Jharkhand High Court
Binod Kumar Mishra vs Preeti Pandey @ Preeti Mishra on 15 July, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:19306-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal (DB) No.85 of 2023
----
Binod Kumar Mishra, aged about 50 years, Son of Sri Surya Nath Mishra, resident
of C/194, Police Colony, P.O.-Anisabad, P.S. Gardanibagh, District-Patna (Bihar)
.... .... Appellant
-Versus-
Preeti Pandey @ Preeti Mishra, W/o Binod Kumar Mishra, D/o Sri Vijay Prasad
Pandey, resident of Qr. No.II/48, Shastri Nagar, Moonidih, P.O. & P.S. Putki,
District-Dhanbad, also R/o C/o Principal, D.A.V School, Moonidih, P.O. & P.S.
Putki, District-Dhanbad .... .... Respondent
----
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
----
For the Appellant : Mr. Rajesh Kumar, Advocate
: Mr. Vikash Kumar, Advocate
For the Respondent : Mrs. Vani Kumari, Advocate
: Mr. Aniket Ranjan, Advocate
: Mr. Prince Pandey, Advocate
----
th
Dated: 15 July, 2025
Per Sujit Narayan Prasad, J.
1. This appeal filed under Section 19(1) of the Family Courts Act is
directed against the judgment dated 01.03.2023 and decree dated 16.03.2023
passed by the learned Principal Judge, Family Court, Dhanbad in Original Suit
No.908 of 2022 whereby and whereunder the suit preferred by the appellant for
dissolution of marriage under Section 13(1) (i-a), (i-b) of the Hindu Marriage
Act, 1955 has been dismissed.
Submissions advanced by the learned counsel appearing on behalf of the
appellant:
2. The following grounds have been taken on behalf of the appellant-
husband while assailing the impugned judgment which reads as under:-
(i) The element of cruelty, although, is fully established but that has not
been taken into consideration in right perspective.
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(ii) The element of cruelty is also further established on the ground that a
criminal case was instituted implicating all the family members for alleged
commission of offence under Section 498(A) of the Indian Penal Code and
Sections 3/4 of the Dowry Prohibition Act.
(iii) Although, the Competent Court having jurisdiction has convicted the
appellant-husband, the said judgment of conviction was subsequently
reversed in the judgment of acquittal passed by the Appellate Court and that
is the sufficient ground to establish the element of cruelty by the appellant-
husband, since, the allegations of torture, both mental and physical, and the
demand of dowry could not have been established. Hence, the same itself
amounts to cruelty meted out to the husband.
(iv) To buttress his argument, learned counsel appearing for the
appellanthas relied upon the judgment rendered by the Hon’ble Apex Court
in the case of K. Srinivas vrs. K. Sunitain Civil Appeal No.1213 of 2006
reported in 2014 (16) SCC 34.
Submissions advanced by the learned counsel appearing on behalf of the
respondent:
3. Per contra, Mrs. Vani Kumari, learned counsel appearing for the
respondent-wife has argued while defending the impugned judgment by taking
the following grounds:-
(i) The learned Family Judge has committed no error, since, every
aspect of the matter as has been led by evidence on behalf of the
respondent-wife, has been taken into consideration in right perspective.
(ii) The suit for dissolution of marriage was filed both under Section
13(1) (i-a), (i-b) of the Hindu Marriage Act, 1955 but the element of
desertion has not been found to be substantiated and for that purpose
specific finding was recorded by the learned Family Judge.
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(iii) The said finding in the present appeal is not under challenge, rather
only the element of cruelty which has not found to be substantiated as per
the finding recorded by the learned Family Court, is under challenge in the
present appeal.
(iv) The contention, therefore, has been raised that the moment the
element of desertion could not have been established on the basis of lack of
evidence having not been produced by the appellant-husband, rather,
findings have been arrived at by the learned Family Judge that it is the
husband who has forced the respondent-wife to leave the matrimonial
home, the same itself amounts to cruelty meted outto the wife by the
husband.
(v) It has also been submitted by showing the conduct of the appellant-
husband that initially a suit was filed for dissolution of marriage being
Matrimonial Case No.438 of 2007, the Court having its jurisdiction at
Patna. The respondent-wife after having known about the same had to rush
to the Hon’ble Apex Court by filing Transfer Petition for transferring the
matrimonial case to the jurisdiction available to the judgeship in the district
of Dhanbad (State of Jharkhand), since, the wife resides there. The case,
accordingly, was transferred to Dhanbad but with ulterior motive, the
appellant-husband did not appear in the said suit leading to its dismissal for
non-prosecution.
(vi) No effort was taken for its restoration, rather, the appellant-husband
has again filed afresh matrimonial suit in Patna and the respondent-wife has
to again rush to the Hon’ble Apex Court for its transfer and thereafter, the
matter was transferred to the judgeship of Dhanbad which finally
culminated into the impugned judgment.
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4. Learned counsel based upon the aforesaid submission wants to infer that
it is the conduct of the husband towards his wife which shows cruelty by the
husband. It has also been submitted that so far as the reliance upon the case of
K. Srinivas (supra) by the appellant-husband showing the acquittal in criminal
case to establish the element of cruelty is concerned, the said judgment is not
applicable in the facts and circumstances of the present case, since, ample
evidence is there to establish the element of cruelty and the desertion meted out
by the husband towards the wife.
5. Learned counsel appearing on behalf of the respondent, based upon the
aforesaid grounds, has submitted that the Family Judge while passing impugned
judgment has committed no error and instant appeal is fit to be dismissed.
Analysis:
6. We have heard the learned counsel for the parties and gone through the
findings recorded by the Family Judge in the impugned judgment as also the
evidences available in the trial Court record, which has been called for vide
order dated 05.08.2024 passed by the Co-ordinate Bench of this Court.
7. This Court has gathered issues from the arguments advanced on behalf
of the parties which calls for consideration as under:
(i) Whether the findings recorded by the learned Family Judge with
respect to element of cruelty having not found to be substantiated can be
said to suffer from an error?
(ii) Whether the contention which has been raised on behalf of the
appellant-husband pointing out the error in the finding recorded by the
learned Family Judge in not finding ample evidence to prove the element of
cruelty where the desertion has been cast upon the husband, will it not be
said to be cruel behaviour of the husband towards the wife?
(iii) Whether reliance of the judgment rendered in the case of K. Srinivas
(supra) by the Hon’ble Apex Court in the event of acquittal in a criminal4 F.A No.85 of 2023
2025:JHHC:19306-DBcase can only be a piece of evidence to establish the element of cruelty
leaving aside the other surrounding factual aspect in a particular case?
8. All these three issues are interlinked, and as such, are being taken up
together.
9. But before considering the aforesaid issues, the factual aspect leading to
institution of the suit for dissolution of marriage needs to be referred herein as
per the case pointed out by the appellant-husband in the plaint:-
(I) The appellant/petitioner was legally married to the sole respondent on
22.02.2004 at Official Quarter No. II/48, Shastri Nagar, Moonidih, P.S.-
Putaki, District- Dhanbad, Jharkhand after observing the rituals and
ceremonies prescribed for the marriage according to the Hindu Custom.
(II) The petitioner and the respondent are Hindu as defined in section 2 of
the Hindu Marriage Act, 1955 (hereinafter called as Act)and both the
petitioner and respondent and their parents are the follower of Hindu faith.
(III) The petitioner and respondents and their parents are resident and
domicile within the territory of India since before the aforesaid marriage.
(IV) The respondent after the marriage. came to Patna at the petitioner’s
house and livedtogether as rented accommodation and they lastly resided
there.
(V) The respondent after stay of few weeks at the house of petitioner
expressed her desire to go to her father’s place. During the stay of
respondent at the petitioner’s house, the petitioner felt uneasiness and
unwillingness of the respondent to live at her in-laws although the
petitioner could not said anything to her.
(VI) The petitioner wanted to know the reason of quick departure of the
respondent from her in-laws, but the respondent avoided to disclose the
real fact behind it and forced the petitioner to drop her to her Maike.
(VII) The respondent after that left her in-laws for her father’s place on
15.04.2004 and lived there for more than 12 years and 11 months. The
petitioner wanted to know the reality and after inquiry, it was learnt that
respondent was not willing to live in a joint family as she wanted to live
separately with the petitioner at Dhanbad where the petitioner was posted
as a government employee.
(VIII) It is relevant to point out here that:-
(i) The petitioner’s father Shri Surya Nath Mishra is a retired
government servant and has four sons namely (i) Anil Kumar
Mishra, (ii) Bijay Kumar Mishra (iii) Pramod Kumar Mishra and
the petitioner Binod Kumar Mishra. All the brothers of the
petitioner are married and their wive’s names are as follows: (1)
Asha Mishra wife of Shri Anil Kumar Mishra, (2) Nirmala Mishra
wife of Shri Bijay Kurnar Mishra (3) Urmila Mishra wife of
Pramod Kumar Mishra and Preeti Mshra wife of the petitioner
Binod Kumar Mishra.
(ii) The petitioner and all the brothers were living together and
their mess was in jointness under the supervision of the petitioner’s
father Shri Surya Nath Mishra.
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(iii) It is relevant to point out here that during her stay at sasural
she never adjusted there and also started quarrelling with other
family members of the petitioner and was not willing to help the
family members of the petitioner in any houselhold work. Only due
to pragmatic behavior of the respondent the petitioner has to cook
his food separately for sometime.
(iv) The petitioner is having a government quarter at Dhanbad
whose address is as follows: Quarter No. BB/14, C.M.P.F. Colony,
Jagjivan Nagar, Dhanbad and working in Office of Coal Mines
Provident Fund Commissioner at Dhanbad, which was allotted to
him in the month of November, 2006.
(v) The respondent being native of Dhanbad used to threaten the
petitioner of dire consequences if he will not agree to her demand
of leaving separately from here joint family. The petitioner was
helpless and he was force to leave Dhanbad on 31.05.2007, since
he was posted there.
(vi) Even the in-laws of the petitioner used to send the muscle man
at the quarter of the petitioner at Dhanbad and they forcefully took
away the salary of the petitioner.
(vii) Although both the petitioner and respondent are leaving at
Dhanbad but the respondent never visited the petitioner, but she
took all care to malign the image of petitioner in his residential
colony and at his office. She also used to send him threat that she
will commit suicide.
(viii) Because of the scene created by the respondent the petitioner
was put under great mental stress and trauma, he was unable to
perform his official duty because of loss of social image and
prestige.
(ix) The family members of the respondent also used to threaten the
petitioner to agree to the demand of the respondent to live
separately otherwise he has to face the music.
(x) The family members of the respondents are very strong persons
and rich also, and they are also in league with some criminal
elements being native of Dhanbad. All this factors has made the life
of the petitioner hell and he was desperate to leave Dhanbad.
Although he attempted reconciliation with the respondent and her
family members but all his efforts failed to reconcile there.
(xi) The respondent was not ever willing to compromise and she
insisted for living separately with the petitioner.
(xii) The petitioner is living in a joint tamily since long and all
other family members of the petitioner are having a very good
relation with him and they are very cordial with each other. The
mother of the petitioner died when the petitioner was only 4 years
old. Hence now at this juncture he does not want to leave his father
and desert him when he himself has become an old man and need
help from his sons including the petitioner.
(xiii) The aforesaid facts and circumstances as stated above the
petitioner want to repay the obligation of his family members and
therefore no reason for him to leave his joint family.
(xiv) The respondent in such circumstances is not willing to live
with the petitioner and she is residing at her Maike for more than
12 years and 11 months and the separation is also of more than 12
years with the petitioner.
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(xv) The petitioner has also received threat on his life from his in-
laws family and also bear the pain and cruelty of his in-laws in
these years. That the petitioner after the aforesaid threat went on
long leave and he is still continuing on that and presently residing
at his house at Patna.
(xvi) The family member of the opposite parties threatens the family
members of the petitioner of false implication in criminal cases.
(xvii) In the aforesaid facts and circumstances stated above it is
apparent that respondents is living separately for more than 12
years and she also treated the petitioner with cruelty in which her
family members were in hands to gloves.
(xviii) The cause of action of this petition arose on 22.02.2004
when the marriage of the petitioner was perform with respondent
and subsequently on various occasions when the act of the cruelty
has been committed by the respondent with the petitioner and his
family members and lastly on 15.04.2004 when the respondent
deserted the petitioner in laws house situated at C/115, Police
Colony, P.S.- Gardanibagh, P.O.- Anisabad, District-Patna. Hence
it is within the jurisdiction of this learned Court. The petitioner only
serves at Dhanbad.
(IX) It is relevant to mention here that the petitioner has already filed a
divorce petition bearing Matrimonial (Divorce) Case No. 438 of 2007
against the respondent on 22.08.2007 before the Principal Judge, Family
Court at Patna and notices were also served to respondent, but irrespective
of appearing the court the respondent choose to file a counter-case under
section 498(A) of the Indian Penal Code against the petitioner and all of
his family members at Dhanbad on 06.10.2007.
(X) Again not satisfied with it, the respondent also filed a case for transfer
of the Matrimonial (Divorce) Case No. 438 of 2007 to Dhanbad,
Jharkahand in the Honorable Patna High Court which was later dismissed,
and then they again filed a case for transfer of the said divorce case, in
Honourable Apex Court by filling false affidavit (which was later came to
know to the petitioner) and on that such very ground, the case was
transferred to the Family Court at Dhanbad.
(XI) The said matrimonial divorce case was later dismissed for default on
both the parties as proper pairavi was not done by the learned counsel for
the petitioner as the O.P. has influenced everyone there in Dhanbad. It is
pertinent to mention here that the petitioner in residing in Patna for the last
10 years.
(XII) The main motive of the O.P. for leaving the matrimonial house is to
live separately at the house of her father and keep the petitioner as “GHAR
JAMAI”. She has without informing or consultation of the petitioner after
leaving his matrimonial home completed the B.Ed. course from Raipur,
Chhatisgarh and after that she is teaching as a primary teacher in D.A.V
Public School, Moonidih, Dhanbad.
(XIII) The O.P. and her father hatched a conspiracy and met the Head of
the Department of the petitioner, and also lodged false complaint there and
her father has given false evidence in a disciplinary proceeding against the
petitioner and owing to that the department has dismissed the petitioner
from the services of Government of India.
(XIV) The reason behind leaving the matrimonial home and desertion of the
petitioner by the respondent is only to disturb. harass, malign the image, of
the petitioner and his family members and to the certain stage he has
achieved the same by using various nefarious designs.
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(XV) The respondent has filed a false case under Section 498(A) IPC
against the petitioner and his family members including the elder brother of
the petitioner namely, Anil Kumar Mishra and his wife and he has not
digested the trauma from the time of filling of the case and owing to that he
was in great depression and received severe brain stroke and died on
07.11.2015 leaving a son and wife.
(XVI) The respondent has misused the process of law law in every nook and
corner.
(XVII) The petitioner husband filed this case for the decree of divorce
without any pressure of under influence and without the collusion of the
opposite party.
The petitioner prays for the following relief:-
(i) On adjudication of the claim of the petitioner husband the
decree for divorce to be passed in favour of the petitioner by
dissolving the marriage of the petitioner husband with opposite
party wife.
(ii) The cost of this proceeding be awarded to the petitioner from
the sole respondent.
(iii) Any other relief or relieves to which petitioner is entitled in
the eyes of laws be awarded to him.
10. The respondent-wife appeared on being noticed and she has filed written
statement. Grounds which have been taken in the written statement reads as
under:-
(a) The suit filed by the petitioner for divorce being Matrimonial Case
No.391 of 2017 is pending before the Family Court, Dhanbad being
transferred by the Hon’ble Apex Court and the present suit is Original Suit
(M) No.908 of 2022.
(b) The respondent has nothing to say regarding paragraph Nos. 1 to 3
of the plaint filed by the petitioner.
(c) Regarding paragraph Nos.4, 5 & 6 of the plaint, it is submitted that
some parts of it are true. The Respondent entered into wedlock with the
petitioner according to Hindu rituals and customs and came to her in-laws’
house. Under the same ritual, she arrived on 26 May 2004 and on 13 June
2005 her husbandBinod Kumar Mishra took her to the rented house at
Patna. During this time, in the same colony, plot number C/194 was
purchased for house construction. For the construction of the house, the
land worship (Bhoomi Pujan) was done in June 2006. She was brought
there. With the consent of her father-in-law and mother-in-law, she came to
her Maike at Dhanbad with her brother on 13th June 2006.
(d) Regarding paragraph 8 of the above suit, it is submitted that it is
completely false.
(e) Regarding sub-paragraph Nos.1 & 2 of the paragraph No.8, the
respondent has nothing to say.
(f) Regarding sub-paragraph No.3 of paragraph No.7, it is submitted
that while she was at her in-laws’ house, all household responsibilities
were fulfilled by her and her sister-in-law (Gotni) Nirmala Mishra with full
dedication. Whenever the petitioner was there at Patna, maximum time was
spent by him with sister-in-law (Gotni) Asha Mishra for which she also
argued with him. Other allegations are completely false.
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(g) Regarding sub-paragraph Nos.4 to 17 of paragraph No.8, it is
submitted that it is imaginary and false. The fact is that in November 2006,
on getting accommodation in the CMPF colony, the Petitioner told the
Respondent to come to Dhanbad and when she did the same, he showed her
the accommodation and asked for ₹25,000/- (twenty-five thousand rupees)
to be taken from her father. When she told her father, he arranged the
money and handed it over to him. After that, both of them started living in
the said accommodation, and every week they went to Patna. They stayed in
the quarter for six months. Meanwhile, a case was filed in the CBI Court
against the petitioner and thereafter, petitioner left for Patna after leaving
her at Dhanbad. The petitioner also abused her.
(h) Regarding paragraph Nos.9 and 10 of the plaint, it is submitted that
the respondent had informed that against those persons in the Matrimonial
home, who had tortured her physically and mentally, a complaint case
being Complaint Case No. 1662 of 2007 was instituted in the Dhanbad
Court. The petitioner also filed a divorce petition on 22.08.2007, and a
notice was served to her. To transfer the said case, the respondent had filed
an application before the Hon’ble Apex Court. The Hon’ble Apex Court
accepted the application on 17.04.2010 and transferred the case from
Patna. However, due to non-compliance of the direction of the Court on
23.04.2015 petitioner’s suit was dismissed.
(i) Regarding paragraph No.11 of the plaint, it is submitted that the
T.M.S. No. 309 of 2010 was dismissed on 23.04.2015 for non-compliance of
the Court’s directions. Hence, the Petitioner is making false allegations
that all documents were manipulated at Dhanbad, whereas the same was
dismissed by the learned Court.
(j) Regarding paragraph Nos.12, 13 and 14 of the plaint, it is submitted
that the petitioner’s allegations are false and baseless.
(k) Regarding paragraph No.14 of the plaint, it is submitted that
petitioner wrote a letter on 05.07.2010 while he was in custody in
connection with R.C. Case No. 06(A)/2009 and as soon as she received the
same on 02.08.2010, she got prepared compromise petition and signed it in
front of counsels for both the sides and filed the same in the concerned
court. The petitioner was remanded in connection with C.P Case No.1662
of 2007 and when he got bail, she was waiting outside the Jail with her
brother-in-law and when he came out of the jail, he asked the respondent to
go to Monodih and both brothers went to Patna. She is still waiting for her
husband and she has fulfilled all responsibility of a wife and she is waiting
for the petitioner to act on his letter as promised by him.
(l) The respondent seeks aforesaid relief from the Hon’ble Court that in
this suit the Petitioner should act upon the letter which he sent to her from
Dhanbad Divisional Jail and along with this, he should also fulfill his
marital duties.
11. The learned Family Judge has allowed the parties to adduce evidence
and accordingly the evidences have been led on behalf of both the parties,
which reads as under:-
On behalf of the Plaintiff/ Appellant husband
PW-1 Pramod Kumar Mishra is brother of the plaintiff (appellant
herein). He has testified in his examination-in-chief that his brother was9 F.A No.85 of 2023
2025:JHHC:19306-DBmarried to the respondent Preeti Pandey on 22.02.2004 at Dhanbad and
after marriage she came to his house at Patna. He has further testified that
his brother/the petitioner was posted in CMPF Office at Dhanbad and was
residing there with his friends. He has further testified that after some days
of living in her Sasural, she started quarreling with his family members and
always she was of cruel behaviour with everyone of his family. The
respondent always wanted to live separately with his brother/the petitioner
at Dhanbad in her parental house as ‘Ghar Jamai’ and she left her
matrimonial house on 15.04.2004 in absence of his brother and without
giving information to them and she started residing at Dhanbad and she
never tried to join her matrimonial home.
During his cross-examination, he has completely perjured by stating
that his brother Binod Kumar Mishra never filed any case for divorce
against the respondent. He has further expressed his ignorance regarding
Matrimonial Suit No. 438/2007 which was initially filed by his brother/the
petitioner in the court of Principal Judge, Family Court, Patna, but later on
the said matrimonial suit was transferred to Dhanbad and the same was
dismissed on 23.04.2015.
PW-2 Binod Kumar Mishra is the plaintiff himself. In his examination-
in-chief he has stated that he was married to the respondent Preeti Mishra
on 22.02.2004 at Quarters No. II/48, Shastri Nagar, Moonidih, P.S- Putki,
District- Dhanbad, Jharkhand. After marriage she came to her Sasural at
Patna at C/115, Police Colony, P.S- Gardanibag, P.O- Anisabad, District-
Patna, (Bihar). He has further testified that he used to reside in joint family
with his four brothers as his parents died when he was only of 4 years. He
has further testified that after some days, she started trouble in daily
household work and started showing unwillingness to settle in his house.
On 15.04.2004 she left her matrimonial home and started living at her
father’s house, because she had rude behaviour and she was not willing to
reside in a joint family and she used to quarrel regularly with other family
members. He has further testified that he used to reside in Dhanbad with his
friend, in a common room on sharing basis because by that time he was not
allotted government accommodation in Dhanbad by his department and the
respondent used to reside with her father at Dhanbad after leaving the
matrimonial home and she always pressurized him to leave his joint family
and to reside with her in her father’s house as a ‘Ghar Jamai’. He has further10 F.A No.85 of 2023
2025:JHHC:19306-DBtestified that the respondent used to create social problem in his life by
visiting his friends and colleagues, and spreading misinformation regarding
him and always maligned his image. He has further testified that he tried to
reconcile the issue, but she was adamant to live separately and owing to
this, she always threatened him that she would implicate him and his family
members in a false criminal case. He has further testified that on 19th April
2007, at about 1:30 AM to 2:00 AM, she along with her father, brother and
6 to 7 unknown persons entered into his house and started living there and
her father used to stay in his house every day for 4 to 6 hours and he
informed his employer and fled from there to save his life. He has further
testified that during his stay at his government accommodation she
threatened that she would commit suicide. He has further testified that due
to desertion and mental and physical cruelty he left Dhanbad on 30.05.2007
abandoning his government job by taking leave from office to save his life.
Seeing no alternative he filed a Matrimonial Divorce case in Principal
Judge, Family Court, Patna on the ground of desertion and cruelty on
22.08.2007 and after getting notices she also filed a false criminal case U/s
498 (A) of IPC to save her skin and on 06.10.2007 she also filed a case for
restitution of conjugal rights at Dhanbad. He has further testified that the
respondent after appearing in Matrimonial Suit No. 438/2007 preferred an
application to transfer of that case from Patna to Dhanbad on the basis of
false affidavit in the Hon’ble Apex Court of India and succeeded to transfer
that case to Dhanbad which was later on dismissed for default. He has
further testified that the respondent and her father gave false representation
to his employer and on that representation, the employer initiated a
disciplinary proceeding against him and dismissed him from his
government service on the basis of false deposition of the respondent and
her father.
During his cross-examination in paragraph 26 he has admitted that
he has not stated about the suit for divorce filed by him against his wife and
he has failed to give the accounts of the suit and has admitted that he cannot
state why the suit for decree of divorce was dismissed. During a court
question, he has categorically admitted that he himself has left the
government quarters allotted to him at Dhanbad and in his absence also and
even during pendency of cases between them, his wife/the respondent used
to reside in his quarters. The question was put to him either he was willing
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to take his wife with him, he flatly denied to take his wife with him and has
also admitted that after 2007 he has never offered his wife to come to his
residence. He has admitted to have gone into jail twice in connection with
the criminal cases filed by his wife. In further reply to a question put by the
court whether he would allow his wife to live in his house if she voluntarily
reached there, he replied that he would not let her live with him. From the
above contentions of the petitioner, it is demonstrably clear that long
desertion between the petitioner and the respondent has been caused not by
the respondent rather, by the petitioner himself.
On behalf of Defendant/Respondent wife
DW-1 Preeti Mishra is the defendant herself, who has stated in her
examination-in-chief that on being married off to her husband/ the
petitioner on 22.02.2004 at Moonidih she went to her Sasural and finally in
the year 2005 in the month of June she was taken to Patna by her husband.
Later on she was taken to Dhanbad from Anishabad, Patna on 04.08.2006.
Later on her husband started sharing 99% time of Patna with her GotniAsha
Mishra and on her protest her Gotni Asha Mishra also used to torture her.
On 6th November 2006 a quarter of CMPF, Dhanbad was allotted to her
husband and she came to Dhanbad and entered in the said quarter for which
the petitioner demanded a sum of Rs.25,000/-. Her father Sadaband Dixit
gave the same amount to her husband at Moonidih. After 20 days, her
husband took her to the quarters of CMPF and lived there for 40 days, but
in the meantime an inquiry was started by CBI against her husband on
which he left her at Dhanbad and went to Patna and accordingly she also
handed over the keys of the government quarter of CMPF to her husband’s
friend Rajesh Singh and went to her father’s house at Moonidih. She has
further testified that on 31st May 2007 her husband finally went to Patna
and filed a matrimonial case being Matrimonial Case 438 of 2007, but the
said matrimonial case was dismissed on 23.04.2015 by the Principal Judge,
Family Court, Dhanbad. Again the petitioner filed the Matrimonial Divorce
Suit No.391/2017 before the learned court of Principal Judge, Family
Court, Patna and on the basis of the order of the Hon’ble Apex Court, the
suit has been transferred to Family Court, where it has been registered as
O.S No. 908/2022. She has further testified that in R.C Case No. 06(A) of
2009 her husband was in custody at Mandal Kara, Dhanbad and at the same
time on 05.07.2010 he was remanded in the C.P case filed by her. On
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24.07.2010 Parmod Mishra, brother of her husband, served a letter to her at
Moonidih and on his assurance she kept meeting him at Mandal Kara,
Dhanbad and on 02.08.2010 a paper of agreement was signed by her, by her
husband and the witnesses and on the basis of that compromise petition, the
petitioner obtained bail from the court and same day at about 9:00 PM the
petitioner Binod Kumar Mishra and his brother Anil Kumar Mishra asked
her to go to her parent’s house and went to station and she had no option,
but to reach her father’s house at 11:30 PM. She has lastly testified that still
she is willing to live with her husband at Dhanbad and still she is willing to
live with her husband at any cost.
During her cross-examination, she has admitted that right from 2006
to 2019 her husband has been in talking terms with her but recently he is
telling her that she can live with him only as a friend, and not as a wife. She
lived with her husband in the quarter of CMPF from 19th April to 31stMay
2007 and subsequent to that period,her husband voluntarily left that place
leaving her alone there for a period of three months. She has disclosed that
in the case in which initially her husband was convicted and ordered to
undergo imprisonment of three years, later on the said order of conviction
was set aside by the Appellate Court at Dhanbad, but, she has filed a
criminal revision before the Hon’ble High Court of Jharkhand against the
judgment of acquittal passed by the Sessions Court. She has denied the
suggestion of the petitioner that she is not entitled to live and to continue
her relation with her husband.
DW-2 Devendra Prasad, He has also completely supported the assertions
and averments made by the respondent in her evidence before the court.
12. The learned Family Court has formulated altogether five issues, which
reads as under:-
(i) Whether the plaintiff has valid cause of action for filing this suit
against defendant/respondent?
(ii) Whether the suit filed by the plaintiff is maintainable or not?
(iii) Whether the petitioner is entitled to a decree of divorce under
Section 13(i-a) of the Hindu Marriage Act?
(iv)Whether the plaintiff is entitled to a decree of divorce U/s 13 (1)
(1-b) of Hindu Marriage Act on the ground of desertion?
(v) Whether the plaintiff entitled for any other relief/reliefs?
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13. The learned Family Court has considered two primary issues i.e., the
date of divorce and dissolution of marriage is to be granted under Section 13
(i-a) of the Hindu Marriage Act, 1955 (i.e issue No.3) and the element of
desertion has also been taken as a ground under Section 13 (i-b) of the Hindu
Marriage Act, 1955 (i.e, issue No.4).
14. Issue No.4 has been answered against the appellant-husband by
recording the following findings as available at paragraph No.12 of the
impugned judgment which reads as under:-
“12. From a close scrutiny of the evidence adduced by the plaintiff it has
become demonstrably clear that he has not seen his wife in compromising
position with other person at any moment and he has also hopelessly failed
to bring home the allegation that his wife has deserted him for a continuous
period of not less than two years. Admittedly, there has been a long
desertion between the petitioner and his wife/the respondent but the
desertion has not been at the option of the respondent rather, the desertion
was due to the act of the petitioner himself. A language of Section (i-b) of
the Hindu Marriage Act clear speaks that when the other party have
deserted the petitioner for a continuous period for not less than two years
immediately preceeding the presentation of the petition, he would be
entitled to get a decree of divorce. From the evidence, of the respondent it
has transpired that the respondent/ the wife has been trying to lead a happy
conjugal life with the petitioner, but he is willing to live with any other lady
for the reasons best known to him, therefore, it cannot be believed at any
stretch of imagination that the respondent deserted the petitioner for
continuous period of not less than two years immediately preceding the
presentation of the petition. The petitioner has also failed to bring home
any of the condition in mentioned in the abovementioned case of Samar
Ghosh and has also failed to prove that the respondent has behaved in a
cruel manner with him. On the other hand the respondent has been able to
prove that still she is willing to continue her married life. Accordingly, the
issue No.I, II, III, IV & V are decided against the plaintiff and in favour of
defendant and it is accordingly.”
15. It is evident from the said paragraph that the learned Family Judge has
not found the element of cruelty, rather, he has come out with specific finding
that there has been along desertion between the appellant and the respondent,
but the desertion has not been at the option of the respondent, rather, the
desertion was due to the act of the appellant himself.
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16. It has also been referred therein in the aforesaid paragraph that on
scrutiny of the evidences, it appears that the respondent-wife has been trying to
lead a happy conjugal life with the petitioner, but he is willing to live with any
other lady for the reasons best known to him. Therefore, it cannot be believed at
any stretch of imagination that the respondent deserted the appellant for
continuous period of not less than two years immediately preceding the
presentation of the petition.
17. It further appears from paragraph No.12 as quoted herein above that the
learned Family Judge has gone into the issue of adultery, since, specific
reference has been made to the effect i.e., “from a close scrutiny of the
evidence adduced by the plaintiff, it has come demonstrably clear that he has
not seen his wife in compromising position with other person at any moment
and he has also hopelessly failed to bring home the allegation”.
18. However, learned counsel appearing for the appellant, at this juncture,
has submitted that no such ground of adultery has been taken by the appellant-
husband in the plaint and it was orally submitted by him and therefore,
observationwhich has been made in the impugned judgment pointing out on the
issue of adultery is the error on the face of the order.
19. It further needs to refer herein that the issue No.4 has not been
challenged by the appellant-husband, meaning thereby, whatever findings have
been given on the issue of desertion against the appellant-husband of forcing
the respondent-wife to leave the matrimonial home has been admitted. Since
the same is not challenged before the higher Forum.
20. The issue No.3, which pertains to the issue of cruelty, has also been
answered against the appellant-husband and being aggrieved with the same, the
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present appeal has been preferred by taking the ground as referred herein
above.
21. The meaning of ‘cruelty’ has not been defined in the Act of 1955, rather,
the word ‘cruelty’ has been interpreted by the Hon’ble Apex Court in catena of
decision and some of the decisions are being referred herein.
22. It needs to refer herein that so far the allegation of cruelty is concerned,
the ‘cruelty’ as has been defined by Hon’ble Apex Court in the judgment
rendered in Dr. N.G. Dastane Vs. Mrs. S. Dastane [(1975) 2 SCC 326],
wherein it has been held that the Court is to enquire as to whether the 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.
23. The cruelty has also been defined in the case of Shobha Rani Vs.
Madhukar Reddi [(1988) 1 SCC 105], wherein the wife alleged that the
husband and his parents demanded dowry. The Hon’ble Apex Court
emphasized that “cruelty” can have no fixed definition.
24. According to the Hon’ble Apex Court, “cruelty” is the “conduct in
relation to or in respect of matrimonial conduct in respect of matrimonial
duties and 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 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.”
25. The Hon’ble Apex Court has further observed therein that while dealing
with such complaints of cruelty that it is important for the Court to not search
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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.”
26. 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.
27. 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 cross-examination. The Hon’ble Apex Court held these allegations
against the husband to constitute “cruelty”.
28. In Vijay Kumar 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.
29. 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
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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.
30. The Hon’ble Apex Court in the case of Vidhya Viswanathan v. Kartik
Balakrishnan, (2014) 15 SCC 21 has specifically held that cruelty is to be
determined on whole facts of the case and the matrimonial relations between
the spouses and the word ‘cruelty’ has not been defined and it has been used in
relation to human conduct or human behaviour. It is the conduct in relation to
or in respect of matrimonial duties and obligations. It is a course of conduct
and one which is adversely affecting the other.
31. It is evident from the aforesaid decisions that day to day quarrel or
normal wear and tear of marriage would not constitute mental cruelty as a
ground for divorce, rather, cruelty is a word which can be sensed by taking into
consideration the nature of cruelty in its entirety.
32. The husband and wife, from the day when the marriage has been
solemnized are expected to live with dignity to each other as a husband and
wife. However, if the husband is not allowing the wife to live in the
matrimonial home, it will not amount to cruelty to be meted out by the husband
towards the wife?
33. According to our considered view, cruelty since has got no straight
jacket formula, rather, it is to be assessed by taking into consideration the entire
behaviour either the husband or the wife, as the case may be, and if the
expectation of the wife to live along with the husband in the matrimonial home
is being betrayed by the husband by forcing the wife to depart from the
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matrimonial home, certainly the same will amount to cruelty said to be meted
out by the husband towards the wife.
34. Exactly the same is the case herein since the divorce suit was filed on the
ground of cruelty and desertion. Once the ground has been taken by the
husband then it is the duty cast upon the husband to substantiate the grounds
and if one of the grounds are not being substantiated, particularly, the ground of
desertion as the case herein is, then certainly it cannot be said that it is the wife,
who has subjected her husband meting out cruelty to him, rather, vice versa
situation will be that the husband has subjected the wife to cruelty.
35. It further appears from paragraph No.12 of the impugned judgment that
the reference of an evidence, although, the same has not been found to be
substantiated i.e., the serious allegation upon the wife levelling the issue of
character assassination of his wife, by saying that he had not seen his wife
incompromising position with other person at any moment and he has also
failed to bring the home the allegation.
36. The said finding, since, has not been questioned by the appellant, no
such ground has been taken by making reference that the said finding is the
error of record on the face of the order. The question which has been raised on
behalf of the appellant that sole ground to establish the element of cruelty is the
false accusation made against the husband and his family members by the wife
which is sufficient to establish the element of cruelty. To buttress his argument,
he has relied upon the judgment rendered by the Hon’ble Apex Court in the
case of K. Srinivas (supra).
37. We all are conscious that the judgment passed by the Hon’ble Apex
Court has a binding effect under Article 141 of the Constitution of India, is not
to be made applicable universally rather its applicability is to be adjudged on
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the basis of surrounding facts available in individual case. Reference in this
regard may be made to the judgment rendered by the Hon’ble Apex Court in
the case of in Dr. Subramanian Swamy v. State of Tamil Nadu and Ors.,
(2014) 5 SCC 75, paragraph-47 of the said judgment is being reproduced
hereinbelow :-
“47. It is a settled legal proposition that the ratio of any decision
must be understood in the background of the facts of that case
and the case is only an authority for what it actually decides,
and not what logically follows from it. “The court should not
place reliance on decisions without discussing as to how the
factual situation fits in with the fact situation of the decision on
which reliance is placed.”
38. Adverting to the factual aspect of the K. Srinivas (Supra), as would
appear from paragraph No.2 thereof that the case was filed by the wife for
dissolution of marriage on the ground of cruelty. The cruelty has been tried to
be established on the basis of institution of a criminal case by the wife against
the husband and his family members. The said criminal case finally resulted
into acquittal by the higher Forum.
39. The Hon’ble Apex Court, in the aforesaid pretext, has observed in the
said order by granting the dissolution of marriage that subsequent development
of acquittal in criminal case is also to be taken into consideration for the
purpose of dissolution of marriage, since, false accusation in consequence of
acquittal in a criminal case will be said to be there.
40. We are conscious about the aforesaid position, as has been observed by
the Hon’ble Apex Court in the said case, but the surrounding circumstances of
the present case needs to be seen herein since it is not a case where the
application was filed for dissolution of marriage only on the basis of cruelty,
rather, the application was filed for dissolution of marriage also on the ground
of desertion and cruelty.
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41. We have already observed herein above by making a reference of
specific findings recorded by the learned Family Judge at paragraph No.12 of
the impugned judgment that the element of desertion could not have been
proved rather the husband subjected the wife to leave the matrimonial homeand
to go out and as such as per the definition of ‘desertion’ as has been stipulated
in the Act that all desertion will not come under the fold of the meaning of
desertion, rather, the forceful eviction of the wife will be said to be desertion.
If, either the wife or the husband, as the case may be, have forcefully been
compelled to leave the home then such separation from the matrimonial home
will not come under the fold of desertion.
42. It needs to refer herein that the word ‘desertion’ has been given in
Explanation to Section 13 (1) of the Act 1955 wherein it has been stated that
“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.”
43. It is pertinent to note that the word ‘desertion’, as has been defined in
Explanation part of Section 13 of the Act, 1955, 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.
44. 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 of21 F.A No.85 of 2023
2025:JHHC:19306-DBbringing 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.”
45. 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.”
[
46. 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.
47. 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 the
petition or, where the offence appears as a cross-charge, of the answer.
48. 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.
49. It is, thus, evident from the aforesaid reference of meaning of desertion
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that the quality of permanence is one of the essential elements which
differentiate 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.
50. 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 from the
necessary intention aforesaid.
51. The Hon’ble Apex Court in DebanandaTamuli 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.
52. The law consistently has been laid down by the Court that desertion
means the intentional abandonment of one spouse by the other without the
consent of 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.
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53. The factual aspect of the present case is that the wife has been subjected
to desertion, since, she was compelled to leave the matrimonial home. If the
wife has been deserted then what will happen to the expectation of wife to lead
the conjugal life along with the husband. Will it not be a breach of the
expectation of the wife for which the marriage was solemnized? The second
question would be that if the wife is not working and fully dependent upon the
husband then how she will lead her life?
54. This Court, taking together these two aspects is of the view that if such
situation is available as in the present case, then it will be a case of meting out
cruelty by the husband upon the wife.
55. Further it is settled position of law that allegation of adultery itself
amount to cruelty and if adultery has not been found to be established then the
wife will be said to be subjected to element of cruelty by the husband. The
Hon’ble Apex Court in the case of Vijaykumar Ramchandra Bhate v. Neela
Vijaykumar Bhate, (2003) 6 SCC 334 has observed that the false allegation of
adultery itself amount to cruelty, ready reference the relevant paragraph is
being quoted as under:
7. The question that requires to be answered first is as to whether
the averments, accusations and character assassination of the wife
by the appellant husband in the written statement constitutes mental
cruelty for sustaining the claim for divorce under Section 13(1)(i-a)
of the Act. The position of law in this regard has come to be well
settled and declared that levelling disgusting accusations of
unchastity and indecent familiarity with a person outside wedlock
and allegations of extramarital relationship is a grave assault on
the character, honour, reputation, status as well as the health of the
wife. Such aspersions of perfidiousness attributed to the wife,
viewed in the context of an educated Indian wife and judged by
Indian conditions and standards would amount to worst form of
insult and cruelty, sufficient by itself to substantiate cruelty in law,
warranting the claim of the wife being allowed. That such
allegations made in the written statement or suggested in the
course of examination and by way of cross-examination satisfy the
requirement of law has also come to be firmly laid down by this
Court. On going through the relevant portions of such allegations,
we find that no exception could be taken to the findings recorded by24 F.A No.85 of 2023
2025:JHHC:19306-DBthe Family Court as well as the High Court. We find that they are
of such quality, magnitude and consequence as to cause mental
pain, agony and suffering amounting to the reformulated concept of
cruelty in matrimonial law causing profound and lasting disruption
and driving the wife to feel deeply hurt and reasonably apprehend
that it would be dangerous for her to live with a husband who was
taunting her like that and rendered the maintenance of matrimonial
home impossible.
56. Further arguments which need to be considered herein is the conduct of
the husband that too being an employee of CMPF, has allowed to leave his wife
the official accommodation at Dhanbad and gone to Patna wherein he instituted
a matrimonial case in the year 2007 being Matrimonial Case No. 438 of 2007.
The respondent wife, after knowing about the same had filed transfer petition
before the Hon’ble Apex Court, which resulted into transfer of the said
matrimonial suit to the judgeship of Dhanbad. The Appellant husband had not
started appearing in the said proceeding, in consequence thereof, the suit was
dismissed for non-prosecution. No effort was made by the appellant husband
for its restoration by filing a suit even if it would have taken the shape of a
decree. The appellant has filed fresh suit in Patna being Matrimonial Divorce
Suit No.391 of 2017 before the learned Principal Judge, Family Court, Patna.
The wife has again rushed to the Hon’ble Apex Court for transferring the said
suit. Thereafter, the suit was transferred to the Judgeship of Dhanbad being
Original Suit No.908 of 2022, the issue involved in the impugned judgment.
57. We are of the view that the same is for the obvious reason that the
appellant husband only to harass the wife had chosen not to file application for
restoration rather he had chosen to file a fresh suit in the judgeship of Patna and
again the respondent wife had to rush to the Hon’ble Apex Court for
transferring of the subsequent suit which ultimately culminated into the
impugned judgment.
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58. This Court considering the aforesaid conduct and based upon the
discussions made herein above is of the view that the judgment rendered by the
Hon’ble Apex Court in the case of K. Srinivas (supra) cannot be said to be
applicable in the facts and circumstances of the present case.
59. This Court accordingly is of the view that learned Family Judge has not
committed any error in the impugned judgment and therefore the impugned
judgment requires no interference by this Court.
60. Accordingly, the instant appeal is dismissed.
(Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.)
Jharkhand High Court
15th July 2025
A.Mohanty/Raja(A.F..R)
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