Patna High Court
Sudhir Rai @ Sudhir Ray vs Sulekha Devi on 2 July, 2025
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.104 of 2023
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Sudhir Rai @ Sudhir Ray S/o Late Jay Mangal Rai Resident of Village-
Vishunpur Basant @ Shubhai, P.O.-Shubhai, P.S.-Hajipur Sadar, District-
Vaishali.
... ... Appellant/s
Versus
1. Sulekha Devi W/o Sudhir Rai, D/o Manohar Prasad Yadav, Resident of
Village-Vishunpur Basant @ Shubhai, P.O.-Shubhai, P.S.-Hajipur Sadar,
District-Vaishali, at presently (K) Resident of Village-Anantpur, P.O.-
Madhopur, P.S.-Chandi, District-Nalanda (kh) C/o Sudhir Kumar, R/o
Ravindra Rai, Resident of Village-Terasia, P.O.-Ratnakar, P.S.-Ganga Bridge,
District-Vaishali.
2. Sudhir Kumar, son of Ravindra Rai, resident of Village-Terasia, P.O-
Ratnakar, P.S.-Ganga Bridge, District-Vaishali
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Anil Kumar, Advocate
For the Respondent/s : None
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
And
HONOURABLE MR. JUSTICE S. B. PD. SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. B. PD. SINGH)
Date : 02-07-2025
Heard learned counsel for the appellant. None
appears on behalf of respondent.
2. The present appeal has been filed under Section
19(1) of the Family Court Act, 1984 impugning the
judgment and decree dated 03.01.2023 passed by learned
Principal Judge, Family Court, Vaishali at Hajipur in
Matrimonial (Divorce) Case No. 64 of 2022, whereby the
matrimonial suit, preferred by the appellant, for a decree of
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divorce, on dissolution of marriage, has been dismissed.
3. The case of the appellant as per petition filed
before the Family Court is that the marriage of the appellant
was solemnized with respondent No. 1 on 18.06.2018 as per
the Hindu Rites and Custom and out of the wedlock one
male child was born. After marriage and birth of male-child,
the appellant went to the State of Madhya Pradesh for his
livelihood. The appellant alleged that in the absence of
appellant, his neighbour Sudhir Kumar (respondent No. 2)
used to visit at his house regularly and had developed illicit
physical relationship with his wife (respondent No. 1)
which was protested by his mother. It is alleged that on
04.12.2020
, Sudhir Kumar (respondent No. 2) came along
with some anti-social elements and took his wife and minor
children away with him and thereafter, she did not return to
her matrimonial house. The respondents are living together
in adultery. The appellant, therefore, prayed that the
marriage between the appellant and respondent No. 1 be
declared dissolved and a decree of divorce be passed in his
favour.
4. The respondent Nos. 1 and 2 were issued notices
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but they choose not to appear to contest their case. Hence,
the case was proceeded ex-parte.
5. During course of trial, altogether four witnesses
have been produced on behalf of the appellant which are
P.W.1- Sudhir Rai (appellant himself), P.W. 2-Subodh Rai
(brother of the appellant), P.W. 3- Suman Rai (brother-in-
law of the appellant) and P.W.4-Leelawati Devi (mother of
the appellant).
6. After conclusion of the trial, the learned Principal
Judge, Family Court has held that appellant has not proved
desertion and adultery as against the respondent No. 1 in the
absence of any independent and cogent material evidence
and accordingly, the Trial Court came to the conclusion that
the appellant was not entitled for decree of divorce on the
ground of adultery and desertion and the suit was
accordingly dismissed.
7. Thereafter, being aggrieved and dissatisfied with
the aforesaid judgment and decree passed by the learned
Principal Judge, Family Court in Matrimonial (Divorce)
Case No. 64 of 2022, the present appeal has been filed by
the appellant.
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8. Learned counsel appearing on behalf of the
appellant has submitted that the judgment and decree passed
by the learned Family Court is bad and appears to be
mechanically passed without application of judicious mind.
The witnesses who have appeared on behalf of the appellant
have stated that marriage of the appellant with the
respondent No. 1 was performed on 18.06.2018 and out of
the wedlock, a male-child was also born. The behaviour of
the respondent No. 1 towards her husband (appellant) and
other in-laws family members was cordial for two years but
thereafter, she established illicit relationship with Sudhir
Kumar (respondent No. 2) and when her mother-in-law
made objection, she left her matrimonial house with her
minor children and went along with respondent No. 2. At
present, she is staying with the respondent No. 2 in adultery
along with her minor-child.
9. It appears from the case record and the judgment
of the Court below that in spite of valid service of notice,
neither respondent No. 1 nor respondent No. 2 appeared to
respond on their behalf. Hence, the case was proceeded ex-
parte.
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10. This Court has also issued notice to the
respondents on 29.01.2025. The office note dated
25.03.2025 suggests that respondent No. 1 refused to accept
the notice. Thereafter, vide order dated 26.03.2025, Dasti
Summon was issued to the respondent. A supplementary
affidavit has been filed on behalf of the appellant which
suggests that Dasti Summon was refused to accept by the
family members of the respondents.
11. In view of the submissions made on behalf of
the appellant and the evidences brought on record, the main
points for determination in this appeal are as follows:-
(i) Whether the appellant is entitled to the
relief sought for in his petition/appeal.
(ii) Whether the impugned judgment of
Principal Judge, Family Court, Patna is just,
proper and sustainable/tenable in the eyes of
law.
12. The appellant has prayed in Matrimonial
(Divorce) Case No. 64 of 2022 for dissolution of marriage
on the ground of adultery. The adultery may be defined as
the act of a married person having sexual intercourse with a
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person of opposite gender other than the wife or husband of
the person. Personal laws all around the world condemn
adultery and it is considered as a ground for divorce or
separation. Under the present Indian personal laws, adultery
is laid down as one of the grounds for divorce or judicial
separation.
13. The essential ingredients in an offence of
adultery are that: (i) There should be an act of sexual
intercourse outside the marriage, and (ii) that such
intercourse should be voluntary.
14. The appellant has not brought on record any
proof to show that respondent No. 1 was having illicit
relationship with the respondent No. 2 nor he has proved
that they were living in adultery and only in order to make a
valid ground in the divorce petition, these allegations were
levelled against the respondent No. 1 without any
supporting material evidence.
15. In “Jagdish Singh v. Madhuri Devi“, (2008) 10
SCC 497, the Hon’ble Supreme Court while considering the
scope of interference by first appellate court, observed as
under:-
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7/11“24. It is no doubt true that the High
Court was exercising power as first appellate
court and hence it was open to the Court to
enter into not only questions of law but
questions of fact as well. It is settled law that
an appeal is a continuation of suit. An
appeal thus is a re-hearing of the main
matter and the appellate court can re-
appraise, re-appreciate and review the entire
evidence “oral as well as documentary” and
can come to its own conclusion.
25. At the same time, however, the
appellate court is expected, nay bound, to
bear in mind a finding recorded by the trial
court on oral evidence. It should not forget
that the trial court had an advantage and
opportunity of seeing the demeanour of
witnesses and, hence, the trial court’s
conclusions should not normally be
disturbed. No doubt, the appellate court
possesses the same powers as that of the
original court, but they have to be exercised
with proper care, caution and
circumspection. When a finding of fact has
been recorded by the trial court mainly on
appreciation of oral evidence, it should not
be lightly disturbed unless the approach of
the trial court in appraisal of evidence is
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erroneous, contrary to well-established
principles of law or unreasonable…”
16. After perusal of the materials available on
record and consideration of submissions made by learned
counsel for the appellant as well as materials available on
record, we find that all the prosecution witnesses are family
members of the appellant, hence, they are interested
witnesses. They allege that respondent No. 1 fled away
with respondent No. 2 but they had no knowledge
regarding the whereabouts of the respondents. No
independent witness has come forward in this case to
support the factum of illicit relationship of the respondent
No. 1 with respondent No. 2. The allegation of illicit
relationship of respondent No. 1 with respondent No. 2 was
only witnessed by mother of the appellant who was
examined as P.W. 4. She has deposed that on 04.12.2020,
she saw the respondent No. 1 and respondent No. 2 in
compromising position but she did not disclose this fact to
anyone nor any panchayati was called for. She also
deposed that her another third daughter-in-law also
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witnessed the illicit relationship of respondent No. 1 with
respondent No. 2 but she has not been examined as
appellant’s witness. P.W. 4 further deposed that respondent
No. 2 used to come to her house since one year before the
alleged abduction but she did not make any complaint
against him to anyone. Not any witness has come forward
having seen the alleged abduction of respondent No. 1 and
her minor child at the hands of respondent No. 2. P.W. 4,
instead of registering an F.I.R, has filed Complaint Case
No. 2269 of 2020 under Sections 323, 448, 148 I.P.C
against the respondent No. 2 and others in which
cognizance was taken and the case as against respondent
No. 2 for abduction of respondent No. 1 was not found
true. The extract of the order of learned Judicial Magistrate,
1st Class, Vaishali at Hajipur passed in Complaint Case No.
2269 of 2020 lodged by the mother of the appellant
regarding abduction of her daughter-in-law(respondent No.
1 herein) reads as under:-
“From perusal of the complaint
petition, S.A on oath of the complainant,
depositions of the enquiry witnesses and
documents filed on behalf of the complainant,
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out U/Sec. 323/448/148 of 1.P.C. against the
accused named in accused column of the
complaint petition Bipin Kumar, Ramesh
kumar, Guddu kumar, Sudhir kumar, Pramod
rai, Saraswati devi, Akash kumar. So far the
other allegation is concern it seems that
witnesses have not established the basic
ingredients of other alleged offence and
appears to be super addition in order to make
graver.”
17. The appellant has also not brought on record
any proof regarding illicit relationship of respondent No. 1
with respondent No. 2. The appellant has also not brought
on record any cogent and reliable evidence which could
show that respondent No. 1 and respondent No. 2 are living
in adultery. The appellant has also not filed petition under
Section 9 of the Hindu Marriage Act for restitution of
conjugal rights which would reflect that he was interested
to resume conjugal life with the respondent No. 1. The
appellant alleges that respondent No. 1 and respondent No.
2 are living in adultery but he has not proved this fact with
any cogent and reliable material evidence which clearly
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suggests that only in order to make a legal ground in the
divorce case, these baseless allegations have been levelled
by the appellant.
18. Hence, we find no merit in the present appeal
warranting any interference in the impugned judgment. The
Family Court has rightly dismissed the matrimonial case of
the appellant seeking divorce.
19. The present appeal is dismissed accordingly,
affirming the impugned judgment.
( S. B. Pd. Singh, J)
(P. B. Bajanthri, J)
Shageer/-
AFR/NAFR NAFR CAV DATE 18/06/2025 Uploading Date 02/07/2025 Transmission Date N/A