Jharkhand High Court
Dhananjay Kumar Pandey vs Vidyawati Devi on 23 July, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
2026:JHHC:21869-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No.121 of 2019
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Dhananjay Kumar Pandey, aged about 67 years, son of Late Chitranjan
Kumar Pandey, resident of:159 Sindhu Road, 10 no. Basti, PO & PS-
Sidhgora, Jamshedpur, District: East Singhbhum.
.......... Petitioner/Appellant
Versus
Vidyawati Devi, Daughter of: Sri Sidheswar Pandey, resident of Village-
Danwar, PO & PS-Danwar, District-Rohtas (Bihar).
.... ... Respondent/ Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Dhananjay Kumar Pathak, Advocate
For the Respondent : Mr. Samir Verma, Advocate
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C.A.V on 03.07.2026 Pronounced on 23/07/2026
Per Sujit Narayan Prasad, J.
1. The instant appeal under section 19(1) of the Family Courts Act,
1984 is directed against the judgment dated 04.01.2019 and the decree
signed on 15.01.2019 passed in Original Suit No.136 of 2002 by the
learned Principal Judge, Family Court, East Singhbhum, Jamshedpur (in
short, Family Judge) whereby and whereunder the petition filed under
section 13(1) (i) (i-a) of the Hindu Marriage Act, 1955 by the appellant-
husband against the respondent-wife has been dismissed.
2. It needs to refer herein that earlier the appellant-husband had
filed a suit for divorce on the ground of cruelty against the respondent-
wife which was allowed by the learned Family Judge vide its judgment
dated 11.07.2011 and decree signed and sealed on 15.07.2011.
3. Being aggrieved, the respondent-wife approached before this
Court by preferring a First Appeal being First Appeal No.101/2011.
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4. A co-ordinate Bench of this Court vide its judgment dated
22.11.2016 passed in First Appeal No.101/2011 has quashed and set aside
the judgment and decree of the learned Family Court, Jamshedpur and
remitted the matter to the concerned learned Family Court with a direction
to settle the issues, examine the witnesses and decide the matter.
5. While setting aside the judgment and decree for divorce, a co-
ordinate Bench of this Court has also discarded the issues settled by this
Court as also the entire evidence adduced by the parties and directed the
learned Family Judge, Jamshedpur to frame issues, strictly in accordance
with the pleadings of the parties and allowing the parties to adduce
evidence afresh, strictly according to the pleadings of the parties. It was
also directed that pleadings of the parties shall remain the same.
6. Being aggrieved and having not satisfied, the petitioner-husband
had filed a review petition being Civil Review No.17/2017 on the ground
that there was an amendment petition filed before the learned Family
Court, Jamshedpur which was allowed and the ground of adultery was
added. But Civil Review No.17/2017 was also dismissed by this Court
observing that no valid reason for reviewing the judgment dated
22.11.2016 was found.
7. Thereafter in light of order dated 22.11.2016 passed by this
Court, the matter was remitted back to the learned Family Court.
8. The learned Family Judge after taking into consideration the
pleadings of the parties has formulated the issues vide order dated
01.10.2018 and after considering the evidence adduced on behalf of the
parties and after scrutinizing the materials on record has dismissed the suit
for dissolution of marriage vide its judgment dated 04.01.2019 and decree
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dated 15.01.2019 passed in Original Suit No.136 of 2002 which are under
challenge in the instant appeal.
9. 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 appellant-husband and respondent-wife got married on
03.07.1987 according to Hindu customs and rites and the
respondent joined her husband and in laws in her marital house
immediately after said marriage at Jamshedpur.
(ii) At Jamshedpur respondent’s father-in-law had been in service and
subsequently her husband got employment in Jamshedpur Notified
Area Committee.
(iii) The behavior of the respondent wife was all along cruel towards the
appellant and her father-in-law and mother-in-law, which resulted
in separation of the appellant from his parents in 1990, but even
after his separation the appellant noticed that there was no change
in the behaviour of the respondent, even towards the appellant itself.
(iv) The respondent-wife used to move freely from Jamshedpur to
Daltonganj (place of posting of her father) or her father’s native
village Danwar in Rohtas District against the will of the appellant-
husband.
(v) Further, when the appellant raised objection, she used to misbehave
with him in most ugly manner and made life of the petitioner
miserable.
(vi) The respondent-wife remained non-co-operative in begetting issue
through the appellant. She refused to have issue through the
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appellant and expressed her desire to the appellant that she will get
issue through others or have test tube baby.
(vii) Further, during the period of her stay in the house of the appellant,
the respondent in day-to-day affairs, used to quarrel with the
appellant in most nasty manner, sometimes she did not hesitate in
causing violence and sometimes she used to take bottle containing
kerosene oil and matches with her saying that she would commit
suicide as the appellant was raising objection to cruel behavior of
the respondent.
(viii) It has been stated that whenever, the respondent had been in her
parent’s house, she, her brothers namely Yatindra Narayan Pandey
and Upendra Narayan Pandey, her matrimonial brothers Dadan
Tiwary and Satya Narayan Tiwary used to threaten the appellant
and his parent’s that her brothers have close link with terrorists of
Palamu District, and with the help of the said terrorists, they would
get the appellant and his parents wiped out from this world.
(ix) Further, the respondent led gang comprising her two brothers,
namely, Yatindra Narayan Pandey and Upendra Narayan Pandey
and her two maternal brothers namely Dadan Tiwary and Satya
Narayan Tiwary, of village Gorayi, Dist. Rohtas with a view to
commit dacoity in parental house of the appellant in village
Dewarin, District Rohtas, but timely intervention of villagers foiled
the mission of the respondent and her gang men.
(x) The respondent, through different persons, managed to
communicate message to the appellant that she has persons of
criminal history for doing away life of the appellant and his parents.
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(xi) This exceeds the limit of cruelties, being caused to the petitioner,
by the respondent.
(xii) Thus, the respondent-defendant treated the plaintiff-petitioner with
cruelty which leading to filing of the Original Suit No.136 of 2002.
10. On the aforesaid ground of cruelty and on the basis of allegation
of adultery, the appellant-husband has prayed for a decree of dissolution of
the marriage between him and the respondent-wife.
11. It needs to mention herein that in Original Suit No. 136 of 2002,
the respondent-wife has appeared and filed a written statement denying all
the allegations levelled against her by the appellant-husband.
12. In the written statement, the respondent-wife admitted about her
marriage with the petitioner/appellant but has denied the other allegations
contained in the plaint. It is averred that the suit is not maintainable. She
has stated that, at the time of marriage, her father had provided cash
Rs.70,000/- and other household articles to the petitioner, on the demand of
the petitioner and his parents and sisters. The said articles were taken by the
petitioner and his family members to Jamshedpur from Daltonganj and are
lying in the house of the petitioner.
13. It is stated that after the marriage, the petitioner and his parents,
further demanded one colour T.V., as well as, other articles and cash
Rs. 12,000/-, after one month of the marriage. Two letters dated 10.08.97
and 14.08.97 were sent by the father of the petitioner to the father of the
respondent, as well as, grand-father of the respondent, stating therein that,
until the said articles and cash be provided to the petitioner and his family
members, no Vidaaie ceremony shall be performed. Father of the
respondent provided all the above articles except T.V. and Box Bed and the
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Vidaaie ceremony was performed, whereupon, the respondent came to her
matrimonial home, at Jamshedpur.
14. Furthe,r since the T.V. Set and Box Bed were not provided to the
petitioner and his parents, they began to torture her in various ways. She
was not allowed to enter into the kitchen. She was completely kept away
from daily affairs of the house and was being treated as maid-servant, at the
instance of her mother-in-law. Respondent was confined within the
premises and she was not allowed to go out of the house and, therefore,
there is no question of her moving freely from Jamshedpur to Daltonganj.
15. It is her further case that due to ill treatment made by the
petitioner and his parents, respondent fell seriously ill on 06.09.88, at
Jamshedpur, but the petitioner and his family members, did not take care of
her treatment and they informed the father of the respondent regarding her
illness, who sent his son to bring the respondent, to his native place, where
he got her treated by the doctor. After treatment, the respondent was again
sent back to her in-law’s house, but she was again tortured by the petitioner
and his parents.
16. The respondent has denied that she was non-cooperative towards
having physical relationship with the petitioner and has stated that she was
always willing to have a child, but the petitioner used to avoid cohabiting
with her, for reasons best known to him.
17. Further that, when there was no issue, for about more than two
years, the petitioner, on the advice of the respondent, went for treatment to
Dr. Chawla, at Jamshedpur. Both of them were treated by the doctors and
the doctor found the respondent fit for giving birth to a child, but the
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petitioner was not found fit for getting any issue, through the respondent,
for which the petitioner was medically treated by the doctor.
18. Further that, when no child was born to the respondent, the
mother of the petitioner used to abuse the respondent as “Baanjh” and the
parents of the petitioner were negotiating for second marriage of the
petitioner, with another lady and when the respondent opposed, she was
mercilessly assaulted by the petitioner, at the instance of his parents. The
petitioner and his parents, after assaulting her, used to drive her out of their
house, off and on, but at the request of the father and the brothers of the
respondent, she was being allowed to stay in the house of the petitioner.
However, in the year 2001, respondent became pregnant, but after two
months, there was abortion of the child, due to ill treatment made by the
petitioner and his parents.
19. It is averred that the father-in-law of the respondent used to kick
on her belly, at the time of her pregnancy, as a result of which, abortion
took place, but no proper treatment was given to her. After abortion, the
petitioner and his family members began to torture the respondent, which
became intolerable. Thereafter, the petitioner called her brother and she was
sent to her father’s house and since then, she is living at her parents’ house,
at her native place.
20. It is further averred that the petitioner and his family members,
never tried to take her back to their house, though, she is all along ready
and willing to live with her husband, but despite repeated requests made by
the father and brothers of the respondent, the petitioner is not ready and
willing to take her back and he is negotiating for second marriage.
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21. The respondent has denied that, she or her brothers ever
threatened the petitioner and that, her brothers are associated with the
terrorist of Palamau. She has further stated that, the petitioner has no
document to show that, he informed any authority regarding the alleged
wrongful acts of the respondent, as well as, her father and brothers. She has
denied that, she has any intention to grab any property of the petitioner,
rather all her belongings are lying in the house of the petitioner.
22. It is the further case of the respondent that, due to ill treatment
made upon her, she has instituted a case against the petitioner and his family
members under section 498A, 307 of the I.P.C., being Karakat P.S. Case
No. 137/02, which is pending in the court of S.D.J.M, Bikramganj, at
Sasaram.
23. The respondent has denied that, petitioner has any reasonable
apprehension from her or her parents. She has reiterated that, she has always
been ready and willing to live with her husband, at her matrimonial home.
She has further stated that, she has never left Jamshedpur, on her own,
rather she was being driven out, by the petitioner and his family members,
after assaulting her. Submitting thus, it has been prayed that instant suit may
be dismissed.
24. Learned Family Judge, after institution of the said case, taking
into consideration of the pleadings of the petitioner/appellant and the
respondent has formulated the issues and has decided the lis by refusing to
grant divorce to the plaintiff/appellant.
25. The aforesaid judgment by which divorce has not been granted
is under challenge by filing the instant appeal.
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Submission of behalf of the appellant-husband:
26. Mr. Dhananjay Kumar Pathak, 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) It has been contended that the element of cruelty has been
found to be there as soon after the marriage the respondent-wife
treated the petitioner-husband with cruelty and used to quarrel
with him in most nasty manner and always threatened to commit
suicide by pouring kerosine oil upon herself which caused mental
agony to him, but without appreciating the same properly, the
learned Family Judge has come to the finding by holding that no
element of cruelty 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 also she moved freely here and
there and even denied to establish physical relationship with him
as would be evident from the evidence adduced on behalf of the
appellant-husband, but the same has not been taken into
consideration by the learned Family Judge.
(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
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2026:JHHC:21869-DBappellant 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 and leading an adulterous life by leaving
her matrimonial house.
27. The learned counsel, based upon the aforesaid grounds, has
submitted that the impugned judgment and decree, therefore, needs
interference on the ground of perversity.
Submission of behalf of the respondent-wife:
28. On the contrary, 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 and has passed the
order impugned as such same may not be interfered with.
(ii) The appellant has sought divorce on the ground that the
behaviour of the respondent-wife is cruel and she is leading
an adulterous life but the learned Family Court, after taking
into consideration the oral and documentary evidence, has
held that the entire allegations levelled in the plaint for
divorce suit are absolutely illegal, uncalled for and has
rightly dismissed the suit.
(iii) It has been contended that the learned Family Judge has
observed that witness of the petitioner, Umesh Prasad
P.W.-2, upon his cross-examination has admitted at para-
28, that petitioner has solemnized second marriage and out
of the said wedlock one son was begotten. Thus, it appears
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that it is the petitioner himself who has solemnized second
marriage and leading an adulterous life and the learned
Family Judge has rightly dismissed his petition for divorce.
(iv) It has been contended that the fact about having a
relationship with another woman while the first wife is
alive is sufficient evident to prove the element of cruelty,
which is being on the part of the appellant-husband towards
the wife which proves that the appellant-husband is leading
an adulterous life and hence, the second marriage of the
petitioner-husband proves that he has acted cruelty upon
the respondent-wife.
(v) It has further been contended that the petitioner-husband
has not made a party the person with whom the alleged
illicit relationship of the respondent-wife exists and, as
such, the suit for divorce is not maintainable on the ground
of adultery and, thus, the learned Family Judge has rightly
dismissed the suit.
29. Learned counsel, based upon the aforesaid grounds, has
submitted that if on that pretext, the factum of cruelty and adultery has not
been found to be established, hence, the impugned judgment cannot be said
to suffer from an error.
Analysis:
30. 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.
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31. The learned Family Judge has formulated altogether six issues,
for ready reference the same are being quoted hereinbelow:
(I) Is the suit as framed maintainable?
(II) Whether the applicant has valid cause of action?
(III) Whether the respondent is guilty of committing acts of
cruelty against the applicant?
(IV) Whether the respondent has, after the solemnization of
marriage, had voluntary sexual intercourse with any person,
other than her husband, the petitioner herein?
(V) Whether the applicant is entitled to a decree of divorce on
the grounds of cruelty and adultery?
(VI) To what other relief or reliefs the applicant is entitled to?
32. The learned Family Judge has considered the evidence adduced
on behalf of the parties for deciding the issues involved in Original Suit
No.136 of 2002 as they are interconnected.
33. 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 and adultery has been
shown by the petitioner-husband.
34. During the trial, two witnesses have been examined on behalf of
the appellant-husband, upon remand of the suit. They are P.W.1
Dhananjay Kumar Pandey, petitioner himself and P.W.2-Umesh Prasad,
is the well-wisher of the petitioner. Signatures of the Respondent on her
previous examination-in-chief and cross-examination have been marked
as Exts. 1, 1/1 to 1/14.
35. On behalf of the respondent, two witnesses have been examined,
upon remand of the suit. They are R.W.1 Vidyawati Devi @ Vidyawati
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Pandey, respondent herself and R.W. 2 Yatindra Narayan Pandey,
brother of the respondent.
36. In his examination on oath as PW1, the appellant-husband has
deposed that his marriage was solemnized with the respondent on
03.07.1987 and after the marriage the respondent came to his house at
Jamshedpur and they started living as husband and wife. He has deposed
that soon after the marriage the respondent treated him and his parents
with cruelty due to which his parents were compelled to live separately
from them. He has deposed that the respondent never acted as his wife
and never cared him and when he objected, she has started quarreling
with him and always threatened to implicate him and his family members
in false cases.
37. He has deposed that the respondent told him that she would give
birth to a child after establishing physical relation with another person
and not from the petitioner. He has deposed that the respondent used to
move here and there without his consent from Jamshedpur to Daltonganj
for illicit relationship and since June, 2002 she spent night with other
persons at different area of Jamshedpur. The petitioner-husband has
deposed that the respondent was staying with one Akhilesh Tripathi for
about six months and she never wanted to leading a conjugal life with the
petitioner which amounts to cruelty. He has deposed that the respondent
was treated by several doctors for birth of a child who advised her to take
medicine and consummate the marriage with the petitioner but she
refused to do so.
38. He has deposed that the respondent’s brother and father
instigated her to misbehave with him and they also threatened him for
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dire consequences if he objects the respondent. He has further deposed
that the relatives of the respondent had tried to commit dacoity at his
native place but the same could not be succeeded due to villagers. He has
further deposed that the respondent has lodged a false criminal case
against him, his parents and sister under section 498A IPC due to which
he had suffered physical and mental agony. He has deposed that his
relatives and well-wishers tried their level best to patch up the differences
but all went in vain due to adamant and cruel behaviour of the respondent.
The respondent wants to lead an adulterous life with other persons and
she has established physical relation with Akhilesh Tripathi.
39. In para-4 of his cross examination, he has stated that he had never
made any complaint to anywhere about the cruel behaviour of the
respondent. At para-7 the petitioner has admitted that he never caught her
wife red handed while establishing physical relationship with other
person and he never lodged any case against the respondent or Akhilesh
Tripathi in this regard. At para-11 he has admitted that he has not
produced the prescription or certificate of any doctor in the Court. At
para-13 of his cross-examination, the petitioner has admitted that the
respondent had lodged the case under section 498A IPC after he
instituted the suit for divorce. At para-14 he has admitted that he does not
want to keep the respondent as his wife. At para-15 he has deposed that
he did not file any case with respect to restitution of conjugal rights. At
para-17 he has admitted that initially he had filed this case because his
wife had made complaint in his department and despite his persuasion,
she did not obey him. At para-24 he has stated that neither he had
produced any medical document nor had filed any case.
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40. PW2 Umesh Prasad is a witness who knows both the parties. He
has deposed that the marriage between the petitioner and the respondent
was solemnized in the year 1987. Soon after the marriage, the respondent
treated the petitioner and his parents with cruelty due to which parents of
the petitioner started living separately in a quarter since the year 1990.
He has narrated the entire facts as stated by the petitioner in his evidence.
At para-14 of his examination-in-chief he has stated that he heard from
Dhananjay Pandey (the petitioner) that the respondent had refused to
establish physical relationship with the petitioner. He has corroborated
the factum of illicit relationship of the respondent with other persons.
41. During cross-examination, at para-1 he has denied the suggestion
that he got information from the petitioner and admitted that he knows
these things personally. At para-2 he has admitted that he has no talking
term with the respondent since 1990. At para-3 he has admitted that he
had used to go to the petitioner’s house on routine manner but he had
never seen that the respondent had abused the petitioner. At para-4 he has
admitted that as on date he is having no relation with either of the
petitioner or the respondent. At para-6 he has admitted that he had never
seen that the respondent has spent night at Sonari, Bishtupur etc. At para-
7 he has admitted that he got information from the petitioner that the
respondent did not want to live with the petitioner. At para-19 he had
stated that he had seen the respondent with a teacher of Rajasthan School
whose name is Tripathi or Tiwari. At para-20 he has admitted that he had
never seen the respondent with any other person except this man. At para-
21 he has admitted that he had never seen the respondent having physical
relationship with any other person. At para-24 he has admitted that he
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was never informed by the petitioner about illicit relationship of the
respondent. At para-28 he has admitted that the petitioner has solemnized
second marriage and he has one son out of the said wedlock. At para-30
he has admitted that the petitioner had solemnized the marriage before
5-7 years ago.
42. On the other hand, the defendant-wife (Vidyawati Pandey) has
deposed herself as RW1. She has deposed that she was married with the
defendant on 03.07.1987 and at the time of marriage cash Rs.70,000/- in
addition to Furniture, Clothes, Gold and Silver ornaments, Household
articles were presented to the petitioner. The respondent has deposed that
after one month of marriage, on 10.08.1987 and 14.08.1987 her in-laws’
had sent letters addressed to her father and grand-father for demand of
dowry which she had produced in the Court.
43. The respondent has deposed that all the demands of her in-laws
were fulfilled by her parents except one T.V and box-bed due to which
she was tortured by her in-laws. She has further deposed that the
petitioner and his parents started torturing her due to non-fulfillment of
demand of additional dowry and even stopped to provide her food. The
respondent has further deposed that she had tolerated the cruel act of her
in-laws with a hope that the behaviour of the in laws and his husband
would be changed in future but in vain. The respondent has deposed that
she always obeyed the petitioner but on the instigation of her in-law’s,
the petitioner never cared her and even not ready to beget a child from
her.
44. She has further deposed that the father and mother of the
petitioner wanted to remarry the petitioner with another girl to whom
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they had liked earlier and always treated the respondent with cruelty. She
has deposed at para-10 that after being harassed and tortured at the hands
of the petitioner and his parents, she made a complaint to the office of
the petitioner where he worked thereafter the petitioner had filed a suit
for divorce. At para-11 she has deposed that the petitioner has solemnized
second marriage with one woman, namely, Guddi, and out of the said
wedlock he has a son. At para-12 she has stated that due to cruelty meted
out by her in-laws her pregnancy was aborted and thereafter her in-laws
had assaulted her brutally and driven her out of the house due to non-
fulfillment of demand of dowry. At para-13 the respondent has deposed
that when the petitioner and his parents neglected her, she had lodged a
case against the petitioner and his family members under the Dowry
Prohibition Act and at that time she was residing at her maike. At para-
14 the respondent has stated that she has not solemnized second marriage
as she still loves with the petitioner.
45. At para-17 the respondent has deposed that Tripathi Sir is her
Kulguru and he is like her father. At para-20 she has deposed that the
petitioner has amended the plaint of the suit by inserting the clause of
adultery after five years which has hurt her honor and dignity and, as
such, the suit for divorce is liable to be dismissed.
46. During cross-examination, RW1 has stated at para-10 that her
father-in-law wrote a letter addressing to her father for demand of T.V
and bed box so that they would keep her properly in her matrimonial
home. At para-26 she has admitted that Akhilesh Kumar Tripathi is
Kulguru of her father but he was a teacher or not she does not know. At
para-27 she has stated that she does not know where Akhilesh Kumar
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Tiwari was living. At para-33 she has admitted that she had lodged a case
against her husband at Bikramganj Court in 2002 which is still pending.
At para-39 and 40 the respondent has denied the suggestion that it was
wrong to say that she had moved freely here and there at Jamshedpur on
her own wish without permission of her in-laws and stayed at night for
days or months at the house of another person.
47. R.W.2 Yatinandra Narayan Pandey is the brother of the
respondent. He has corroborated the entire facts as narrated by the
respondent in her examination-in-chief and cross-examination. This
witness has stated that at the time of marriage as per demand made by the
petitioner and his parents cash Rs.70,000/- in addition to Furniture,
Clothes, Gold and Silver ornaments, Household articles were given to the
petitioner. At para-5, RW2 has deposed that on 10.08.1987 and
14.08.1987 the petitioner and his parents wrote letters to his father and
grand-father for demand of dowry mentioning therein that if the demand
would not be fulfilled then her daughter will be neglected. Thereafter, the
demand was fulfilled but a T.V and one bed box were not given due to
which her sister was subjected to cruelty and mentally tortured at the
hands of her husband and in-laws. At para-9 this witness has stated that
her sister (the respondent) was driven out of the matrimonial home after
brutal assault by her in-laws.
48. At para-11, he has deposed that when the petitioner and her
parents tortured and neglected the respondent, then after being compelled
she lodged a criminal case under the provision of Dowry Prohibition Act
against them. At para-14 he has stated that the respondent still wants to
live with the petitioner but the petitioner.
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49. During cross-examination, this witness has denied the suggestion
at para-14 that the petitioner and his family members never treated the
respondent with cruelty. At para-27 he has stated that after performing
Gauna ceremony in 1988 her sister (the respondent) went to her
matrimonial home where she was treated with cruelty. At para-48 RW2
has stated that Akhilesh Tripathi is his Kulguru and he is a blind person
with both eyes. At para-53 he has stated that Akhilesh Tripathi is now
aged about 70 years. At para-65 she has denied the suggestion that her
sister (the respondent) had been seen alone in other areas of this city.
50. In the backdrop of the aforesaid factual matrix and the
depositions of the witnesses, this Court now proceeds to re-advert to the
factual substratum of the case as well as to the rival contentions advanced
by the learned counsel appearing for the respective parties.
51. It stands admitted, on the basis of the evidences adduced by the
appellant-husband, that the suit was instituted on the plea of cruelty and
adultery. This fact is further borne out from the issues as duly framed by
the learned Family Court.
52. The appellant-husband has throughout the proceedings,
consistently alleged acts of cruelty and adultery on the part of his wife.
In order to substantiate these allegations, he has laid evidences which
have already been adverted to hereinabove.
53. 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.
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54. 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.
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:
20
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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.”
55. Thus, “perversity” refers to a finding or decision so unreasonable
or irrational that no reasonable person acting judicially could have reached
it. It signifies a gross and unreasonable assessment of evidence or law by a
court.
56. Further Perversity is a high threshold for intervention,
distinguishing it from a mere error of fact or law. The “safest approach on
perversity is the classic approach on the reasonable man’s inference on the
facts but inadequacy of evidence or a different reading of evidence is not
perversity, reference in this regard be made to the judgment rendered by the
Hon’ble Apex Court in the case of “Damodar Lal v. Sohan Devi“, (2016)
14 SCC 197.
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Issue of Cruelty:
57. Herein, submission has been made on behalf of the appellant-
husband that the respondent-wife committed cruelty against him.
58. 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.
59. 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.
60. 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.”
61. 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
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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.”
62. 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.
63. 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”.
64. 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.
65. 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
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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.
66. “Cruelty” has an inseparable nexus with human conduct and is
always dependent on social strata or milieu to which parties belong, their
ways of life, relationship, temperaments and emotions that are conditioned
by their social status, reference be made to the judgment rendered by the
Hon’ble Apex Court in the case “Vishwanath Agrawal v. Sarla
Vishwanath Agrawal“, (2012) 7 SCC 288.
67. The Hon’ble Apex Court in the case of “K. Srinivas Rao v. D.A.
Deepa“, (2013) 5 SCC 226 has observed that cruelty is evident where one
spouse so treats other and manifests such feelings in other, as to cause
reasonable apprehension in mind of other that it would be harmful or
injurious to reside with other spouse and cruelty may be physical or mental.
It has further been observed that staying together under the same roof is not
a precondition for mental cruelty. Spouse can cause mental cruelty by his
or her conduct even while he or she is not staying under the same roof.
68. In matrimonial relationship cruelty mean absence of mutual
respect and understanding between spouses which embitters relationship.
Sometimes it may take form of violence, or at times may just be an attitude
or approach. Silence in some situations may also amount to cruelty
reference be made to the case of “Ravi Kumar v. Julmidevi”, (2010) 4 SCC
476.
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69. For considering dissolution of marriage at instance of a spouse
who alleges mental cruelty, result of such mental cruelty must be such that
it is not possible to continue with matrimonial relationship reference may
be taken from the judgment rendered by the Hon’ble Apex Court in the case
of “Joydeep Majumdar v. Bharti Jaiswal Majumdar“, (supra).
70. Further, the word ‘cruelty’ is used 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. The cruelty may be mental or physical, intentional or
unintentional. There may be cases where the conduct complained of itself
is bad enough and per se unlawful or illegal. Then the impact or the
injurious effect on the other spouse need not be enquired into or considered.
In such cases, the cruelty will be established if the conduct itself is proved
or admitted, reference in this regard be made to the judgment rendered by
the Hon’ble Apex Court in the case of Vinita “Saxena v. Pankaj
Pandit“, (2006) 3 SCC 778.
71. Further, in the case of “Manish Tyagi v. Deepak
Kumar“, (2010) 4 SCC 339 the Hon’ble Apex Court has categorically
observed that to constitute ‘cruelty’, it is enough that conduct of one of
parties is so abnormal and below accepted norm that other spouse could not
reasonable be expected to put up with it. Conduct is no longer required to
be so atrociously abominable which would cause reasonable apprehension
that it would be harmful of injurious to continue cohabitation with another
spouse. Hence, it is not necessary to establish physical violence. Continued
ill-treatment, cessation of marital intercourse, studied neglect, indifference
may lead to inference of cruelty.
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72. Thus, the word “cruelty” under Section 13(1)(i-a) of the Act has
got no static connotation, and therefore, gives a very wide discretion to the
Court to apply it liberally and contextually. What is cruelty in one case may
not be the same for another and has to be applied from person to person
while taking note of the attending circumstances. Harm or injury to health,
reputation, the working-career or the like, would be important
considerations in determining whether the conduct of the defending spouse
amounts to cruelty. It has to be shown that the defending spouse has treated
him with cruelty to cause reasonable apprehension in his/her mind that it
will be harmful or injurious to live with the contesting spouse.
73. Now adverting to the factual aspect of the instant case, it appears
that the petitioner-husband has alleged that the respondent-wife has treated
him and his family members with cruelty.
74. It is the case of the petitioner that, since respondent’s entry into
the matrimonial home, the respondent’s conduct was persistently cruel
towards the petitioner/appellant as well as her parents-in-law. This
ultimately led to the petitioner’s separation from his parents in the year
1990. Notwithstanding such separation, the respondent’s behaviour
towards the petitioner remained unchanged. The petitioner has further
alleged that the respondent was non-cooperative in establishing physical
relations, which, according to him, amounts to cruelty. It is his case that the
respondent habitually engaged in quarrels with him in a most intemperate
manner, even in respect of day-to-day affairs, and at times resorted to acts
of violence against him. On certain occasions, she is said to have threatened
to commit suicide. The petitioner has also alleged that the respondent, in
concert with her brothers and cousins, threatened him with dire
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consequences, claiming connections with terrorists of Palamau and other
criminal elements. It is further alleged that the respondent’s brothers and
cousins attempted to commit dacoity at the petitioner’s parental house in
Rohtas District.
75. On the other hand, the respondent-wife, in her evidence, has
deposed that it was the petitioner-husband and his parents who subjected
her to cruelty, neglect, and even deprivation of food owing to the
non-fulfilment of dowry demands. She has further stated that she lodged a
complaint with the office where the petitioner-husband was employed at
the relevant time, and that, as a consequence thereof, the petitioner
instituted the present suit for divorce. The respondent-wife has also deposed
that when the petitioner and his family members refused to keep her in the
matrimonial home on account of the non-fulfilment of additional dowry
demands, she was compelled to initiate criminal proceedings under Section
498A of the Indian Penal Code against them.
76. From the aforesaid, it is apparent that the petitioner/appellant
case rests upon allegations of persistent cruelty, refusal of conjugal
relations, quarrelsome behaviour, threats of suicide and alleged criminal
associations of the respondent’s relatives.
77. Conversely, the respondent-wife has categorically deposed that
it was the petitioner-husband and his parents who subjected her to cruelty,
neglect, and deprivation of food owing to non-fulfilment of dowry
demands. She has further stated that she was compelled to lodge
complaints, including criminal proceedings under Section 498A IPC, when
the petitioner and his family members refused to keep her in the
matrimonial home for want of additional dowry.
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78. From the material available on record and taking into
consideration the deposition of witnesses in entirety, it is apparent that
allegations levelled by the petitioner/appellant are grave in nature, however,
they remain unsubstantiated by the cogent evidence, as such mere
assertions, without corroboration, cannot form the basis of a decree of
divorce.
79. The respondent’s testimony regarding cruelty, neglect, and
deprivation of food due to dowry demands is consistent and supported by
her subsequent legal action under Section 498A IPC. The initiation of such
proceedings lends credence to her version and demonstrates that she was
compelled to seek protection under law.
80. Further, the petitioner’s allegations appear retaliatory in nature,
particularly in light of the respondent’s complaint to his office and her
initiation of criminal proceedings. The balance of probabilities favours the
respondent’s version that she was subjected to cruelty and dowry
harassment.
81. The aforesaid fact has also been taken note by the learned Family
Court which would be evident from para-13, 14 and 15 of the impugned
judgment wherein the learned Family Court has observed which reads as
under:
“13. Now I move on to decide Issue No. III ie. whether respondent
is guilty of committing acts of cruelty against the applicant. It is
the case of the petitioner that, after coming to her matrimonial
home, respondent’s behaviour was all along cruel towards the
petitioner and her parents-in-laws, which ultimately resulted in
separation of the petitioner from his parents in 1990, but despite
that, there was no change in the behaviour of the respondent, even
towards the petitioner. The petitioner has alleged that,
respondent had been non-cooperative in having physical
relationship with the petitioner, which according to the
28
2026:JHHC:21869-DBpetitioner, tantamount to cruelty. It is his further case that, the
respondent used to quarrel with him in most in nasty manner,
even, day-to-day affairs. At times times, she did not even hesitate
in causing violence upon the petitioner. At times, she used to
threaten to commit suicide. It is further case of the petitioner that,
the respondent, along with her brothers and cousins, used to
threaten him of dire consequences, as they were having links with
terrorists of Palamau and other criminal persons. He has also
alleged that, the brother and cousins of the respondent, had
attempted to commit dacoity in the parental house of the
petitioner, in Rohtas District. He has also alleged that,
respondent is a lady of easy virtue and leads adulterous life with
other persons, including one Akhilesh Tripathy, which is also
cruelty upon the petitioner.
To the contrary, the case of the respondent is categoric denial
of the allegations of the petitioner. It is the case of the respondent
that, the petitioner and his family members, used to harass her for
demand of additional dowry and she was mercilessly beaten by
them. It is her further case that, she was treated as maid-servant
and several times was ousted from her matrimonial home, after
being assaulted. It is her further case that, when she had no child
born from the petitioner, then her mother-in-law used to tell her
“Banjh” and the parents of the petitioner were negotiating for
second marriage of the petitioner with another lady and when the
respondent opposed, she was mercilessly assaulted. It is her case
that, when she was finally ousted from her matrimonial home, she
filed a case under section 498A, 307 of the I.P.C., being Karakat
P.S.Case No. 137/02, which is still pending in the Court of
S.D.J.M, Bikramganj, at Sasaram.
14. From the evidence on the record, it appears that, the
petitioner, upon his cross-examination as P.W.1, has admitted at
para 4 that, he had not complained anywhere regarding cruel
behaviour of his wife. At para 6 he has admitted that, though his
wife used to neglect him with regards establishing physical
relationship, but he has not lodged any case in this regard. At
para 7 of his cross-examination, he has admitted that, he has not
caught his wife establishing physical relationship red-handed,
and that, though he has seen the respondent residing in the house
of Akhilesh Tirpathy till 06 March, but he has not lodged any case
in this regard, against his wife or Akhilesh Tripathy. At para 1229
2026:JHHC:21869-DBof his cross-examination, he has admitted that, he has not lodged
any case in any court or in police station, regarding the threats
given to him, by the respondent and her brothers and cousins. At
para 17 he has admitted that, initially he had filed this case
because, his wife had complained against him in his department,
despite his persuasion. P.W.2 has admitted upon his cross-
examination at para 3 that, he has never seen the respondent
abusing the petitioner. At para 6 of his cross-examination, P.W.2
has admitted that, he has not seen respondent spending nights at
Bistupur, Sonari and other places.
15. From the above discussions, it is clear that, though the
petitioner has alleged regarding threatening given by the
respondent and brothers and cousins, but he has not filed any
case in this regard, nor he has filed any case for the alleged
attempted dacoity by the brothers and cousins of the respondent,
in the native village of the petitioner.
While discussing Issue No. IV i.e. whether respondent has,
after solemnization of marriage, had voluntary sexual intercourse
with any person other than her husband, this court has found the
allegation of the petitioner in this regard, not proved beyond all
reasonable doubts. As per the settled law, making
unsubstantiated allegation of extra marital relationship against
the other spouse is cruelty, on the said spouse, alleged to having
extra marital relationship and the said cruelty is sufficient for the
purpose of dissolution of the marriage between the parties. In a
judgment reported in (2013) 5 SCC 226 K. Srinivas Rao Vs. D.A.
Deepa, the Hon’ble Supreme Court has observed at para 14 that,
Thus, to instances illustrative of mental cruelty, noted in Samar
Ghosh Vs. Jaya Ghosh, reported in (2007) 4 SCC 511, we could
add a few more. Making unfounded, indecent, defamatory
allegations against the spouse or his/her relatives, in the
pleadings, filing of complaints or issuing notices or news items,
which may have adverse impact on the business prospect or the
job of the spouse would, in the facts of a case, amount to mental
cruelty to the other spouse”.
The Hon’ble Jharkhand High Court in a judgment reported
in 2018 Supreme (Jhk) 1996: Raju Vishwakarma Vs. Seema Devi,
has also reiterated this settled Principal of law that, unfounded
allegations of illicit relationship, amounts to causing mental
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cruelty to the other spouse, sufficient for the purpose of
dissolution of the marriage between the parties,
As such, in my view, the petitioner himself is guilty of
infliction of cruelty upon the respondent. I further find that, even
the witness of the petitioner, Umesh Prasad, P.W.2, upon his
cross-examination has admitted at para 28 that, it is true that, the
petitioner has performed second marriage and he has a son out
of the said marriage. At para 30, P.W.2 has admitted that, the
applicant has performed second marriage 5-7 years ago. I further
find that, both the witnesses examined on behalf of the respondent
have categorically stated in their examination-in-chiefs that, the
applicant has performed marriage with a lady named Guddi, d/o
Hiramani Pandey, r/o Village Kaithia, Mohania and that, he has
son also with the said second marriage, but despite such
categoric averments in the examination-in-chiefs of the
respondent’s witnesses, no question was asked in the cross-
examination on behalf of the petitioner in this regard. As such,
this is deemed to be admission on behalf of the petitioner. It is
settled law that, no one can take benefit of his own fault. The
entire conduct of the petitioner shows that, he himself, has
inflicted cruelty upon the respondent, by making false and
unsubstantiated allegations against her, as well as, Performing
second marriage and suppressing the said fact before this court.
As such, this issue is also decided against the petitioner and in
favour of the respondent.”
82. Thus, from the aforesaid relevant paragraphs of the impugned
judgment, it is evident that that the learned Family Court has observed that
the petitioner, during his cross-examination as P.W.1, admitted at
paragraph 4 that he had never lodged any complaint regarding the alleged
cruel behaviour of his wife. At paragraph 6, he conceded that although he
claimed neglect in respect of physical relations, he had not instituted any
case on that ground. At paragraph 12, he admitted that he had not filed any
case in any court or police station regarding the alleged threats by the
respondent and her brothers and cousins. At paragraph 17, he further
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admitted that the present case was initially filed because the respondent had
lodged a complaint against him in his department, despite his persuasion.
83. Thus, upon a comprehensive appraisal of the evidences and the
testimony of witnesses, it is manifest that the learned Family Court rightly
negatived the claim of the petitioner-appellant that he had been subjected
to cruelty by the respondent-wife. The admissions elicited in
cross-examination of P.W.1 and P.W.2 further weaken the petitioner’s case,
as no contemporaneous complaint or proceeding was ever instituted to
substantiate the allegations of cruelty, adultery, or threats. In contrast, the
respondent-wife has consistently deposed to acts of cruelty and neglect
perpetrated by the petitioner and his family members on account of dowry
demands, which she was compelled to resist through lawful proceedings
under Section 498A IPC.
84. In view of the foregoing, this Court is of the considered opinion
that there is no occasion to take a view different from that of the learned
Family Court on the issue of cruelty.
Issue of Adultery:
85. 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
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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”.
86. Since herein the allegation of extramarital affair has also been
levelled by the plaintiff/appellant therefore in the aforesaid context, it needs
to refer herein that Section 13(1)(i) of the Hindu Marriage Act, 1955, allows
for divorce if the other spouse has, after the marriage, had voluntary sexual
intercourse with anyone other than their spouse and providing a ground for
divorce for either husband or wife. This is one of several grounds under
Section 13(1) for dissolving a Hindu marriage, alongside cruelty 13(1) (ia),
desertion 13(1) (ib), conversion, mental disorder, and venereal disease. For
ready reference, the said section is being quoted herein which reads as
under:
“13. Divorce.–(1) Any marriage solemnised, whether before or
after the commencement of this Act, may, on a petition presented
by either the husband or the wife, be dissolved by a decree of
divorce on the ground that the other party– [(i) has, after the
solemnisation of the marriage, had voluntary sexual intercourse
with any person other than his or her spouse; or”
87. It needs to refer herein that the petition for dissolution of
marriage can lie at the instance of husband or wife, even if respondent has
committed even a single act of adultery [ if he or she has voluntary sexual
intercourse with any person other than his or her spouse).
88. It needs to refer herein that the Hon’ble Apex Court, while
striking down the offence of adultery in “Joseph Shine v. Union of India“,
(2019) 3 SCC 39 also acknowledged how the notion of marriage had
changed since the enactment the Penal Code in 1860:
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“102. The background in which this provision was enacted now
needs to be stated. In 1860, when the Penal Code was enacted, the
vast majority of the population in this country, namely, Hindus, had
no law of divorce as marriage was considered to be a sacrament.
Equally, a Hindu man could marry any number of women until
1955. … Two of the fundamental props or bases of this archaic law
have since gone. Post 1955-1956, with the advent of the “Hindu
Code”, so to speak, a Hindu man can marry only one wife; and
adultery has been made a ground for divorce in Hindu Law.
89. It is considered view of this Court that since adultery is a very
grave allegation in the context of matrimonial life, therefore, a very high
degree or standard of proof is required and the offence of adultery should
be proved beyond reasonable doubt. Further a husband or wife can ask for
divorce only if at the time of filing the suit, the other party ‘is in adulterous
relationship and merely a bald allegation without any cogent evidence of
extra marital intercourse is not sufficient to dissolve the marriage.
90. Now adverting to the factual aspect, it is evident from the
impugned order that the allegations specific to the ground of alleged cruelty
has been made by petitioner-husband. Although the petitioner by way of
amendment has inserted ground of adultery against the respondent-wife in
his plaint for divorce and he has deposed on this point but he has failed to
establish the same by way of his deposition.
91. The petitioner at para-7 of his cross-examination has admitted
that he never caught her wife red handed while establishing physical
relationship with other person and he never lodged any case against the
respondent or Akhilesh Tripathi in this regard. Further, he has admitted at
para-16 of his cross-examination that he has not mentioned the name of any
person other than Akhilesh Tripathy, with whom his wife used to make
illicit relationship. Further, he has admitted that he has not mentioned any
34
2026:JHHC:21869-DB
date on which his wife spent her nights with some other person. He has
further admitted that he has not mentioned the name of any person who
used to give him information regarding his wife establishing illicit
relationship with other person. He has further admitted that he has not
mentioned on which date which person informed him regarding immoral
conduct of his wife.
92. The petitioner has also adduced evidence of PW2 who has
admitted at para-6 of his cross-examination that he had never seen that the
respondent has spent night at Sonari, Bishtupur etc. At para-19 he had stated
that he had seen the respondent with a teacher of Rajasthan School whose
name is Tripathi or Tiwari but he has stated that the age of Akhilesh Tripathi
is about 30-35 years. At para-20 PW2 has admitted that he had never seen
the respondent with any other person except this man. At para-21 he has
admitted that he had never seen the respondent having physical relationship
with any other person. At para-24 he has admitted that he had never
informed the petitioner about illicit relationship of the respondent.
93. Thus, the testimony of PW2 regarding the identification of
Akhilesh Tiwari, with whom the respondent is alleged to have maintained
an illicit relationship, does not appear to be definite or conclusive.
94. The aforesaid testimony 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
35
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be established in all probabilities, has negated the claim of the appellant-
husband.
95. In its finding at para-10, 11 and 12 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 adultery by the
respondent-wife and held that the divorce suit is not maintainable, which
reads as under:
“10. Now I move on to decide the suit issue-wise. I begin with
Issue no. IV, i.e. whether the respondent has, after the
solemnization of marriage, had voluntary sexual intercourse with
any person, other than her husband, the petitioner herein. It is the
case of the petitioner that, respondent herein was never interested
in having physical relationship with him and begetting issue
through him. According to the petitioner, she had expressed her
desire to the petitioner that, she will get issue through others or
she will have tube baby. It is further case of the petitioner, upon
amendment of his pleading that, respondent is living in adultery,
having sexual intercourse with persons other than the petitioner
and she moves freely from Jamshedpur to Daltonganj, without
consent of the applicant. Further that, since June, 2002,
respondent had become street girl, spending nights with other
persons at Bistupur, Sonari, Mango, Nirmal Nagar and other
places at Jamshedpur and since the last six months prior to filing
of this suit, she had been with a person named, Akhilesh Tripathy
and was living in adultery with him also. The case of the
respondent is categoric denial of the allegations made by the
petitioner in this regard.
11. Learned counsel for the petitioner has referred to the
statement of the respondent at para 13 of her written statement,
wherein she has stated that, “When there was no issue for about
more than two years, the petitioner, on the advise of the
respondent, went for treatment to Dr. Chawla, at Jamshedpur,
and both of them were treated by the doctors and the doctor found
the respondent fit for giving birth to a child, but the petitioner was
not found fit for getting any issue through the respondent and so
the petitioner was medically treated by the doctor.” The Ld.36
2026:JHHC:21869-DBcounsel for the petitioner further referred to para 14 of the written
statement of the respondent herein, wherein she has stated that,
“However, in the year 2001, respondent became pregnant, but
after about two months, there was abortion of the child”. The Ld.
counsel for the petitioner has submitted that, this admission on
the part of the respondent, in her written statement, is sufficient
to prove that, the respondent, after solemnization of the marriage,
has had voluntary sexual intercourse with any person other than
the petitioner herein.
Learned counsel for the respondent has submitted that, as
per settled law, there must be clear proof of adultery and standard
of proof to establish a matrimonial offence like adultery, is the
satisfaction of the court beyond any reasonable doubt. She has
further stated that, it is also settled law that, adultery has also to
be inferred from the circumstances which exclude presumption of
innocence in favour of a person against whom it is alleged. Proof
of adultery must be of such character, as would lead a reasonable
man to conclude, no other inference than the misconduct and
further that, mere probability regarding adultery is not enough.
She has further submitted that, as per settled law, no implicit
reliance can be placed on the bald statement of the husband for
recording a finding of adultery against the wife.
As per section 112 of the Evidence Act, Birth during marriage is
conclusive proof of legitimacy. Section 112 of the Evidence Act,
provides that “The fact that any person was born during
continuance of a valid marriage between his mother and any man,
or within 280 days after its dissolution, the mother remaining
unmarried, shall be conclusive prove that, he is the legitimate son
of that man, unless it can be shown that, parties to the marriage
had no access to each other, at any time, when he could have been
begotten”.
In the instant case, as per the case of the petitioner himself, the
parties lived together till 04.05.02. The Respondent has stated
that, she became pregnant in the year 2001. P.W.2 has admitted
upon his cross-examination at para 28 that, it is true that, the
applicant has solemnized second marriage, from which marriage
he has a son. No questions have been asked with respect to the
categoric statements of the Respondent’s witnesses that, the
applicant has performed second marriage and he has a son out
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of the said marriage. This shows that, there is no doubt regarding
the capability of the petitioner to become a father. The petitioner
has nowhere stated in his plaint regarding pregnancy of the
respondent, which fact has been brought. by the respondent in her
written statement at para 14. So, from these two paragraphs, it
can not be inferred that, respondent had become pregnant with
some person, other than the petitioner herein.
12. I further find that, the petitioner, as P.W.1, has admitted upon
his cross-examination at para 7 that, he has not caught his wife
raid-handed while making physical relationship. He has further
admitted that, he had seen his wife residing in the house of
Akhilesh Tripathy till 06 March, but he has not filed any case, in
any court or in the police station against his wife or Akhilesh
Tripathy, in this regard. At para 16, the petitioner has admitted
as P.W.1 that, in his examination-in-chief, he has not mentioned
the name of any person other than Akhilesh Tripathy, with whom
his wife used to make illicit relationship. He has further admitted
at para 16 of his cross-examination that, in his examination-in-
chief, he has not mentioned any date on which, his wife spent her
nights with some other person. He has further admitted at para
16 that, he has not mentioned the name of any person in his
examination-in-chief, who used to give him information,
regarding his wife establishing illicit relationship with other
person. He has further admitted that, he has also not mentioned
in his examination-in-chief that, on which date, which person,
informed him regarding immoral conduct of his wife. At para 17
of his cross-examination, he has admitted that, initially he had
filed this case because his wife had complained in his department
and despite his persuasion she did not obey him. He has further
stated that, he does not remember, as to in which year and in
which court, he had given application for amendment of ground
of divorce. At para 22 of his examination-in-chief, he has stated
that, statement of his wife that, she was pregnant in the year 2001,
when he was not capable to make her pregnant, shows that, she
was pregnant from some other persons, but upon his cross-
examination at para 24, he had admitted that, with regards his
statement made in para 22 of his examination-in-chief, he has not
filed any medical prescription, nor he had lodged any case in this
regard. I further find that, the petitioner herein has got examined
one Umesh Prasad as P.W.2, who, upon his cross-examination
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has admitted at para that it is true that statement made in para 4
of his examination-in-chief is false. At para 6 of his cross-
examination, P.W.2 has admitted that, he has not seen the
respondent spending nights at Bistupur, Sonari, and other places.
At para 7 he has admitted that, the petitioner had told him that,
the respondent does not want to spent night with him. P.W. 2 has
admitted that, he was driver in J.N.A.C, where the petitioner also
use to work. At para 18 he has admitted that, the petitioner had
told him that, respondent does not establish physical relationship
with him. At par 19 he has stated that, he had seen the respondent,
moving around along with a teacher of Rajasthan School, whose
name was some Tripathy or Tiwary. At para 20, he has admitted
that, apart from this, he had not seen respondent with any other
person. At para 23 of his cross-examination, P.W.2 has admitted
that, at present Akhilesh Tripathy might be of 30-35 years old. He
has denied the suggestion that, he has never seen Akhilesh
Tripahty. It is the case of the petitioner that, respondent was
having illicit relationship with Akhilesh Tripathy. The Petitioner,
as P.W.I, has admitted upon his cross-examination at para 19
that, father of the respondent and Akhilesh Tripathy, were almost
of the same age. The petitioner has stated his age to be 57 years,
in his examination-in-chief, as P.W.1. The respondent has stated
her age A be 52 years, in her examination-in-chief, as R.W.1.
P.W.2 claims to have seen Akhilesh Tripathy, with whom, the
petitioner alleges that, his wife was having illicit relationship and
he has stated that, the said Akhilesh Tripathy is 30-35 years old.
This shows that, P.W.2 is not at all reliable.
On the basis of above discussions, I am of the view that, petitioner
has failed to establish that, the respondent has, after
solemnization of her marriage, had voluntary sexual intercourse
with any person other than the petitioner herein. As such, this
issue is decided against the petitioner and in favour of the
respondent.”
96. From the statement of the appellant, it is apparent that the
generalized statement has been made about illicit relation of respondent
wife and further the petitioner/appellant has not alleged that he has ever
seen any specific incident of respondent adulterous/sexual act confirming
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or supporting his suspicion that respondent being in adulterous relationship
with anyone else. Thus, it appears that the allegation made in petition gives
impression that whatever he has alleged is based on his suspicion and
surmises.
97. Further, there was no cogent material to prove that the
respondent/wife having illicit relation with some other person, on account
of which she has left the appellant/husband and a such the very allegation
is merely a ballpark assessment of the respondent/husband.
98. Further since the finding of adultery would adversely affect the
interest of alleged adulterer, opportunity should be given to him to defend
himself and to disprove the claim of adultery, the said adulterer should be
arrayed in the proceedings which would help the court to effectively and
completely adjudicate the controversy. Further, if an allegation is made by
husband that is required to be proved by the husband by way of leading the
evidence and that cannot be adjudicated effectively without making the
adulterer as one of the parties. But in the instant case the person against
whom allegation of alleged adultery has been levelled has not been made
party.
99. The rationale underlying this mandate is that allegations of illicit
relationship, if established, entail grave civil consequences and cast a
lasting stigma upon the alleged paramour. To record such findings without
affording the said individual an opportunity of hearing would be repugnant
to the fundamental principle of audi alteram partem.
100. It is evident that at para-7 of his cross-examination the
petitioner/appellant has admitted that he never caught her wife red handed
while establishing physical relationship with other person and he never
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lodged any case against the respondent or Akhilesh Tripathi in this regard.
At para-16 he has admitted that he had not mentioned in his affidavit on
oath the name of any other person with whom her wife (the respondent)
was having illicit relationship. Further P.W.2 at para-21 of his cross-
examination has admitted that he had never seen the respondent having
physical relationship with any other person.
101. Thus, from the aforesaid it is evident that the learned Family
Judge has considered the aforesaid facts and has observed that 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.
102. From the aforesaid, it is also evident that the petitioner/appellant
has alleged the circumstances which led him to his suspicion and surmises
in his doubtful mind as to adulterous behaviour of respondent-wife but he
has failed to prove those circumstances and the inference drawn by him is
not based on any cogent and acceptable evidence.
103. This Court, after discussing the aforesaid factual aspects in
conjunction with the settled legal position and upon adverting to the
consideration made by the learned Family Judge in the impugned judgment,
finds that the issue of alleged adultery was duly examined and consciously
dealt with by the learned Family Judge.
104. Accordingly, on the basis of the discussion hereinabove, it is the
considered view of this Court that the finding of the learned Family Court
on the issue of the respondent-wife’s alleged adulterous conduct cannot be
said to suffer from any error warranting interference.
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105. This Court, upon consideration of the findings arrived at by the
learned Family Judge and in light of the foregoing discussion, is further of
the view that the judgment and decree passed by the learned Family Court
do not fall within the ambit of perversity. The impugned judgment reflects
a conscious and reasoned appreciation of both ocular and documentary
evidence, as is evident from its detailed analysis.
106. This Court, therefore, is of the view that the judgment dated
04.01.2019 and the decree signed and sealed on 15.01.2019 passed in
Original Suit No. 136 of 2002 by the learned Family Judge needs no
interference.
107. Consequently, the instant appeal stands dismissed.
108. Pending I.A(s), if any, stands disposed of.
(Sujit Narayan Prasad, J.)
I Agree.
(Pradeep Kumar Srivastava, J.)
(Pradeep Kumar Srivastava, J.)
Sudhir
Dated:23/07/2026
Jharkhand High Court, Ranchi
AFR
Uploaded on 23/07/2026.
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