Jharkhand High Court
Dinesh Kumar vs Neelam Kumari on 8 July, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:18319-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No.59 of 2022
-----
Dinesh Kumar, aged about 45 years, son of Shri Uma Shankar Prasad,
resident of Sunder Nagar, Koderma, PO & PS-Koderma, District-
Koderma .......... Petitioner/Appellant
Versus
Neelam Kumari, aged about 37 years, daughter of Ram Lakhan Prasad,
resident of Domchanch Bazar Road, Near Apollo Health Care Centre, PO
& PS-Domchanch, District-Koderma ... Defendant/ Respondent
-------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
-------
For the Appellant : Mr. Ashim Kumar Sahani, Advocate
Ms. Manjulika Horo, Advocate
For the Respondent : Mr. Shubashis Rasik Soren, Advocate
Ms. Shobha Gloria Lakra, Advocate
Ms. Mrinalini A. Tete, Advocate
Ms. Preeti Hembrom, Advocate
Ms. Singi Sharon Demta, Advocate
------
C.A.V on 24.06.2025 Pronounced on 08/07/2025
Per Sujit Narayan Prasad, J.
The instant appeal under section 19(1) of the Family Courts Act,
1984 is directed against the judgment dated 01.06.2022 and the decree
dated 13.06.2022 passed in Original Suit No.26 of 2019 by the learned
Principal Judge, Family Court, Koderma (in short, Family Judge) whereby
and whereunder the petition filed under section 13(1) (i) (i-a) (i-b) 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 case of the petitioner/appellant is as that he was married in
accordance with Hindu rites and customs with
2025:JHHC:18319-DBdefendant/respondent-Neelam Kumari on 28.05.2004 at her
parental house situated at Domchanch Bazar, P.S-Domchanch,
District-Koderma.
(ii) It is alleged that the defendant after one year of marriage she fled
away several times from her matrimonial house without consent of
the petitioner/appellant husband and in-laws and in the beginning
of second year of marriage defendant/wife threatened the
petitioner/husband to leave his parents and stay with her alone
otherwise she will commit suicide and implicate him and his family
members in several cases.
(iii) The O.P/ defendant wife started to behave in a very cruel manner.
Initially, the petitioner was working in a private job.
(iv) A Panchayati was held on 30.12.2005 and accordingly a
Farkatinama (Separation paper) document was made between the
parties and both parties voluntarily signed on that Farkatinama
(Separation paper) in presence of their parents, Punches and
guardians and they decided to live separately and permanent
alimony of Rs. 2,10,245/ was received by O.P/defendant through
two demand draft nos. 180008, 180009, dated 16.06.2006. The
utensils and other household articles were also received by brother
of O.P/defendant, namely, Amit Kumar on 18.02.2006.
(v) It is pleaded that the petitioner got a Government Job in the year
2008 and was posted at Braj Rajnagar, Orissa and the O.P /
defendant contacted him with greedy eyes and threated him she will
involve him in Dowry Act cases as Farkatinama (Separation paper)
has got no value in the eyes of law.
2
2025:JHHC:18319-DB
(vi) The petitioner then started living with O.P/defendant at his working
place and after one year OP/defendant started quarreling with him
and she abused and assaulted him on day-to-day basis from the year
2010-2015. The O.P/defendant tortured the petitioner in various
other ways also.
(vii) It is further stated that petitioner is only one earning member of his
family and parents but after spending several years with O.P /
defendant, she could not conceive, so she was provided treatment
by petitioner on 09.12.2009 at M.C.L Hospital, C.M.C Vellore and
several other places. It is also stated that in the meantime, the
petitioner was transferred from Braj Rajnagar to Colliery of
Basundhara Area, Sundargarh on 21.07.2017. He started residing at
Sundargarh from 22.07.2017.
(viii) It is alleged that the O.P/ defendant fled away from Braj Rajnagar,
Orissa to her parental house situated at Domchanch, Koderma
without consent of petitioner and filed a Complaint Case No.
1001/18 on 08.08.2018 u/s 498A of IPC against petitioner and
others and said case was forwarded by the Court to Domchanch P.S,
where Domchanch P.S Case No. 72/18, dated 04.09.2018 was
registered and Maintenance Case was also filed before Family
Court, Koderma vide O.M. Case No. 127/18.
(ix) It is further alleged that O.P/ defendant during her stay at the
working place of petitioner developed intimacy with other persons
and started leading adulterous life and she has fled away and
deserted continuously the petitioner since 22.07.2017.
3
2025:JHHC:18319-DB
3. On the aforesaid ground of cruelty, desertion and adultery, the
appellant-husband has prayed for a decree of dissolution of the marriage
between him and the respondent-wife.
4. It needs to mention herein that in Original Suit No. 26 of 2019, upon
issuance of the notices, the respondent-wife has appeared and filed a
written statement denying all the allegations levelled against her by the
appellant-husband.
5. She admitted about her marriage with the petitioner Dinesh
Kumar but has denied the other allegations contained in the plaint and
stated that just after three months of marriage, the petitioner and his family
members started demanding a Car as an additional dowry and due to non-
fulfillment of demand, she was abused and tortured physically and
mentally.
6. The O.P/ defendant endured the cruelty meted out to her with a
hope that in future things will get normal. Several times Panchayaties
were also held but without any result. It is also stated that when after one
and half year of marriage, the O.P / defendant could not conceive, so the
petitioner and his family members started calling her a barren lady.
7. The O.P/ defendant lived with the petitioner till 18.06.2006 and
due to mental and physical torture meted out to her and on hearing regular
sarcastic remarks made by petitioner and his family members, the
O.P/defendant started suffering from depression and she became seriously
ill.
8. A Panchayati was held on 18.06.2006 and on seeing pathetic
condition of O.P/defendant, it was decided by the Punches that
both parties should live separately and petitioner gave a sum of
4
2025:JHHC:18319-DB
Rs. 2,10,245/- to this O.P/ defendant for her treatment and also to meet
with other expenses in respect of her treatment.
9. It is further stated that in the year 2009, the petitioner came to
the house of O.P/ defendant and offered his apology to the parents of
O.P/defendant and requested them to permit him to restore his conjugal
life. The petitioner also assured to O.P / defendant that he will keep her
at his service place and will not commit any cruelty on her. The O.P /
defendant agreed on the proposal of the petitioner and she went with him
on 01.08.2009 at his service place to lead her conjugal life with the
petitioner. The petitioner had also executed a declaration paper and
promised in presence of witnesses that he will file an application before
the Marriage Officer to get his marriage registered with the O.P /
defendant and petitioner as per promise got his marriage registered before
the Marriage Registration Officer, Koderma. The O.P/ defendant
thereafter went with the petitioner at his service place and spent four years
together, but again petitioner started committing cruelty on her.
10. It is also stated that since after alleged Farkatinama (Separation
paper) the matrimonial ties between both of them continued for four years,
so the alleged Farkatinama (Separation paper) has got no value in the eyes
of law.
11. It is also stated that during the stay of O.P/ defendant at the
service place of petitioner some disputes occurred when the petitioner was
insisting for his second marriage. So, the complaints were made on
09.09.2016 at Mahila Mandal Samiti, Adarsh Nagar, Ward No. 2, Braj
Nagar, Jhasugora and she also filed a complaint on 17.07.2017 before
5
2025:JHHC:18319-DB
Orient Police Station, Jhasugora, where petitioner was called and he filed
a compromise but still the behaviour of the petitioner was not changed.
12. It is stated that the O.P/ defendant has never left the house of the
petitioner willingly rather she has been driven out by the petitioner after
snatching her entire ornaments. It is stated that O.P/defendant is a faithful
lady and allegations made against her character are far from truth and
objectionable and same has been levelled with ulterior motive and vested
interest. The petitioner never had any cause of action for the suit and same
is liable to be dismissed with exemplary cost.
13. Learned Family Judge, after institution of the said case, taking
into consideration of the pleadings of the appellant and the respondent has
formulated the issues and has decided the lis by refusing to grant divorce
to the petitioner/appellant.
14. 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:
15. Mr. Asim Kumar Sahani, the learned counsel appearing for the
appellant-husband has taken the following grounds:
(i) There is an error in the impugned judgment, since, each and
every aspect of the matter has not been taken into consideration
based upon the documentary evidences as well as ocular
evidences.
(ii) The element of cruelty, desertion and adultery has been found
to be there if the evidences adduced on behalf of the appellant-
husband will be taken into consideration but without appreciating
the same properly, the learned Family Judge has come to the
6
2025:JHHC:18319-DB
finding by holding that no element either of cruelty, desertion or
adultery 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 cruelty at the hands of the respondent-wife due to her
abnormal and cruel behaviour as would be evident from the
evidence adduced on behalf of the appellant-husband, but the
same has not been taken into consideration.
(iv) It has been contended that though the learned Family Judge
has proceeded the matter and dismissed the original suit, but he
has failed to appreciate the evidences adduced on behalf of the
appellant as in the trial, the evidence has come that it was the
respondent-wife who has committed cruelty upon him by her
cruel behaviour and act, deserted the petitioner and leading an
adulterous life by leaving her matrimonial house.
16. The learned counsel, based upon the aforesaid ground, has
submitted that the impugned judgment and decree, therefore, needs
interference on the ground of perversity.
Submission of behalf of the respondent-wife:
17. Mr. Subhashis Rasik Soren, the learned counsel appearing for the
respondent-wife has taken the following grounds:
(i) There is no error in the impugned judgement. The learned
Family Judge has considered the entire issue and on the
basis of evidence as led by the parties has passed the order
impugned as such same may not be interfered with.
7
2025:JHHC:18319-DB
(ii) The appellant has sought divorce on the ground that the
behaviour of the respondent-wife is cruel, she is leading an
adulterous life and has deserted the appellant without any
valid ground but the learned Family Court, after taking into
consideration the oral and documentary evidence, has held
that the entire allegations levelled in are absolutely illegal,
uncalled for and has rightly dismissed the suit.
(iii) It has also been submitted that the learned Family Court
after taking into consideration the material available on
record has found that the conduct of the appellant-husband
has never been towards salvaging the institution of
marriage as it is he who has come for the dissolution of the
marriage, therefore on the pretext of the aforesaid
categorical finding of the Family Court, the impugned
order requires no interference.
18. Learned counsel, based upon the aforesaid grounds, has
submitted that if on that pretext, the factum of cruelty, desertion and
adultery has not been found to be established, hence, the impugned
judgment cannot be said to suffer from an error.
Analysis:
19. We have heard the learned counsel appearing for the parties,
gone through the impugned judgment as well as the Trial Court Records,
as also the testimonies of the witnesses and the documents exhibited
therein.
20. The learned Family Judge has formulated altogether five issues,
for ready reference the same are being quoted hereinbelow:
8
2025:JHHC:18319-DB
i) Whether the present case for divorce is maintainable?
ii) Whether the defendant wife has committed cruelty against
petitioner – husband?
iii) Whether the defendant has deserted the petitioner?
iv) Whether the petitioner is entitled for decree of divorce by
dissolution of marriage between the parties?
v) Whether petitioner has established the adultery of defendant so
as to make a ground of divorce?
21. The learned Family Judge has considered the evidence adduced
on behalf of the parties for deciding the issues involved in Original Suit
No.26 of 2019 as they are interconnected.
22. 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 the parties wherein the element of cruelty, desertion and adultery
has been shown by the petitioner-husband.
23. During the trial, five witnesses have been examined on behalf of
the appellant-husband who himself has been examined as PW5 and
exhibited some documents.
24. In support of her contention, the respondent-wife has also
examined three witnesses including herself as DW3. In support of her
contention, she has also exhibited some documents.
25. On behalf of petitioner several documents have been filed which
have been marked in ‘X’ series for identification, which are:
(i) Exhibit PW.5/1 is xerox copy of compromise dated 01.08.2009
17.07.2011 of Orient Police Station.
9
2025:JHHC:18319-DB
(ii) Mark X/1 is document of medical treatment – 71 sheets.
(iii) Mark X2 is C.D cassette.
(iv) Mark X3 is Farkatinama (Separation paper) dated 18.06.2006 -2
sheets.
(v) Mark X4 is receipt of State Bank of India – 2 sheets.
(vi) Mark X5 is xerox copy of Demand Draft No. 180008 and 180009,
dated 16.06.2006-1 sheet.
(vii) Mark X6 is receipt of articles – 2 sheets.
(viii) Mark X7 is medical book of Neelam Kumari issued by C.N.O
Central Hospital, MCL, Biraj Nagar.
(ix) Mark X8 is report of Central Hospital, Orissa (MCL) of Neelam
Kumar and Dinesh Kumar – 4 sheets.
(x) Mark X9 is sanction order (MCL), dated 30.04.2013 accorded to
Dinesh Kumar for treatment of his wife Neelam Kumari – 2 sheets.
(xi) Mark X10 is office order issued by MCL dated 21.07.17 regarding
transfer of Dinesh Kumar – 1 sheet.
(xii) Mark X11 is xerox copy of release order of Dinesh Kumar dated
21.07.2017 issued by Colliery Manager, Orient Colliery – 1 Sheet.
(xiii) Mark X12 is brief case report with investigation dated 24.01.2014
of Neelam Kumari issued by Central Hospital, MCL, Biraj Nagar-
1 sheet.
(xiv) Mark X13 is discharge summary of Neelam Kumari issued by
C.M.C, Vellore-1 sheet.
(xv) Mark X14 is O.P/ defendant.D Ticket of Jagnyaseni Hospital,
Bheramal, Jhasugora dated 19.04.10, 13.05.10, 11.06.10, 02.07.10
to 26.12.12-14 sheets.
10
2025:JHHC:18319-DB
(xvi) Mark X15 is consolidated voucher dated 09.08.2012 of C.M.C
Vellore report and bill-6 sheets.
(xvii) Mark X16 is medical reimbursement (essentiality) certificate dated
09.08.2012 of C.M.C, Vellore and Ultrasound report of Neelam
Kumari issued by Jagnyaseni Hospital- 4 sheets,
(xviii) Mark X17 is medical treatment, report and bill of ST. Lukes Clinic,
Jabalpur-7 sheets.
(xix) Mark X18 is Ultrasonography report dated 25.01.13-1 sheet.
(xx) Mark X19 is medical treatment report of C.M.C Vellore, dated
03.08.13 to 09.04.13-11 sheets.
26. On behalf of respondent-wife several documents have also been
filed which have been marked in ‘Y’ series for identification, they are as
follows: –
(i) Mark Y is xerox copy of declaration letter dated 01.08.19 jointly
signed by Dinesh Kumar and Neelam Kumari.
(ii) Mark Y/1 is xerox copy of letter dated 15.05.2017 addressed to
Regional Manager, Mahila Samiti Braj Rajnagar.
(iii) Mark Y/2 is xerox copy of General Diary no.11, dated 17.07.2017
of Orient Police Station.
(iv) Mark Y/3 xerox copy of application dated 17.07.2017 addressed to
Officer Incharge, Orient Police Station.
(v) Mark Y/4 is xerox copy of extract of G.D. No. 11 dated 17.07.2017
of Orient Police Station.
(vi) Mark Y/5 is xerox of Marriage Certificate issued on 05.05.2015.
11
2025:JHHC:18319-DB
(vii) Mark Y/6 is xerox copy of application dated 09.09.2016 given by
Neelam Kumari to Mahila Mandal Samiti, Braj Rajnagar.
(viii) Mark Y/7 is xerox copy of application given by Neelam Kumari
dated 17.07.2017 to Officer In-charge, Orient Police Station.
(ix) Mark Y/8 is xerox copy of the application dated 17.02.2018 given
by Neelam Kumari to Officer In charge, Orient P.S.
(x) Mark Y/9 is Razināma entered between Dinesh Kumar and Neelam
Kumari.
27. In his examination on oath as PW5, the appellant-husband has
narrated entire things as pleaded in the plaint about his marriage with the
respondent. He has stated on oath that his marriage was solemnized with
the O.P/defendant on 28.05.2004 in accordance with Hindu rites and
customs, He stated that after one year of marriage his wife used to flee
away from Sasural without his consent and without any information to
her in laws. He stated that his wife started exerting pressure on him to live
separately with her and when he denied, she threatened him to implicate
in false cases and her behaviour changed. She started behaving in a very
cruel manner with him and with his family members. He further stated
that a Panchayati was called on 30.12.2005 and according to the decision
of Panchayati and with the consent of guardians of both sides a
Farkatinama (Separation paper) was prepared on 18.06.2006. He has filed
the xerox copy of the said Farkatinama (Separation paper) on which he
and his wife had put their signature, there are signature of father of the
O.P/defendant and other persons also. He stated that he gave a permanent
alimony of Rs. 2,10,245/- through two demand drafts, copy of the same
has been filed by him. He also stated that household articles of worth Rs.
12
2025:JHHC:18319-DB
55,900/- was returned by him which was received by brother of O.P
/defendant Amit Kumar on 18.02.2006. He filed the receiving of the same
also. He further stated that he later on got Government Job at Braj
Rajnagar, Orissa, and the O.P started saying to him to take her there
otherwise she will implicate him in dowry cases and pressurized on him
to take her there and she came to Orissa and again started committing
cruelties on him. She never gave breakfast to him on time and started
spending her time with Mahila Mandal Groups and developed contact
with several other persons. When he forbade her to not remain in touch
with another person on which she threatened, abused and assaulted him.
He has stated that he faced all odds situations and got her consulted
with doctor for infertility. He has filed several documents regarding her
treatment made at MCL., Jagnyaseni Hospital, Jhasugora, St. Lukas
Clinic, Jabalpur and CMC Vellore which has been exhibited in the case.
He further stated that on 21.07.2017 he was transferred from MCL to
Sundargarh and he is living separately at Sudargarh since 22.07.2017.
He has stated that due to cruel behaviour of O.P/defendant, her
infertility and difference in thought, it has become difficult for him to lead
the matrimonial life with her, so he has filed the present divorce case.
In cross-examination he has stated that he has filed this divorce case
after institution of maintenance case by O.P/ defendant (respondent
herein). He denied that he has filed any divorce case after the Farkatinama
(Separation paper) of 2006. He also admitted that in the divorce case he
had gone to Judicial Custody and said case is still pending and later on he
has filed this divorce case. He also stated in his cross examination that he
has not filed any complaint at any place regarding cruel behaviour of O.P/
13
2025:JHHC:18319-DB
defendant. He admitted that after the agreement of 2009 he started living
with O.P / defendant and subsequently in the year 2009 his marriage with
the O.P / defendant was registered. He admitted that his wife made
complaint in Orient P.S on 09.09.2016 in which on pressure, he
compromised with O.P/defendant but he did not complaint about the said
pressure to any senior Police Officer. He also admitted his writing and
signature made on 17.07.2017 in General Diary entry. He has denied the
suggestion that he committed cruelties on his wife as a result she came to
her Maika. He also denied from the suggestion that he has filed this
divorce case only for the purpose of saving himself from the cases filed
by O.P/ defendant.
28. PW1-Virendra Kumar Ram is a deed writer. He has stated in his
examination in chief on oath that he knows both parties and marriage of
Dinesh Kumar was solemnized with Neelam Kumari about 15 years ago
in accordance with Hindu customs. He has further stated that Neelam
Kumari could not conceive as she had some defects as a result Neelam
Kumari became of irritative nature and started committing abnormal
behavior towards her husband and his other relatives and she started
quarreling, and abusing them. He also stated that lastly petitioner decided
to be separated from her in the year 2006 and a Farkatinama (Separation
paper) was prepared in which both parties voluntarily put their signature
in presence of respectable persons of the society and for one time
settlement an amount of Rs. 2,10,245/-was also given by petitioner to his
wife. He also stated that later on plaintiff got Government Job and O.P /
defendant became greedier and came to her Sasural and stayed from the
year 2010-2015 but she started behaving in a crueler manner with her
14
2025:JHHC:18319-DB
husband and in-laws and started pressurizing the plaintiff / petitioner to
take her to the place of his work and she was also taken there. She
committed cruelties on the petitioner on day-to-day basis and threatened
to implicate him in false cases. The petitioner got her treated for not
conceiving and she used to flee away always from there and came to her
Maika. It is also stated that the O.P/ defendant is residing separately at her
Maika at Domchanch from July 2017 and she often visited her Sasural at
Sundar Nagar, Koderma and quarreled with her in-laws and also with
petitioner when he visited at Koderma.
In his cross-examination, he stated that he knows that in the
maintenance case filed by O.P/ defendant an order for payment of
Rs. 8,000/- per month has been passed against petitioner/ plaintiff. He
stated that he had never seen any quarrel between them. He also stated
that he has heard that after Farkatinama (Separation paper),
a compromise was entered between both sides in the year 2009 and
Dinesh Kumar started living with Neelam Devi, but he cannot say as to
whether he took her to his work place or not. He denied from the
suggestion that when O.P/defendant filed case under dowry Act and case
for maintenance, then Dinesh Kumar filed the present case. He also stated
that he cannot file any documentary evidence regarding allegations
levelled against O.P /defendant.
29. PW2 is Shiv Shankar Ram. He stated in his examination in chief
on oath that he knows both parties and marriage of Dinesh Kumar was
solemnized with Neelam Kumari about 15 years ago in accordance with
Hindu customs. Neelam Kumari could not conceive from her conjugal
relationship with petitioner as she had some defects due to which she
15
2025:JHHC:18319-DB
became very irritative and started behaving in a very cruel manner with
her husband and other relatives. Her behaviour became very abnormal
and she started abusing, quarreling with the petitioner and others. Dinesh
Kumar was in a Private Job and he decided to get separated from the O.P/
defendant in the year 2006 and a Farkatinama (Separation paper) was
prepared in which both parties voluntarily put their signature in presence
of respectable persons of the society and a one-time permanent alimony
of Rs. 2,10,245/-was given to the O.P/ defendant and her entire articles
were also returned back to her. He has also stated that subsequently
Dinesh Kumar got Government Job as a result O.P/ defendant became
very greedy and she came to her Sasural and stayed from the year 2010-
2015, but again she started quarreling with her in laws and insisted on the
petitioner to take her to his work place. The petitioner took her to
Orissa where he was in service and got her consulted in various Hospital
for her infertility. The O.P/ defendant behaved with petitioner in a cruel
manner at Orissa also and she abused, assaulted him and threatened to
implicate him in false cases. She also fled away several times from there
to her Maika and she is living in her Maika since July 2017 and during
this period she often visited her Sasural situated at Sundar Nagar,
Koderma. He has stated that she used to quarrel with her in laws and
husband when he visited Koderma.
In cross-examination, this witness stated that he has not himself seen
the cruel behaviour of the O.P/defendant. He has stated that he has no
knowledge that in the year 2009 petitioner had given a written apology
and took the O.P/ defendant with him. He also stated that he has no
knowledge that amount of Rs. 2,10,245/- and household articles returned
16
2025:JHHC:18319-DB
by petitioner has again been given to him by the O.P /defendant. He
categorically stated that no incident of cruelty allegedly committed by
O.P/ defendant has taken place in his presence. He has also stated that he
has no knowledge about the incident which has taken place with the O.P/
defendant.
30. PW3 is Sarita Kumari. She stated in her examination in chief on
oath that she knows both parties and marriage of Dinesh Kumar was
solemnized with Neelam Kumari about 15 years ago in accordance with
Hindu rites and customs. Neelam Kumari could not conceive from her
conjugal relationship with petitioner as she had some defects as a result
she became very irritative and started behaving in a very cruel manner
with her husband and other relatives. She has stated that behaviour of the
O.P became very abnormal and on daily basis she started abusing,
quarreling with the petitioner and others. Dinesh Kumar was in a Private
Job and he decided to be separated from the O.P/defendant in the year
2006 and a Farkatinama (Separation paper) was prepared in which both
parties voluntarily put their signature in presence of respectable persons
of society and a one-time permanent alimony of Rs. 2,10,245/- was given
to the O.P/defendant and her entire articles were also returned back to her.
She also stated that subsequently Dinesh Kumar got Government Job as a
result O.P/ defendant became very greedy and she came to her Sasural
and stayed from the year 2010-2015, but again she started quarreling with
her in laws and insisted on the petitioner to take her to his work place. On
her insistence, the petitioner took her to Orissa where he was in service
and got her consulted in various Hospital for her infertility. The O.P/
defendant behaved with petitioner in a cruel manner at Orissa also and she
17
2025:JHHC:18319-DB
abused, assaulted him and threatened to implicate him in false cases. She
fled away several times from there to her Maika and she is in her Maika
since July 2017 and often visited her Sasural situated at Sundar Nagar,
Koderma and quarreled with her-in-laws and husband when he visited
Koderma. She also stated that Neelam Kumari is a lady of bad character
and remains in touch with several persons. She further stated that father
of O.P/ defendant is a retired Gazetted Officer and her brother is a Post
Master, so she does not behave properly with her-in-laws and with
petitioner.
In cross-examination, this witness has stated that she came to
know about Farkatinama (Separation paper) of the year 2006 from one
Umashankar Prasad and also came to know about the payment of
Rs. 2,10,245/- to O.P/defendant by one Virendra Ram. She also stated that
she has no knowledge that O.P/defendant started living with the petitioner
from the year 2009 under an agreement. She stated that she herself
has seen the cruel behaviour of O.P/defendant but she cannot say the date,
month and year of the same. She cannot say the name of the persons with
whom the O.P/ defendant remains in touch.
31. PW4-Umashankar Prasad is the father of petitioner. He has stated
in his examination in chief on oath that he knows both parties. He has
stated that the marriage of Dinesh Kumar was solemnized with Neelam
Kumari about 15 years ago in accordance with Hindu rites and customs.
Neelam Kumari could not conceive from her conjugal relationship with
petitioner as she had some defects due to which she became very irritative
and started behaving in a very cruel manner with her husband and with
them. He has stated that her behaviour became very abnormal and she
18
2025:JHHC:18319-DB
started abusing, quarreling with the petitioner and themselves. Dinesh
Kumar was in a Private Job and he decided to get separation from her in
the year 2006 and a Farkatinama (Separation paper) was prepared in
which both parties voluntarily put their signature in presence of
respectable persons of the society and a one-time permanent alimony of
Rs. 2,10,245/-was given to the O.P/ defendant and her entire articles were
also returned back to her. He also stated that subsequently Dinesh Kumar
got Government Job as a result lust of O.P / defendant increased and she
became very greedy. He has stated that on getting the Government Job the
OP came to her Sasural and stayed from the year 2010-2015, but again
she started quarreling with them and insisted on the petitioner to take her
to his work place. The petitioner took her to Orissa where he was in
service and got her consulted in various Hospital for her infertility. The
O.P/ defendant behaved with petitioner in a cruel manner at Orissa also
and she abused, assaulted him and threatened to implicate him in false
cases and also threatened to commit suicide. She also fled away
several times from there to her Maika and she is in her Maika since July
2017 and often visited her Sasural situated at Sundar Nagar, Koderma.
She has stated that the OP started quarrelling with him, his wife and with
her husband when he visited Koderma. She also threatened on mobile and
he further stated that she is a woman of bad character and has contact with
several persons. He also stated that his son is making payment of monthly
maintenance allowance of Rs. 8,000/- to her on the direction of the Court.
He further stated that the father of the O.P/defendant is a retire Gazetted
Officer, her brother is a Post Master and she herself is a Graduate whereas
the petitioner is Intermediate pass and he himself is a retired Assistant
19
2025:JHHC:18319-DB
Teacher from a Government School. He has stated that there is difference
of status also, so the O.P/ defendant misbehaves with them and always
commit cruelties on his son.
In cross examination, he has stated that marriage of petitioner with the
O.P/ defendant was solemnized in the year 2004 and O.P/defendant could
not conceive. He has denied the suggestion that the petitioner himself
committed cruelties on O.P/ defendant for demand of additional dowry.
He has stated about Farkatinama (Separation paper) prepared in the year
2006. He has stated in his cross examination that it is not in his memory
about any agreement prepared between the parties in the year 2009, but
when the said agreement was shown to him during cross examination, he
admitted his signature which was put by him in the agreement of year
2009. He also stated that no divorce case was filed after alleged
Farkatinama (Separation paper). He has denied from the suggestion that
petitioner wants to solemnize second marriage, so he has filed the divorce
case.
32. DW1 is Rajkishor Ram. He is a co-villager of O.P/defendant and
admitted about the marriage of both parties which was solemnized in the
year 2004. He has stated that O.P/defendant could live properly in her
matrimonial house for few days after marriage and came back to her
Maika in the year 2006 as her physical condition was not good. He stated
that petitioner was not willing to keep her, so a Panchayati in the village
was called in which he was one of the Punches and after hearing both
sides it was decided that both of them should live separately. He has stated
that the petitioner gave Rs. 2,10,245/- to O.P/ defendant for her treatment.
He also stated that in the year 2009 petitioner again came to the house of
20
2025:JHHC:18319-DB
O.P/ defendant and tendered his apology and requested the parents of O.P/
defendant that he wants to keep her and they will live at the place where
he is in service and he also assured that no cruelties shall be committed
on her and a declaration was prepared. Accordingly, the O.P/ defendant
went to reside with petitioner in the year 2009 and both started cohabiting
with each other. He also stated that after few days the O.P/ defendant
again came back to her Maika and he learnt from her parents that
petitioner is committing physical and mental torture on O.P/ defendant as
she is not conceiving.
In cross-examination, he admitted that a Panchayati paper prepared in
the year 2006 and also the fact of receiving of Rs. 2,10,245/- by the
OP/defendant. He reiterated in his cross-examination that petitioner later
on went to the parents of O.P/ defendant and accepted his guilt and assured
to keep the O.P/ defendant properly, so she was sent back with the
petitioner and a declaration of the same was prepared in the year 2009. He
has admitted that petitioner got the O.P/ defendant treated at various
places for her infertility. He denied that O.P/defendant has fled away from
Braj Rajnagar to her Maika.
33. DW2 is Amit Kumar who is brother of O.P/defendant. He has
also stated about the marriage of his sister with the petitioner which was
solemnized on 28.05.2004 in accordance with Hindu rites and customs.
He has stated further that after few days of marriage her husband and other
relatives of her husband started torturing the O.P/ defendant as a result she
fell sick and became a patient of depression and came to her Maika in the
year 2006. He has also stated that a Panchayati was called in the village
on 18.06.2006 and Punches after hearing both sides decided that both
21
2025:JHHC:18319-DB
parties should live separately and petitioner gave Rs. 2,10,245/- to O.P/
defendant for treatment. When the O.P / defendant became fit, petitioner
in the year 2009 came to his house and requested his sister and parents
that he wants to live with the O.P/ defendant, he also confessed his guilt
and assured that he will keep her properly at his service place and will not
commit any physical/mental torture on her. A declaration was also made
by petitioner in the year 2009 on which petitioner as well as his sister have
voluntarily put their signature in his presence and his sister went to live
with the petitioner and their matrimonial life was restored. He further
stated that his sister was living at Braj Rajnagar, Jhasugora where her
husband addressed his sister as barren lady and committed cruelties on
her for which his sister made complaint in Mahila Samaj, Adarsh Nagar
and she also gave an application on 17.04.2017 in Orient P.S, where
Police Officer called both parties and got the dispute compromised. He
further stated that petitioner has forcibly pushed his sister out of the house,
so his sister is living in her Maika at Domchanch.
In cross-examination, he denied that any Farkatinama
(Separation paper) was prepared on 18.06.2006, on seeing the paper he
stated that on the document only Farkatinama (Separation paper) was
written. He also admitted that household articles were returned by the
petitioner to him. He denied the suggestion that petitioner has not ever
committed cruelties on his sister and she was in the habit of wandering
with another person. He also denied that his sister fled away and came
back to her Maika from Braj Rajnagar on 21.07.2017 when petitioner was
transferred from Braj Rajnagar to Sundargarh.
22
2025:JHHC:18319-DB
34. DW3 is the O.P/ defendant herself. She stated about her marriage
with the petitioner which was solemnized in accordance with Hindu rites
and customs on 28.05.2004 and after marriage she went to her Sasural
where she was kept properly for few days only and thereafter her husband
and his relatives started committing physical and mental torture on her.
She has stated that due to torture as a result she became ill and in the year
2006 she was pushed out from the matrimonial house. She stated that on
18.06.2006 a Panchayati was convened in the village, where Punches
after hearing cruelties of the petitioner advised that both parties should be
separated and petitioner gave Rs. 2,10,245/- for her treatment. She has
stated that in the year 2009 her husband / petitioner came to her and
apologized for his wrong and requested her and her parents to take her
back and also assured that he will not commit any cruelties on her and will
keep her at his service place, a declaration to this effect was prepared on
which both sides voluntarily put their signature and she went with him in
the year 2009 for leading her conjugal life with the petitioner. She also
stated that their marriage was registered before Marriage Registration
Officer, Koderma and they started again living as husband and wife from
the year 2009 and for few days their relation was quite normal but again
the petitioner started committing torture on her and addressed her as a
barren lady. She gave complaint in the year 2017 to Mahila Samaj, Adarsh
Nagar and also to Orient P.S Jhasugora. She further stated that on
17.04.2017 she and her husband was called in the Police Station and her
husband gave a bond to keep her properly but still there was no change in
his attitude and he continued to perpetrate physical and mental torture on
her and pushed her out from his house and since then she is living in her
23
2025:JHHC:18319-DB
Maika. She has stated that she filed a Dowry Case and Maintenance Case
against the petitioner thereafter the petitioner filed this case on false
ground for divorce.
In cross-examination, she has denied that she ever fled away
from her Sasural and also gave any threats for committing suicide. She
admitted that in view of Panchayati on 30.12.2005, her father, brother and
uncle took back items which were given at the time of marriage and also
Rs. 2,10,245/- and Farkatinama (Separation paper) was prepared on which
she also put her signature. She also reiterated in her cross-examination that
on the basis of written declaration executed on 03.08.2009 she went with
petitioner again and lived with him from the year 2009 to 21.07.2017 at
Braj Rajnagar, Orissa. She also admitted that her husband got her treated
at several places as she was not conceiving. She has empathetically denied
the suggestion that petitioner never committed any cruelties on her and she
had illicit relationship with any other persons. She also denied the
suggestion when her husband was transferred from Braj Rajnagar
to Sundargarh, she returned back to her Maika and she also denied the
suggestion that when her husband forbade her to not keep illicit
relationship with other persons, so she came back to her Maika at
Domchanch.
35. The fact about filing of suit by taking plea of cruelty, adultery
and desertion is admitted one as per the evidences adduced on behalf of
the appellant-husband.
36. The appellant-husband all along has alleged the issue of cruelty,
adultery and desertion which he was subjecting to by his wife and in order
24
2025:JHHC:18319-DB
to establish the same the evidences has been laid as has been referred
hereinabove.
37. This Court while appreciating the argument advanced on behalf
of the appellant-husband 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.
38. 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) 1
SCC 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.
25
2025:JHHC:18319-DB
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.
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.”
39. In the instant case, the ground for divorce has been taken on the
ground of cruelty, adultery and desertion.
26
2025:JHHC:18319-DB
40. 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.
41. 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.
42. 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
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.”
43. 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.”
27
2025:JHHC:18319-DB
44. 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.
45. 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”.
46. 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.
47. It requires to refer herein that the Hon’ble Apex Court in
Joydeep Majumdar v. Bharti Jaiswal Majumdar, (2021) 3 SCC 742, has
observed 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”
28
2025:JHHC:18319-DB
and trivial irritations and normal wear and tear of marriage would not
constitute mental cruelty as a ground for divorce.
48. It needs to refer herein that it is settled position that a proceeding
under Hindu Marriage act is not criminal proceeding where proof beyond
reasonable doubt is required rather “preponderance of probability” is
enough. However, the character of spouse affects his/her reputation in the
society. Therefore, it is established proposition of law, that not only the
pleading in respect of charge of adultery should be specific, it should also
be established in all probabilities. The accepted rule, therefore, is that
circumstantial evidence is all that can normally be expected in proof of
charge; However, the circumstances must be such as to lead to fair
inference, as a necessary conclusion. In other words, proof required to
prove adultery need not necessarily be what is at times said to be proof
beyond a shadow of doubt, “It need not reach certainty but must carry a
high degree of probability”.
49. Now adverting to the factual aspect, it is evident from the
impugned order that the allegations specific to the ground of alleged
cruelty and adultery has been made by petitioner/plaintiff-husband.
50. The aforesaid pleading has been taken care of by the learned
Family Judge and has observed that the petitioner has not alleged that he
has ever seen any specific incident confirming his suspicion that his wife
is being in adulterous relationship. The learned Family Judge while taking
into consideration the established proposition of law, that not only the
pleading in respect of charge of adultery should be specific, it should also
be established in all probabilities, has negated the claim of the appellant-
husband.
29
2025:JHHC:18319-DB
51. In its finding at para-21 and 22 of the impugned judgment, the
learned Family Judge after going through the evidence on record has
explained in detail about non-proving of allegations of of cruelty, desertion
and adultery by the respondent-wife and held that the divorce suit is not
maintainable, which reads as under:
“21. The documents marked as Exhibit and marked for identification on
behalf of petitioner shows that petitioner is relying on Farkatinama
(Separation paper) but the said Farkatinama (Separation paper) can not
be ground of divorce as subsequently parties started to reside together
and led their conjugal relationship. The petitioner and O.P/ defendant
after alleged Farkatinama (Separation paper) has also got their
marriage registered before Marriage Registration Officer. Marriage
certificate of both parties issued on 05.05.2015 has been marked as Y/5
on behalf of O.P/ defendant. The material available on record and from
the evidence, it appears that main reason for discord of the matrimonial
relationship is due to fact that O.P/ defendant could not conceive with
petitioner. Petitioner has filed various documents in support of his
contention. He got the O.P/ defendant treated at MCL Hospital,
Jagnyaseni Hospital, St. Lukas Clinic, Jabalpur and CMC, Vellore but
the alleged infertility of the O.P/ defendant can not be said to be a ground
for seeking a decree for divorce. Petitioner has filed bunch of documents
for the purpose of showing that he took her to several places and got
O.P/ defendant treated for her infertility but these documents can not
strengthen claim of petitioner for divorce.
Petitioner has also taken alleged adultery of O.P/defendant as a ground
of divorce. The adultery is laid down as one of the ground for divorce or
judicial separation, but to prove adultery it should be shown that there
was an act of sexual intercourse out side the marriage and that such
intercourse should be voluntarily. Petitioner has simply alleged that
O.P/defendant used to wander with other person when he took her to
Braj Rajnagar, Orissa but there is no evidence at all from which it may
be inferred that she was in adulterous relationship with any other person.
There is no oral or documentary evidence from which, the contention of
the petitioner gets support. The claim of the petitioner that O.P/
defendant has herself fled away from Braj Rajnagar when he was
transferred to Sundargarh, Orissa, the transfer order dated 21.07.2017
of petitioner has A been marked as X10 for identification for the purpose
of showing his transfer. The document filed on behalf of O.P/ defendant30
2025:JHHC:18319-DBand on which O.P /defendant has admitted her signature which has been
marked as Y/9 for identification, shows that there was dispute between
petitioner and O.P/defendant and on 17.07.2017 they gave Rajinama that
they will happily lead their matrimonial life, so few days after the said
Rajinama the O.P /defendant is said to have fled away which appears to
be not convincing and acceptable. O.P/defendant in her oral evidence
has consistently stated that she was driven away by petitioner from his
quarter situated at Braj Rajnagar. This statement of O.P/ defendant that
she was kicked out by petitioner has not been contradicted by petitioner
in his cross examination and there is no documentary evidence either
filed by petitioner to show O.P / defendant fled away from his quarter at
Braj Rajnagar. One of the ground taken by the petitioner is desertion of
the O.P/ defendant and for desertion to be a ground for divorce it should
be shown by the petitioner that the O.P/ defendant deserted the place of
petitioner without any reasonable cause and without the consent and
against the will of the spouse but from the evidence and material
available on record it is clear that O.P /defendant has not voluntarily
deserted the house of the petitioner rather she has been kicked out by the
petitioner from his house.
22. In the light of above discussion and in the facts and circumstances, I
find that the present original suit as filed by husband Dinesh Kumar is
not maintainable as petitioner has failed to establish any of the
grounds for divorce.”
52. Thus, from the aforesaid it is evident that the learned Family
Judge has considered the fact that the appellant-husband has miserably
failed to establish the allegation of illicit relationship of the respondent-
wife with other person which also amounts to “cruelty’ upon the
respondent-wife at the hands of the appellant.
53. At this juncture it would be apt to refer the definition of desertion
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.
31
2025:JHHC:18319-DB
54. 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.”
55. 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.
56. 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.
57. 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
32
2025:JHHC:18319-DB
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.
58. 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.
59. 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.
60. 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
33
2025:JHHC:18319-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.”
61. 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.
62. 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.
63. The appellant-husband although has taken the ground of cruelty
meted to him by his wife but, in course of trial he has failed to establish
the element of cruelty meted out to him at the hands of the respondent-wife
as discussed hereinabove.
34
2025:JHHC:18319-DB
64. 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 appellant and
the witnesses adduced on his behalf during the trial that the appellant has
committed cruelty upon the respondent-wife by alleging that she is leading
an adulterous life and she has illicit relationship with some other person
and, as such, she was forced to leave the house due to mental and physical
torture.
65. 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, adultery and desertion has well been
considered by the learned Family Judge.
66. On consideration of the evidence, the learned Family Judge has
come to conclusion that the appellant-husband has miserably failed to
establish the ground of cruelty, adultery and desertion against the
respondent-wife.
67. The aforesaid reason has led the learned Family Judge to dismiss
the suit.
68. 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.
35
2025:JHHC:18319-DB
69. This Court, therefore, is of the view that the judgment dated
01.06.2022 and the decree dated 13.06.2022 passed in Original Suit No.
26 of 2019 by the learned Family Judge needs no interference and,
accordingly, the instant appeal stands dismissed.
70. Pending I.As, if any, stands disposed of.
(Sujit Narayan Prasad, J.)
I Agree.
(Rajesh Kumar, J.)
(Rajesh Kumar, J.)
Sudhir
Dated:08/07/2025
Jharkhand High Court, Ranchi
AFR
36
[ad_1]
Source link