel or not, what has to be seen is
whether that conduct, which is sustained over a period of time, renders the
life of the spouse so miserable as to make it unreasonable to make one live
with the other. The conduct may take the form of abusive or humiliating
treatment, causing mental pain and anguish, torturing the spouse, etc. The
conduct complained of must be “grave” and “weighty” and trivial
irritations and normal wear and tear of marriage would not constitute
mental cruelty as a ground for divorce.
39. It is, thus, evident that the Hon’ble Apex Court in the recent
judgment passed in Joydeep Majumdar v. Bharti Jaiswal Majumdar
(supra) has been pleased to lay down that while judging whether the
conduct is cruel or not, what has to be seen is whether that conduct, which
is sustained over a period of time, renders the life of the spouse so
miserable as to make it unreasonable to make one live with the other. The
conduct may take the form of abusive or humiliating treatment, causing
mental pain and anguish, torturing the spouse, etc. The conduct
complained of must be “grave” and “weighty” and trivial irritations and
normal wear and tear of marriage would not constitute mental cruelty as a
ground for divorce.
40. The definition of desertion is required to be referred herein as
defined under explanation part of Section 13 which means the desertion of
the petitioner by the other party to the marriage without reasonable cause
and without the consent or against the wish of such party, and includes the
willful neglect of the petitioner by the other party to the marriage.
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41. Rayden on Divorce which is a standard work on the subject at p.
128 (6th Edn.) has summarised the case-law on the subject in these terms:
“Desertion is the separation of one spouse from the other,
with an intention on the part of the deserting spouse of bringing
cohabitation permanently to an end without reasonable cause
and without the consent of the other spouse; but the physical act
of departure by one spouse does not necessarily make that spouse
the deserting party.”
42. The legal position has been admirably summarised in paras-453
and 454 at pp. 241 to 243 of Halsbury’s Laws of England (3rd Edn.), Vol.
12, in the following words:
“In its essence desertion means the intentional permanent
forsaking and abandonment of one spouse by the other without
that other’s consent, and without reasonable cause. It is a total
repudiation of the obligations of marriage. In view of the large
variety of circumstances and of modes of life involved, the Court
has discouraged attempts at defining desertion, there being no
general principle applicable to all cases.
43. Desertion is not the withdrawal from a place but from a state of
things, for what the law seeks to enforce is the recognition and discharge
of the common obligations of the married state; the state of things may
usually be termed, for short, ‘the home’. There can be desertion without
previous cohabitation by the parties, or without the marriage having been
consummated. The person who actually withdraws from cohabitation is
not necessarily the deserting party. The fact that a husband makes an
allowance to a wife whom he has abandoned is no answer to a charge of
desertion.
44. The offence of desertion is a course of conduct which exists
independently of its duration, but as a ground for divorce it must exist for
a period of at least two years immediately preceding the presentation of
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the petition or, where the offence appears as a cross-charge, of the answer.
Desertion as a ground of divorce differs from the statutory grounds of
adultery and cruelty in that the offence founding the cause of action of
desertion is not complete, but is inchoate, until the suit is constituted.
Desertion is a continuing offence.
45. It is, thus, evident from the aforesaid reference of meaning of
desertion that the quality of permanence is one of the essential elements
which differentiates desertion from wilful separation. If a spouse abandons
the other spouse in a state of temporary passion, for example, anger or
disgust, without intending permanently to cease cohabitation, it will not
amount to desertion. For the offence of desertion, so far as the deserting
spouse is concerned, two essential conditions must be there, namely, (1)
the factum of separation, and (2) the intention to bring cohabitation
permanently to an end.
46. Similarly, two elements are essential so far as the deserted spouse
is concerned: (1) the absence of consent, and (2) absence of conduct giving
reasonable cause to the spouse leaving the matrimonial home to form the
necessary intention aforesaid. In such a situation, the party who is filing
for divorce will have the burden of proving those elements.
47. Recently also, the Hon’ble Apex Court in Debananda Tamuli vs.
Kakumoni Kataky, (2022) 5 SCC 459 has considered the definition of
‘desertion’ on the basis of the judgment rendered by the Hon’ble Apex
Court in Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40
which has been consistently followed in several decisions of this Court.
The law consistently laid down by this Court is that ‘desertion’ means the
intentional abandonment of one spouse by the other without the consent of
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2025:JHHC:13504-DB
the other and without a reasonable cause. The deserted spouse must prove
that there is a factum of separation and there is an intention on the part of
deserting spouse to bring the cohabitation to a permanent end. In other
words, there should be animus deserendi on the part of the deserting
spouse. There must be an absence of consent on the part of the deserted
spouse and the conduct of the deserted spouse should not give a reasonable
cause to the deserting spouse to leave the matrimonial home. The view
taken by the Hon’ble Apex Court has been incorporated in the Explanation
added to sub-section (1) of Section 13 by Act 68 of 1976. The said
Explanation reads thus:
“13. Divorce.–(1) …
Explanation.–In this sub-section, the expression “desertion”
means the desertion of the petitioner by the other party to the
marriage without reasonable cause and without the consent or
against the wish of such party, and includes the wilful neglect of the
petitioner by the other party to the marriage, and its grammatical
variations and cognate expressions shall be construed
accordingly.”
48. This Court, on the premise of the interpretation of the word
“cruelty” and “desertion” has considered the evidences of the witnesses as
has been incorporated by the learned Court in the impugned judgment.
49. It is evident from the interpretation of the word cruelty that the
same is to be considered on different parameters depending upon the
material if available on record.
50. The appellant-husband although has taken the ground of cruelty
meted to him by his wife but, we after taking into consideration the
evidence of the daughter and son who have been examined as RW2 and
RW3 respectively have not supported the element of cruelty rather they
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2025:JHHC:13504-DB
have stated that their mother has been subjected to cruelty not only by their
father rather other members of in-laws of her matrimonial house due to
which she was forced to leave the house along with them.
51. The desertion while, on the other hand, has been defined that if
either of the parties on its own has left the house without any compulsion
or coercion, then only such type of separation will come under the fold of
desertion. But what we have seen from the evidence of the son and the
daughter it cannot be said and to arrive at a conclusion that the respondent-
wife had herself left the matrimonial house, rather, she was forced to leave
the house due to mental and physical torture.
52. This Court, therefore, is of the view that neither the element of
cruelty nor desertion is available to the petitioner/appellant after taking
into consideration the testimony of the witnesses together, particularly, the
testimony of the daughter and son.
53. This Court after discussing the aforesaid factual aspect along
with the legal position and adverting to the consideration made by the
learned Family Judge in the impugned judgment has found therefrom that
the issue of element of cruelty and desertion has well been considered
along with the evidence of the daughter and son. The learned Family Judge
on consideration of the evidence, both ocular and documentary, has come
to conclusion that the respondent-wife was subjected to cruelty meted out
due to demand of dowry meeting to mental and physical torture due to
which she was forced to leave her matrimonial house.
54. The aforesaid reason has led the learned Family Judge to dismiss
the suit.
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2025:JHHC:13504-DB
55. This Court, on consideration of the finding arrived at by the
learned Family Judge and based upon the aforesaid discussion, is of the
view that the judgment and decree passed by the learned Family Judge is
not coming under the fold of the perversity, since, the conscious
consideration has been made of the evidences, both ocular and
documentary, as would be evident from the impugned judgment.
56. This Court, therefore, is of the view that the judgment dated
14.12.2021 and the decree dated 10.01.2022 passed in Original Suit
No.280 of 2017 by the learned Family Judge need no interference and,
accordingly, the instant appeal stands dismissed.
57. Pending I.As, if any, stands disposed of.
(Sujit Narayan Prasad, J.)
I Agree.
(Rajesh Kumar, J.)
(Rajesh Kumar, J.)
Sudhir
Dated:05/05/2025
Jharkhand High Court, Ranchi
AFR
22
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