Patna High Court
Viahal Kumar @ Guddu vs Richa Sah @ Gudiya on 17 January, 2025
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.647 of 2017
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Viahal Kumar @ Guddu S/o Late Indra Mohan Prasad, R/o Thakur Bari
Road, Kishanganj, P.S.- Kishanganj, Distt- Kishanganj.
... ... Appellant/s
Versus
Richa Sah @ Gudiya W/o Vishal Kumar, D/o Late Vinod Prasad Sah,
Resident of Cinema Road, Gulabbagh, P.S.- Sadar, Distt- Purnea.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Tej Pratap Singh, Advocate
For the Respondent/s : None
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
And
HONOURABLE MR. JUSTICE S. B. PD. SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. B. PD. SINGH)
Date : 17-01-2025
Heard learned counsel appearing on behalf of
the appellant. However, none appears on behalf of the
respondent.
2. The present appeal has been filed under
Section 19(1) of the Family Court Act, 1984 impugning
the judgment dated 11.04.2017 passed by learned
Principal Judge, Family Court, Kisanganj in Matrimonial
Case No. 145 of 2012, whereby the matrimonial suit,
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preferred by the appellant-husband, for a decree of
divorce, on dissolution of marriage, on the ground of
cruelty and desertion, has been dismissed and a cost of
Rs. 5000/- was imposed on the appellant-husband to be
paid to the respondent-wife.
3. The case of the appellant-husband as per
petition filed before the Family Court is that the
marriage of the appellant-husband with respondent-wife
was solemnized on 12.05.2009 at Kishanganj as per
Hindu rites and rituals. Since the beginning of marriage,
the behaviour of the respondent-wife towards the
appellant-husband was not amicable as she was always
creating nuisance for going "Naihar" (parental place)
and she was pressurizing the appellant-husband to sell
the property of Kishanganj and to settle at Gulabbagh,
Purnea. The respondent-wife conceived in the year,
2010, she went to Gulabbagh and gave birth to one son
Tejas on 15.09.2010. After birth of son, the
respondent-wife returned back at Kishanganj in the
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month of January, 2011 and lived at Kishanganj and
when she again conceived, she again pressurized the
appellant-husband to go to her parents' place to give
birth to second child and despite opposition by the
appellant-husband, she left her matrimonial house at
Kishanganj and went at her parents' place at Purnea on
14.08.2011
and since then, the respondent-wife
deserted the appellant-husband. The appellant-husband
made all his efforts to get the respondent-wife returned
at her matrimonial house but all his efforts went in vein.
The respondent-wife and other in-laws family members
also threatened the appellant-husband to implicate in a
false case if he does not agree for a permanent alimony.
Hence, Matrimonial Case No. 145 of 2012 was filed for
dissolution of marriage.
4. After filing of the above case, the
O.P./respondent appeared in response to the
summon/notice issued by the Court and filed her
reply/written statement.
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5. In her written statement, the respondent-
wife has stated that she got married with appellant-
husband and out of the wedlock, two male child were
born. She further alleged that just after her marriage,
the appellant-husband and all his other family members
started passing comments for not bringing articles of
gold and silver and they were demanding extra dowry of
Rs. 10 lakhs. They started subjecting mental and
physical torture and for that the respondent-wife filed a
criminal case no. 2453/13 under Section 498(A) of the
Indian Penal Case and that case is still pending in the
court of S.D.J.M. Purnea. All the gifts of marriage were
snatched by the appellant-husband at her matrimonial
place and she was driven out from the matrimonial place
along with her both children. The respondent-wife is
leading very painful life at her parent’s place and she
herself is suffering with mental cruelty and pain. The
respondent-wife is of sound mind with her best physical
effort and mental status and she is not abnormal and
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she is not infected with any disease, therefore, there is
no ground of divorce with the appellant-husband. The
respondent-wife does not want divorce because she has
got two kids from the appellant-husband and she wants
to lead her conjugal life with him. At the time of
counselling on 18.12.2013 by the court, the
respondent-wife also gave her consent that she wants to
live with her husband but it was the appellant-husband
who was not ready to keep the respondent-wife with him
as wife. Such attitude and behaviour of appellant-
husband is sufficient to believe that he is not law abiding
person and is aggressive. The respondent-wife also
denied the allegations that she was creating nuisance for
going “Maike” and she was putting pressure on
appellant-husband to sell property of Kishanganj and
settle at Gulabbagh. It is true that respondent-wife gave
birth to both her children at her parents’ house but that
was done with the consent of the appellant-husband.
The respondent-wife never forced the appellant-
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husband to sell his house at Kishanganj and settle at
Gulabbagh, Purnea. She further denied that she
deserted the appellant-husband on 14.08.2011 and
talked in filthy language with appellant-husband on
telephone. She also denied that her mother and brother
gave threatening to appellant-husband. She prayed that
the matrimonial case of the appellant filed for dissolution
of marriage, may be dismissed with cost.
6. In view of the rival contentions and the
arguments adduced on behalf of the appellant as well as
the evidences brought on record, the main points for
determination in this appeal are as follows:-
(i) Whether the appellant is entitled to
the relief sought for in his appeal.
(ii) Whether the impugned judgment of
Principal Judge, Family Court, Patna is just,
proper and sustainable/tenable in the eyes
of law.
7. None appears on behalf of the respondent-
wife. Hence, the matter is decided ex-parte.
8. The appellant-husband has given much
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emphasis on the ground of cruelty for seeking decree of
divorce against the respondent-wife. The appellant-
husband has submitted in para 3 of his petition for
divorce that behaviour of respondent-wife since
beginning was not amiable with the appellant-husband
since she was always creating nuisance for going
“Naihar” (parental place) and she was pressurizing to
the appellant-husband to sell the property of Kishanganj
and settle at Gulabbagh, Purnea. It appears from the
entire case of the appellant-husband that only on the
occasion of delivery of second son, the respondent-wife
put pressure on appellant-husband to send her at her
parents’ place and despite denial by the appellant-
husband, she left the house of appellant-husband with
her mother on 14.08.2011. But while considering the
evidence of respondent-wife who has examined herself
as D.W.1, it appears that she has stated in para 1 of her
evidence that at the time of delivery of both the
children, the appellant-husband himself had hired
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vehicle and left the respondent-wife at her parents’
house. However, such single act or instance on the part
of respondent-wife can never be treated as cruelty for
the purpose of divorce. Further, the appellant-husband
has stated in para 4 of his deposition that respondent-
wife was not ready to live peacefully in her matrimonial
house at Kishanganj which clearly shows that the
appellant-husband has not come with any specific
ground of cruelty by respondent-wife. Further, the
appellant-husband in para 6 of his evidence has stated
that since 14.08.2011, the respondent-wife deserted
the appellant-husband and even on telephonic
conversation she used filthy languages against the
appellant-husband which is duly recorded by him. The
appellant-husband further deposed that the respondent-
wife is a women of rough tongue and she used to talk
with such abusive words which a reasonable man cannot
tolerate and such behavior and conduct of respondent-
wife was amounting to the gross mental cruelty to the
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appellant-husband. A C.D. of the mobile communication
made between the appellant-husband and the
respondent-wife and text copy of the C.D. have also
been brought on the record on the basis of formal
evidence of P.W. 5 Subrato Ray as Ext 1 and 1/A.
During cross-examination, P.W. 5 has stated in para 5
that he has no any degree or technical qualification of
preparing C.D. from mobile which clearly suggest that it
is a very weak kind of evidence and until it is not
confirmed by the competent technician that the sound is
original sound of the person, the evidence cannot be
taken as legally admissible evidence against the person
whose sound is in dispute. In this case, it is also relevant
that the respondent-wife herself has admitted in her
evidence that her husband used to force her to abuse
and he used to record those abusive words on his
mobile. She has further denied this fact that she ever
told her husband that she is not ready to live with him
and she wants alimony. She has very clearly stated in
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para 2 of her deposition that she wants to reside with
her husband at his house. It also appears from the case
record that at the time of counselling before the
Mediation Centre, she also agreed and expressed her
desire that she wants to reside with her husband-
appellant.
9. P.W.1 Kamal Ray is the friend of appellant-
husband who, in his cross-examination at para 15, has
deposed that he does not know the reason of dispute
and quarrel in between appellant-husband and the
respondent-wife. Further in para 17, he deposed that he
cannot say the internal reason of the quarrel between
husband and wife. However, in his examination-in-chief,
P.W. 1 has supported the case of appellant-husband and
stated in para 4 that behaviour of the respondent-wife
was never good with the family members of appellant-
husband. He further stated in para 7 that he learnt that
respondent-wife is now not ready to reside with the
appellant-husband in any circumstance and she wants
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divorce after getting a lum-sum amount of alimony. In
para 8, he has deposed that the respondent-wife has
also filed a criminal case of dowry against the family
members of the appellant-husband.
10. The evidence of this witness does not
appear to be trustworthy and reliable as this witness is
not competent to say that the respondent-wife wants
divorce from the appellant-husband and there is no
basis of his evidence on the above facts. The witness
has not stated that on any occasion, he heard any
abusive word from the mouth of respondent-wife.
11. P.W.2 Subhash Prasad has also supported
the case of the appellant-husband and deposed in his
examination-in-chief that he is cousin brother-in-law of
appellant-husband. From the entire cross-examination
of this witness also, it does not appear that what was the
actual reason of the quarrel between the appellant-
husband and the respondent-wife. The witness has also
not stated that on any occasion, the respondent-wife
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used abusive words for the appellant-husband or any
other members of the family of the appellant-husband.
12. P.W.3 Rattiram Sonar is also stranger to
the family of appellant-husband who has deposed the
same thing which were deposed by the P.Ws 1 and 2. He
has deposed in his cross-examination at para 14 that
due to being neighbour shopkeeper, he usually indulged
in the family matters of the appellant-husband. He has
stated in para 16 that on one occasion, respondent-wife
and appellant-husband were quarreling with each other
and they were abusing to each other and when he
interfered, the respondent-wife told him that it is the
internal matter of her and her husband and he should
not interfere in her internal matter. It does not appear
from the evidence of this witness that how the
respondent-wife misbehaved with this witness. Further it
also appears from para 16 of evidence of this witness
that the appellant-husband and respondent-wife, both
are abusing to each other and therefore, considering the
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evidence of this witness also it does not find force
regarding the ground of cruelty only on the basis of
using some abusive words by respondent-wife to the
appellant-husband.
13. It further appears that no any other family
member of the appellant-husband has turned up to
support the case of cruelty as against the appellant-
husband by the respondent-wife. It has also come in the
evidence that two own brothers of appellant and two
brothers-in-law of the appellant-husband also resides at
Kishanganj but none of them have come to support the
case of appellant-husband. Therefore, in the light of
these evidences, learned Court below was of the opinion
that the behaviour of the respondent-wife should not be
taken seriously to that extent that it may be a ground of
cruelty for the purpose of divorce.
14. So far as the ground of desertion is
concerned, from the entire case of the appellant-
husband, it appears that only on one occasion on
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14.08.2011, the respondent-wife left the house of the
appellant-husband despite opposing by the appellant-
husband and on that occasion, she was carrying her
second pregnancy and she left the house of the
appellant-husband with her mother to give birth to her
second child at her mother’s place. The appellant
claimed that after birth of second child, the appellant-
husband went at his in-law’s place and he was tortured
there and in-laws of the appellant-husband told him to
leave the place of respondent-wife. The appellant-
husband has supported this fact in para 9 of his
examination-in-chief and stated that due to that event,
his confidence lost and he decided that now he has no
other alternative than to give divorce to the respondent-
wife. In his cross-examination, the appellant-husband
has deposed in para 18 that now he is not ready to keep
his respondent-wife with him nor he is ready for any
compromise. He has further deposed in para 19 that he
is ready to keep both his sons with him but he is not
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ready to keep his wife on any condition.
15. The learned Court below, after considering
the evidence of respondent-wife on the point of
desertion found that she has stated that it is not the fact
that on the occasion of delivery of both sons, she went
to her “Maike” despite objected by the appellant-
husband. The real fact is that the appellant-husband
himself hired the vehicle and left her at her parents’
house. She has stated in para 5 of her cross-
examination that her second son took birth on
09.12.2012 and after his birth, she resided at parents’
house for about five to six months and she has stated in
para 6 that on last occasion on 20.11.2012, she left the
house of appellant-husband as at that time, her second
son was ill and she came to Purnea for his treatment and
she always visits to the house of the appellant and
appellant-husband does not allow to stay her at her
matrimonial house.
16. The term desertion has not been defined
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under the Hindu Marriage Act but for the complete
desertion under the act there must be an intention on
the part of the deserting spouse never to return to the
matrimonial home and such desertion must be without
the consent on the part of the person deserted. There
must also be the intention to abandon and withdraw
from cohabitation.
17. In this case, the reason for the
respondent-wife to go to her parents’ house was
because of the respondent-wife carrying second
pregnancy as earlier, she delivered her first child at her
parents’ house, therefore, her convenience for delivery
of son at her parents’ house should not be ignored by
the appellant-husband and such act of the respondent-
wife should never be treated as desertion of the
appellant-husband.
18. For strict proof of the desertion, there
must be animus deserandi on the part of respondent-
wife and in the entire circumstances and the facts
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brought before the court, learned Court below did not
find any animus deserendi on the part of the
respondent-wife and the respondent-wife still visits at
the house of the appellant-husband and she was always
ready to reside with appellant-husband and therefore,
learned Court below did not find any force on such
ground also and dismissed the matrimonial case filed for
dissolution of marriage.
19. Learned counsel for the appellant-
husband, however, assails the impugned judgment on
the ground that learned Family Court has not properly
appreciated the evidence adduced on behalf of the
appellant-husband and erroneously dismissed the
petition finding no ground proved. He submits that as
per the evidence, the appellant-husband has proved that
the respondent-wife has committed cruelty against him
because she has deprived him of his marital cohabition
by going back to her parental house. He also submits
that as per the evidence on record, the appellant-
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husband has proved that the respondent-wife has
deserted him since 2012 and always used abusive and
filthy languages against him and other family members.
20. After perusal of the materials available on
record and consideration of submissions made by
learned counsel for the appellant-husband, we find that
so far as, the ground of cruelty for taking divorce is
concerned, the word ‘cruelty’ has not been defined in
specific words and language in the Hindu Marriage Act,
1955, but it is well settled position that for grant of
decree of divorce, the nature of cruelty should be of
such a character which causes in mind of other spouse a
reasonable apprehension that it will be harmful and
injurious for him to live with the responden-wife.
21. It is observed by the Hon’ble Apex Court
in leading case of Samar Ghose vs. Jaya Ghose reported
in 2007 (4) SCC 511 that a sustained unjustifiable
conduct and behaviour of one spouse actually affecting
physical and mental health of the other spouse. The
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treatment complained of and the resultant danger or
apprehension must be very grave, substantial and
weighty. More trivial irritations, quarrel, normal wear
and tear of the married live which happens in day-to-day
live would not be adequate for grant of divorce on the
ground of mental cruelty.
22. In regard to the allegation of depriving the
appellant-husband of the conjugal life by the
respondent-wife, it is relevant to consider here that the
appellant-husband has himself pleaded and deposed
that they lived like husband and wife during her stay at
her matrimonial house and it is also considerable fact
here that when the respondent-wife went back to her
parental house, the appellant-husband has not taken
any legal steps for restitution of conjugal rights by filing
petition under Section 9 of the Hindu Marriage Act.
23. After appreciating the above discussed
facts, it clearly transpires that appellant-husband has
failed to prove the cruel behaviour of the respondent-
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wife towards him and his family members by the
strength of cogent, relevant and reliable evidence, while
burden of prove of cruelty rests upon the appellant-
husband of this case, because, he has sought relief of
divorce on the basis of cruel behaviour of the
respondent-wife towards him. Furthermore, certain
flimsy act or omission or using some threatening and
harsh words may occasionally happen in the day-to-day
conjugal life of a husband and wife to retaliate the other
spouse but that cannot be a justified/sustainable ground
for taking divorce. Some trifling utterance or remarks or
mere threatening of one spouse to other cannot be
construed as such decree of cruelty, which is legally
required to a decree of divorce. The austerity of temper
and behaviour, petulance of manner and harshness of
language may vary from man to man born and brought
up in different family background, living in different
standard of life, having their quality of educational
qualification and their status in society in which they
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live.
24. Hence, we find no merit in the present
appeal warranting any interference in the impugned
judgment. The Family Court has rightly dismissed the
matrimonial case of the appellant-husband seeking
divorce.
25. The present appeal is dismissed
accordingly, affirming the impugned judgment.
( S. B. Pd. Singh, J)
(P. B. Bajanthri, J)
Shageer/-
AFR/NAFR AFR CAV DATE 05-12-2024 Uploading Date 18-01-2025 Transmission Date N/A
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