Jharkhand High Court
Santosh Kumar vs Kumari Arpana on 20 March, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
2026:JHHC:8031-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 245 of 2024
--------
Santosh Kumar, S/o Baidyanath Mandal, Aged about 35
years, R/o Mohalla-Rambag East of Kankari Temple, P.O.
KSDSU (Lalbagh), P.S. L.N.M.U., District Darbhanga (Bihar).
...... Appellant/petitioner
Versus
Kumari Arpana, W/o Santosh Kumar, Aged about 32 years,
R/o Mohalla-Kamalkothi, Purandaha Road, P.O. B. Deoghar,
P.S.-Town, District-Deoghar.
...... Respondent/Respondent
-------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SANJAY PRASAD
-------
For the Appellant : Mr. Lukesh Kumar, Advocate
: Mr. Praveen Shankar Prasad, Advocate
: Mr. Namashyu Kejriwal, Advocate
For the Respondent : Ms. Shivani Jaluka, Advocate
------
Order No.06/Dated: 20.03.2026
Per Sujit Narayan Prasad, J.:
1. The instant appeal under Section 19(1) of the Family
Court Act, 1984 is directed against the judgment dated
29.07.2024 and Decree dated 09.08.2024 passed by the
learned Principal Judge, Family Court, Deoghar in Original
Suit No.288 of 2022, whereby and whereunder, the petition
filed under Section 13 of the Hindu Marriage Act, 1955 by the
Petitioner (appellant herein) seeking a decree of divorce
against his wife (respondent herein), has been dismissed.
Factual Matrix
2. The brief facts of the case leading to filing of the
divorce petition by the appellant/ plaintiff needs to be referred
1
2026:JHHC:8031-DB
herein as under:
The petitioner was married with the respondent on
29.11.2017, at the Baba Basukinath Temple, Dumka,
according to the Hindu rituals and rites without any dowry.
The petitioner/appellant is a doctor and he does his
private practice, whereas the respondent is a medical student
of 4th year. After marriage, the parties started to live together
as husband and wife in the petitioner’s residential house.
It has been alleged that just after some days of
marriage, the respondent started to live under the pressure of
her brothers namely Sailesh Prasad Singh and Brajesh Prasad
Singh and she used to give physical and mental torture to the
petitioner. Both the aforesaid brothers of the respondent were
interfering in the conjugal life of the petitioner and his wife
and they were giving mental torture to the petitioner.
The respondent was always acting at the instance of
her said brother and she did not like the petitioner due to
which the petitioner suffered a lot of mental pain and agony
and spent his sleepless nights. It has further been stated that
the respondent used to frequently flee away to her Naihar
without asking the petitioner and his family members and
ultimately on 20.02.2018, the respondent fled away from the
petitioner’s house without asking the petitioner or his family
members.
2
2026:JHHC:8031-DB
Thereafter, on 28.02.2018, the respondent got
surgery of her uterus for about 20 cm in length at the instance
of her brothers in the Gleneagles Hospital, Chennai without
knowledge and consent of the petitioner, so that she may not
conceive and deliver a baby.
It has been alleged that both the aforesaid brothers
of the respondent wants that the respondent should not
conceive and deliver child and she can live far away from her
husband, so that they can take all the earnings of the
respondent from her practice and they had got the surgery of
the respondent’s uterus for the aforesaid purpose without
knowledge and consent of the petitioner.
Thereafter, on 04.07.2018, the respondent again
came to the house of petitioner, whereafter the petitioner
came to know about the surgery of the respondent.
On 07.07.2018, the respondent again left the
petitioner’s house without asking him and his family members
and further there was no cohabitation between the parties
during the said period.
It has been alleged that due to the aforesaid surgery
of the respondent’s uterus, there is no chance of new
generation of petitioner from the wedlock of respondent and
there is no issue from the wedlock of the parties. The
petitioner is unable to live with the respondent due her
3
2026:JHHC:8031-DB
aforesaid cruel act and further, lack of her love and affection
towards the petitioner.
It has been stated that the cause of action for this
suit arose on 20.02.2018, when the respondent finally left the
house of petitioner and it further arose on 28.02.2018, when
the respondent got surgery of her uterus in the Glengagle
Hospital, Chennai without knowledge and permission of the
petitioner and further on 04.07.2018 and 07.07.2018 also.
Thereafter, being aggrieved with the conduct of
respondent-wife, the appellant-husband had preferred a suit
in the Court of learned Principal Judge, Family Court,
Darbhanga but subsequently, vide order dated 08.08.2022 of
the Hon’ble Supreme Court of India, passed in Transfer
Petition (Civil) No. 69/2020, with Transfer Petition (Criminal)
No. 36/2020, this suit was transferred to the Court of learned
Principal Judge, Family Court, Deoghar.
3. Thereafter, effort for conciliation was taken but the
same could not succeed and hence, the matter was fixed for
filing written statement by the respondent.
4. Thereafter, on 21.09.2023, the respondent had filed
her written statement, stating therein that the instant suit
has been brought by the petitioner on quite false and bogus
allegations with an intention to save himself from the cruelty
and torture done by him and his family members upon the
4
2026:JHHC:8031-DB
respondent.
It has further been stated that the petitioner and his
family members had committed physical and mental cruelty
upon the respondent and they were demanding a Car and
Rs.9,00,000/- in cash from her and on non-fulfillment of their
said demand, they assaulted and abused the respondent and
committed cruelty upon her.
It has been stated that the petitioner had his illicit
relation with his own Bhabhi and when the said relation was
opposed by the respondent, the petitioner and his Bhabhi
became enemy of the respondent and threatened to commit
her murder.
It has further been stated that the respondent was
doing her study of MBBS course in the Medical College at
Janakpur, Nepal but the petitioner and his family members
objected the same and told that they will not allow the
respondent to continue her study and the respondent will
have to live as a housewife in her matrimonial home.
It has been stated that the petitioner is a Doctor and
he did not like the respondent and wanted to solemnize his
marriage with another girl of his choice.
It has been alleged by the respondent that the
petitioner had assaulted the respondent with fists and slaps
and she was not allowed to take proper food and medicine.
The petitioner and his Bhabhi Pratibha Rani had assaulted
5
2026:JHHC:8031-DB
the respondent in her uterus due to which there was acute
pain in her uterus. The respondent contacted with the Doctor
of her Naihar family, whereupon she was advised to undergo
a minor surgery of her uterus and accordingly, the said
surgery was done in Chennai on 27.02.2018, and the Doctor
opined that even after the said surgery, the respondent is fit
for conceiving. But, in spite of that the petitioner and his
family members started to say the respondent as Banjh, who
cannot give birth of a child and the respondent was being
subjected to cruelty and torture.
She has stated in her written statement that on
07.07.2018, the petitioner and his family members closed the
respondent in a room and assaulted her and they snatched
away all the ornaments of respondent and ousted her from
her matrimonial home on 08.07.2018.
Thereafter, the brother of respondent made several
attempts for keeping the respondent in her matrimonial home
but the petitioner was not ready for it and he tried to
solemnize his second marriage.
It has further been alleged that the petitioner has
solemnized his second marriage with another girl and he is
living with her. The petitioner has neglected and deserted the
respondent and the instant suit has been filed by him on quite
false and concocted grounds only for the purpose of getting
rid from the respondent by taking advantage of his own
6
2026:JHHC:8031-DB
wrong.
It has been stated that the respondent had never
committed any cruelty towards the petitioner and she was
always living with her husband peacefully and by giving him
full honour and dignity. But actually, the petitioner and his
family members were demanding dowry and they were
subjecting the respondent with cruelty for its fulfillment and
he does not like the respondent.
The respondent was ousted from her matrimonial
home by the petitioner for fulfillment of his demand of dowry,
for which the respondent has already filed a Complaint Case
under Section 498A of the Indian Penal Code against the
petitioner which is still pending in the Court of learned C.J.M.,
Deoghar.
Further, the respondent had filed a Maintenance
Case No. 182/2019, also which was disposed off on
05.07.2023 and the appellant herein has been ordered to pay
maintenance to the respondent @ Rs. 20,000/- per month but
even thereafter, the petitioner has not paid any maintenance
to the respondent and he has brought the instant suit on quite
false and concocted grounds which is liable to be dismissed.
On the aforesaid grounds, the respondent has prayed to
dismiss the suit with cost.
5. Based upon the pleading, the learned Family Court
altogether has framed five issues which are as follows:
7
2026:JHHC:8031-DB
“(i) Whether the suit as framed is maintainable for the
reliefs claimed?
(ii) Whether the petitioner has a valid cause of action to
bring this suit?
(iii) Whether the respondent has subjected the petitioner
with cruelty?
(iv) Whether the respondent has deserted the petitioner
since 07.07.2018?
(v) Whether the petitioner is entitled to get the reliefs
claimed or any other reliefs?”
6. The suit has been filed on the ground of cruelty and
desertion but the issues could not be proved and accordingly,
the prayer for dissolution of marriage has been dismissed by
the learned Family Court which is the subject matter of the
present appeal.
Submissions advanced by the learned counsel appearing
for the appellant:
7. Learned counsel appearing for the appellant-
husband has taken the following ground in support of his
case: –
(i) Learned counsel has submitted that the Learned Family
Court has failed to appreciate that the appellant has
produced credible evidence which are sufficient to
establish his case and the appellant is entitled for grant
of decree of divorce on ground of cruelty and desertion.
(ii) Further, it has been submitted that the findings
recorded by the learned Trial Court while answering
8
2026:JHHC:8031-DBissue no.(iii) cruelty and (iv) desertion are perverse and
based on mere presumption, therefore, the same will not
stand in the eye of law.
(iii) It has been contended that the learned Family Court has
failed to take into consideration the material facts while
passing the impugned Judgment and has committed a
grave error of law and fact.
(iv) It has been submitted that the learned Family Court has
committed a grave error of law and fact in passing the
impugned Judgment as the entire proceeding has been
proceeded without admitting the evidences on record.
(v) He has submitted that the learned Family Judge has
committed a grave error as the learned court has not
taken into consideration that the parties are not residing
together for the last more than seven and a half years
and there is no scope of resettlement between the
parties.
(vi) The learned Family Court has failed to take into
consideration that during the deposition the petitioner
has categorically stated that the defendant has been
doing cruel behavior with him and with the entire family
members of the plaintiff. The defendant used to quarrel,
abuse and threatened the plaintiff family members.
(vii) The learned Family Court has failed to take into
consideration that the present case is not merely a
9
2026:JHHC:8031-DBfamily dispute or it is a dispute between the husband
and wife rather the defendant has been treating entire
family members of the plaintiff with cruelty. This is not
a just family dispute rather this is a criminality on the
part of the defendant.
(viii) The learned Family Court has committed a grave error of
law and fact in passing the impugned Judgment as the
witnesses have supported the case of the appellant but
the same has not been taken into consideration by the
learned Family Court.
(ix) The learned Family Court has also failed to take into
consideration while passing the impugned Judgment
that the appellant and respondent are not living together
for the last more than seven and a half years and the
efforts of mediation such as personal meetings,
Panchayati were made but all went in vain and the
respondent is adamant not to restore matrimonial life
with the appellant.
(x) The learned Family Court has failed to take into
consideration while passing the impugned Judgment
that the respondent intentionally did not want to come
with the appellant and this shows that she is also ready
and willing to take divorce from the appellant as she is
residing in her Maike since the year 2018 itself and this
aspect of the matter has not been taken note by the
10
2026:JHHC:8031-DBlearned court below.
(xi) It has been contended that the learned Family Court has
failed to take into consideration while passing the
impugned Judgment that the respondent without any
problem or cause on the part of the appellant left the
house of the appellant with her own and went to her
parent’s house and she is residing there. Further it has
been tried the level best by the appellant to bring her
back to his house and maintain the peace of his family.
But she is so adamant and kept continued her cruel
behavior towards appellant and his family members.
(xii) Learned counsel has submitted that the learned Family
Judge has failed to take into consideration while passing
the impugned Judgment that from the pleading itself it
is quite clear that there is no scope that the parties to
the present case could stay together as they both are
living separately since the year 2018 itself and hence no
fruitful reason will be there for not allowing the divorce
to the parties.
(xiii) Learned counsel for the appellant has submitted that the
respondent had filed Bail Cancelation against the bail
order dated 27.01.2023 of the appellant being Cr.M.P.
407/2023 and in the said Cr.M.P. the respondent has
filed supplementary affidavit and stated that she does
not want to stay with the appellant and there after her
11
2026:JHHC:8031-DB
petition for bail cancelation was dismissed.
(xiv) Learned counsel has submitted that the sister of the
respondent namely Ila Kumari @ Ila Sinha has also filed
Cr. Misc. Case No. 142/2014 under section 125 of
Cr.P.C. for maintenance against her husband namely
Rajiv Nandan Singh @ Bipin Bihari Singh and the said
maintenance case was allowed and it was directed to Rs
17,500/- to the wife and Rs 7000/- to the three
daughters, further it is also stated that respondents
brother namely Brajesh Prasad Singh has also filed
Divorce Petition u/s 13 of Hindu Marriage Act being
O.M. No. 04/2018 and in the said case there marriage
was dissolved and Divorce was granted hence it is stated
that the whole family of the respondent is of the same
mentality they just want to harass their spouses and
want to extract money.
(xv) The learned Family Judge has failed to take into
consideration while passing the impugned Judgment
that no medical report of the said uterus surgery has
been brought on record by the respondent that for what
reason the said surgery has been done, the said surgery
has been done in the year 2018 but no document has
been submitted with regard only a prescription has been
filed and the said prescription is of 3 months after the
surgery that is also a follow-up prescription and not a
12
2026:JHHC:8031-DB
detailed medical report.
(xvi) Learned counsel has submitted that before passing of
the said judgment the learned family court quarried
about medical report to the respondent thereafter the
respondent had brought on record the ultrasound report
of 2024 which appears to be fake as the said ultrasound
has been referred by her own brother namely S.P. Singh.
(xvii) It has been submitted that the learned Family Court has
failed to take into consideration while passing the
impugned Judgment that in the Complaint case No.
312/2019 filed by the respondent under section 12 of
the Domestic Violence Act, 2005 against the petitioner
and Pratibha Rani (wife of petitioner’s elder brother)
where in the petition at page no. 4, para 1.3 respondent
has stated that she had went to Chennai to undergo
medical treatment and surgery to remove internal
fibroids (benign tumors) from her uterus at Gleneagles
Global Health City, Chennai but it is pertinent to
mention that the respondent earlier also filed another
complaint case being Complaint case No. 876/2018 filed
u/s 498 A of I.P.C. and u/s 3 and 4 of D.P. Act 1961
implicating the entire family of the petitioner, where in
the petition at page no. 6, para 12 the respondent has
stated that petitioner and Gotni Pratibha Rani had
assaulted the respondent near her uterus and acute
13
2026:JHHC:8031-DB
pain started in her abdomen and for the said reason she
had to undergo surgery of her uterus, hence it is clear
that both the statements are contradictory as in the
complaint case No.312/2019 respondent had nowhere
stated that the petitioner has assaulted her in her genital
part and in the Complaint Case No.876/2018 she has
alleged that petitioner has assaulted her in her genital
part and due to which she has to undergo her uterus
surgery, which is totally a concocted story just to harass
the petitioner/appellant.
(xviii) It has been submitted that the learned Family Judge
has failed to take into consideration that as it is alleged
by the respondent that she has been assaulted by the
appellant in here genital part of the body and for the said
reason she has went to Chennai for her uterus surgery
but when asked she has stated in her cross examination
that she has not lodged any case against the appellant
in this regard which shows the ulterior motive of the
respondent that she only want to harass the appellant.
(xix) It has been contended on behalf of the appellant that the
factual aspect which was available before the learned
court supported by the evidences adduced on behalf of
the appellant has not properly been considered and as
such, the judgment impugned is perverse, hence, not
sustainable in the eyes of law.
14
2026:JHHC:8031-DB
(xx) Learned counsel for the appellant has submitted that the
specific pleadings of the plaintiff/ appellant to the effect
that the respondent wife has eloped with another person
on 30.04.2021 even though the aforesaid fact has not
been properly appreciated by the learned Family Court.
(xxi) The learned court further failed to take note of the fact
that the relationship between the parties had
deteriorated to such an extent that it has become
impossible for appellant to live with the respondent wife
but the same has not been properly taken into
consideration by the learned Family Court.
(xxii) Learned counsel for the appellant has submitted that
such categorical statements on the part of different PWs
clearly proves factum of cruelty.
8. Learned counsel for the appellant, based upon the
aforesaid grounds, has submitted that the judgment
impugned suffers from perversity, as such, not sustainable in
the eyes of law.
Submissions advanced by the learned counsel appearing
for the respondent:
9. Learned counsel for the respondent-wife, defending the
impugned order, has taken the following grounds: –
(i) It has been submitted that the appellant has sought
divorce on the ground that the behaviour of respondent-
wife towards the appellant and his family members is
15
2026:JHHC:8031-DB
torturous and, therefore, the appellant cannot
reasonably be expected to live with the respondent but
the learned Family Court, after taking into consideration
the evidence, has held that the appellant-husband has
not succeeded to prove and establish the ground of
cruelty and has rightly dismissed the suit.
(ii) It has been contended that allegation against respondent
as to her illicit relation is also based on mere suspicion
of the appellant because except the generalized
statement made about illicit relation of respondent/wife,
the appellant has not alleged/claimed that he has ever
seen any specific incident of the adulterous/sexual act,
therefore the finding of learned Family court is
absolutely correct based upon the evidences led by the
appellant/husband.
(iii) Learned counsel for the respondent has further
submitted that learned trial court has rightly held that
the appellant is not entitled for the decree of divorce on
the ground of cruelty and desertion because the
appellant has miserably failed to prove his case even to
the extent of preponderance of probabilities.
(iv) Learned counsel has submitted that the respondent had
never subjected the petitioner with cruelty nor she had
ever quarreled with him and the respondent had never
left her matrimonial home without permission of her
16
2026:JHHC:8031-DB
husband and she was always ready to lead a peaceful
and proper conjugal life with the petitioner with full love
and affection and proper dignity. But the petitioner and
his family members were regularly subjecting the
respondent to cruelty for fulfillment of their illegal
demand of dowry and they were abusing and assaulting
her also for which the respondent had already filed a
Complaint Case against the appellant/petitioner.
(v) Learned counsel for the respondent has submitted that
the appellant/petitioner and his family members were
not ready to allow the respondent to continue her study
of MBBS and they were pressurizing her to discontinue
her study and live in their house as a house wife.
(vi) It has further been argued that the respondent has illicit
relation with his Bhabhi and he is interested in another
girl also, for which he is trying to get rid from the
respondent and the entire allegations made by the
petitioner in his petition is totally false and concocted,
as such, the petitioner’s petition has no merit and the
same is liable to be dismissed
10. Learned counsel for the respondent-wife on the
aforesaid grounds has submitted that the impugned judgment
requires no interference by this Court.
Analysis:
17
2026:JHHC:8031-DB
11. We have heard the learned counsels appearing for the
parties, gone through the Trial Court Records, as also the
impugned judgment, the testimonies of the witnesses and the
documents exhibited therein.
12. This Court, before looking into the legality and
propriety of the impugned order, requires to refer the
testimonies of the witnesses, as available on record.
13. The appellant, in support of his case, has adduced
four witnesses including himself. The relevant portion of the
testimonies of the witnesses are mentioned as under:-
P.W.1 Santosh Kumar, the appellant himself, has stated
in his examination-in-chief that he is a Doctor and his wife
is also a MBBS doctor. After marriage, his wife was denying
to make physical relation with him and she was saying
that she has a boyfriend due to which he is suffering from
mental stress.
He has further stated that his wife had refused to live
with his parents and she was pressurizing him to take her
in a separate rented accommodation by giving threatening
of assault by her boyfriend. His wife was not cooking food
due to which he had to cook food by himself and his wife
was pressurizing him to bring food from restaurant every
day. She used to assault his father and mother by Sandal
and used to tear clothes also. She has no love for him and
she was torturing him mentally at the instigation of her
18
2026:JHHC:8031-DBbrothers. She was pressurizing him to transfer his all
earnings in her account and settle in Deoghar. His wife
used to go to her Naihar frequently without his permission.
He has further stated that on 20.02.2018, the
respondent had left his house without his permission and
subsequently on 28.02.2018, she got surgery of her uterus
at the instigation of her brother, so that she may not give
birth of a child. On 04.07.2018, his wife again came to his
house and thereafter, he came to know about her
operation. But, again on 07.07.2018, the respondent left
his house without intimating anyone and she did not make
any relation with him during the said period.
He has stated that his wife has ended all the
possibilities of his next generation by getting her uterus
operated and it has become impossible to lead his conjugal
life with the respondent due to her aforesaid torturous act.
Further, in his cross-examination this witness has
stated that he did not file any case in any police station or
Court regarding the incident of assault by his wife.
He has no knowledge as to whether his wife has
completed her MBBS course or not. She had got her
admission in MBBS course in the year of 2012 and hence,
he is saying that she is a MBBS doctor. His wife has lodged
a case against him and his family members on the ground
of her torture and they have got bail in that case. He had
19
2026:JHHC:8031-DBgiven Rs. 2,00,000/- in cash to his wife for doing the
course of her MBBS but he does not have any fee-receipt.
After marriage, his wife was doing MBBS course and she
was living in Janakpur and her Maikay during the said
period. After marriage, his wife lived only for two months
in his house. He had got an insurance in the joint name
(he and his wife) of and he is still paying premium of the
said insurance. He does not want to keep my wife with
him. He has stated that he did not bear the expense of the
surgery of uterus of my wife because he had no knowledge
about it. He has also stated that he had refused to keep
his wife with him in mediation which was conducted in
course of hearing of my Anticipatory Bail petition.
He has further stated that he has not given any
expense to his wife since 2018. He has not paid the
maintenance, awarded to his wife in the maintenance case,
because he has challenged the said order before the
Hon’ble Court.
Further, he has denied the suggestion that he had
assaulted in abdomen and uterus of his wife due to which
she had to undergo surgery of her uterus.
P.W.2 Anurodh Kumar (brother of the appellant).
He has stated in his examination-in-chief that after
marriage, the respondent had come to his house and
started to live with the petitioner as husband-wife. The
20
2026:JHHC:8031-DBrespondent was saying that she will not live with her in-
laws and she was pressurizing the petitioner to keep her
in a separate rented house. She was saying that she has a
boyfriend and she was refusing to make physical relation
with the petitioner due to which he had to suffer from
mental agony. The respondent was not cooking food in her
house and she was pressurizing the petitioner to order
food from restaurant every day.
He has stated that the respondent used to assault
the petitioner and his parents by Sandal and tear their
clothes and she was saying him to transfer his entire
earnings in her account and settle in Deoghar. She used
to leave her matrimonial home frequently without
informing about it to any one at the instigation of her
brother. The respondent has got her Uterus operated, so
that she cannot deliver a baby. The respondent has lost
her love affair with the petitioner due to her cruel act and
hence, it is impossible for the petitioner to live with her.
The petitioner had filed this case for divorce on 17.12.2018
and thereafter the respondent had lodged a case under the
Provisions of the Domestic Violence Act on 26.03.2019 and
further on 10.07.2019 she has lodged a false case against
his brother under Section 498A of the Indian Penal Code
also. The respondent is torturing his brother and family
members by filing false cases.
21
2026:JHHC:8031-DB
Further, in his cross-examination this witness has
said that he lives separate from his brother (petitioner).
The petitioner has his own Clinic. He lives separate in his
Village along with his wife. He was living separately from
the petitioner even at the time of his marriage also. his
brother and mother had told his about the surgery of the
respondent’s Uterus. They had tried to pacify the
differences between the respondent and petitioner and
wanted to call Panchayati also but the respondent’s
brother did not allow them to call Panchayati. His brother
had not filed any case for restitution of conjugal rights.
They did not make any video of the incident of assaulting
by the respondent to her husband nor the petitioner had
got his treatment any time due to assault by the
respondent. He is a Contractor. They did not take the
respondent to any Doctor for knowing as to whether she is
able to deliver a child or not. He has further said that even
if it comes in medical report that the respondent is able to
deliver a child, the petitioner shall not keep her with him.
Further, he has denied from this suggestion that the
petitioner has illicit relation with another girl.
P.W.3 Sundar Kumar has stated in his examination-
in-chief that after coming to her matrimonial home, the
respondent started to pressurize the petitioner from the
very first day to live separate from her in-laws in a rented
22
2026:JHHC:8031-DBhouse. The respondent was not allowing the petitioner to
make physical relation with her and she was always
threatening him to get assaulted by her brothers due to
which the petitioner was living in mental stress.
The respondent’s brothers were always threatening
the petitioner for which an informatory petition No.
744/2018, dated 05.07.2018, was given in the Court of
Learned Chief Judicial Magistrate, Darbhanga. Further,
an information was given in the Court of S.D.M.,
Darbhanga also on 06.07.2018. The respondent was
assaulting the petitioner and his parents with Sandal and
she used to tear their clothes and thereby give mental and
physical torture to them. She was not cooking food in her
matrimonial home. After filing of this case for divorce by
the petitioner, the respondent has given a false petition
under the provisions of Domestic Violence Act, with an
intention to harass the petitioner and further she has got
her uterus operated without information and consent of
petitioner, so that she may not give birth of a child. The
respondent has filed a false case under Section 498A of the
Indian Penal Code against the petitioner and she was
blackmailing the petitioner by creating a duplicate face
book account, for which the petitioner had given a petition
in Cyber Crime vide Registration No. 13499, dated
17.07.2019. The respondent was always pressurizing her
23
2026:JHHC:8031-DBhusband to hand over his entire earnings in her account
and she has deserted the petitioner since last five years.
The respondent used to leave her matrimonial home
without saying about it to anyone and she had left her
matrimonial home at the instigation of her brother. After
surgery of her uterus, the respondent came to the
petitioner’s house on 04.07.2018, whereafter, the
petitioner and his family members could come to know
about her surgery. Thereafter, on 07.07.2018, the
respondent again left her matrimonial home. The
petitioner has become puzzled due to cruel act of the
respondent and it is impossible for him to live with her.
Further, in his cross-examination this witness has
said that he has not seen the respondent’s certificate of
MBBS. The petitioner was saying him only about the
incidents of quarrel between a husband and wife. The
petitioner has not remarried but he does not want to keep
the respondent. The petitioner has not given any
maintenance to his wife since the filing of case by her on
the ground of her torture for demand of dowry. Today he
has been brought by the petitioner’s brother. Further, he
has denied from this suggestion that the petitioner had
ousted the respondent from his house for fulfillment of his
demand of dowry and he has filed this case for divorce on
the false allegations.
24
2026:JHHC:8031-DB
P.W.4 Raj Kumar has stated in his examination-in-
chief that the petitioner happens to be his maternal uncle.
The petitioner was living in depression since just after two
days of marriage and when he asked about its reason, the
petitioner told him that he is not getting pleasure of wife.
His maternal aunt (respondent) was not cooking food and
she used to assault his maternal grandfather and maternal
grandmother. He had seen that the respondent was talking
with her brothers for hours and thereafter, she used to
become angry and demand huge amount from the
petitioner for which there were repeated incidents of
quarrel between the petitioner and the respondent.
His maternal uncle had told him that the respondent
cannot conceive. The respondent had lived in the
petitioner’s house for altogether two months and ten days
but she did not conceive during the said period. In the
night of 19.02.2018, he had seen that the respondent had
packed her entire belongings and ornaments and
thereafter on 20.02.2018, she went to her Naihar along
with her brother without disclosing about it to the
petitioner and his parents.
He came to know from his maternal uncle (petitioner)
that the respondent has got her uterus operated and she
is unable to give birth of a baby. The respondent had come
to her matrimonial home again on 04.07.2018 and there
25
2026:JHHC:8031-DB
was severe quarrel between the petitioner and the
respondent during that period and ultimately on
07.07.2018, the respondent again left her matrimonial
home without saying to the petitioner. The respondent has
told the petitioner to solemnize his second marriage and
he has its recording also and its pen drive has been filed
in this case. The respondent did not come to live with the
petitioner in spite of his repeated requests due to which
the petitioner had to file this case for divorce.
He has further stated that he has filed some medical
reports and MRI report of the uterus of the respondent
which goes to show that the right Fallopian tube of the
uterus of the respondent has permanently blocked and
there is a tumor of big size in her uterus also.
Further, in his cross-examination this witness has
stated that he has no source of income. The petitioner runs
a private clinic in Bohari, District- Darbhanga. Earlier the
petitioner was a Government doctor, but due to the
litigation with his wife, he has left his job. The petitioner
does not want to keep his wife with him. He has no
knowledge that prior to filing of this case for divorce by the
petitioner, his wife had already filed a case on the ground
of her torture for dowry. He did not suggest petitioner to
keep the respondent with him. He does not know the
meaning of “Pelvis” and his maternal uncle has told him
26
2026:JHHC:8031-DB
about it. His affidavit was got prepared by his maternal
uncle (petitioner) in his house and the medical terms have
been mentioned in it on the saying of his maternal uncle.
He cannot say about the size of tumor. Further, he has
denied from this suggestion that the petitioner and his
family members were torturing the respondent for
fulfillment of their demand of dowry and they had ousted
her from their house after assaulting her. Further, he has
denied from this suggestion that the instant case has been
filed by the petitioner for saving his skin from the case filed
by the respondent against him on the ground of her torture
for demand of dowry.
14. The respondent-wife has examined herself as D.W.1
and no other witness has been examined on her behalf in
support of her case. The statement of the respondent D.W.-1
is being referred herein :-
D.W.1 Kumari Arpana is the response-dent herself. She
has stated in her examination-in-chief that the instant
case has been filed by her husband with false allegations
and all the assertions made by him in his petition are false
and concocted.
She has stated that her father and brothers had given
Rs. 25,00,000 to 30,00,000 to her husband and his family
members at the time of marriage. After marriage, she had
gone to her matrimonial home and started to live there
27
2026:JHHC:8031-DBwith her husband and in-laws. But, her husband and his
family members started to torture her mentally and they
were demanding Rs. 9,00,000/- in cash and a Car from
her as dowry and they were taunting for inadequate dowry.
She has stated that her husband was always abusing
her and he was subjecting her to mental and physical
torture. Her in-laws were also torturing her both mentally
and physically and they were instigating her to commit
suicide. After some time, she came to know and had herself
seen also that her husband has illicit relation with his
Bhabhi and his other family members were also aware
about it. She protested the said relation of her husband,
but none of the family members supported her and they
were harassing her even on petty matters and threatening
to kill her.
She has stated that her husband and his elder
brothers were against her study and they wanted to
discontinue her study. The people of her Naihar persuaded
her husband and his family members but in spite of that,
they were adamant on their demand of dowry and they
continued their torture. Her husband used to assault her
by Belt and her mother-in-law and Gotni were also
assaulting her with fists and Broom. Her husband and
Gotni had assaulted her near her private part, due to
which she felt too much pain and on consulting with
28
2026:JHHC:8031-DBdoctor, it was told by the doctor that there was scar in her
uterus for which a minor surgery is required. Her husband
and his family members were not ready for her surgery
whereafter, her brothers spent about Rs. 2-3 lakh in her
surgery. On 07.07.2018, her husband confined her in a
room and brutally assaulted her with the help of his family
members. The petitioner and his family members had
conspired to kill her and they had poured Kirosene Oil on
her body and tried to set her ablaze but on raising hulla
the people of nearby came and her life could be saved.
Thereafter, on 08.07.2018 her husband and his family
members ousted her from their house after assaulting her
and snatching away her ornaments and articles. The
people of her Naihar had tried to settle the matter and keep
her in the matrimonial home and on 08.07.2019, they had
called a Panchayati also and the people of her matrimonial
home had come to Deoghar but they flatly refused to keep
her with them without fulfillment of their demand of
Honda City Car and cash Rs. 9,00,000/-. They were saying
her to produce certificate regarding my capability of giving
birth of a child and my husband threatened to remarry.
Thereafter, she filed a case in the Court of learned Chief
Judicial Magistrate, Deoghar vide the Complaint Case No.
876/2019, on the ground of torture for demand of dowry,
which is still pending.
29
2026:JHHC:8031-DB
She has stated that her husband has himself
subjected her to cruelty and his family members have also
tortured her both mentally and physically and the instant
case has been brought by them only for the purpose of
saving their skin from their misdeeds.
Her husband has solemnized his second marriage
and presently he is living with his second wife. This
witness has further stated that all the allegations made by
the petitioner against her are false and baseless and the
instant suit of divorce is liable to be dismissed. She is living
with her old parents and She has no source of income but
in spite of that her husband has not given any
maintenance to her in spite of this fact that an order has
been passed against him in the case filed for getting
maintenance.
Further, in her cross-examination this witness has
stated that her parents had told that the marriage will be
solemnized in the Temple of Baba Basukinath, hence our
marriage was solemnized from there. She had taken
admission in the MBBS course in the year of 2012, in
Janki Medical College, Janakpur, Nepal. She is not
suffering from any disease. Her father has retired from the
post of the Soil Conservation Officer, whereas her one
brother is an Engineer and another is a doctor. Brajesh
Kumar is her brother and he has got divorce from his wife.
30
2026:JHHC:8031-DB
Her husband had filed this case in the Court of Darbhanga
before filing of the case by her on the ground of torture for
demand of dowry. After the incident of assault by her
husband and his family members, she had got her
treatment from her brother and thereafter in Chennai also.
Her surgery was done in the Gleanegal Global, hospital by
Dr. Mira Ragho. She had stayed there only for one day.
Further, she has denied from this suggestion that she has
got her tubectomy without consent of her husband and
further she does not want to deliver child. She has further
denied from this suggestion that she had never allowed her
husband to make physical relation with her and she was
assaulting him with shoes and slippers. She has further
denied from this suggestion that her husband has not
solemnized his second marriage.
15. Besides oral evidence, documentary evidences were
also adduced, which were marked as exhibits.
16. The learned Principal Judge, from the statements of
the witnesses so produced on behalf of the parties, has come
to the conclusion that plaintiff/petitioner has miserably failed
to prove the grounds of alleged cruelty and desertion pleaded
by him in his petition.
17. The appellant has claimed that the respondent was
subjecting him with cruelty and she was always threatening
the appellant to get him assaulted by her boyfriends and
31
2026:JHHC:8031-DB
further, she used to assault the appellant and his parents
also. But, in his entire evidence the appellant has not
disclosed any such specific incident from which it can be even
remotely inferred that the conduct of the respondent was so
cruel that it has become impossible for the appellant to live
with her. All the assertions made by the appellant are quite
general in nature and the appellant (P.W.1) has himself
admitted in para-19 of his cross-examination that he had not
lodged any case in any police station or Court regarding the
alleged incident of assault by his wife to him.
18. From the testimony so recorded of the appellant-
husband, the learned Principal Judge, Family Court has come
to the conclusion that in the instant case, except the vague
and omnibus allegations made by husband against his
respondent-wife, no cogent convincing, clinching evidence, no
concrete documentary evidence has been led to substantiate
the charges of cruelty and desertion. The onus to prove the
grounds taken for divorce squarely rests on the husband
which are required to be discharged by leading a cogent,
tangible and reliable evidence.
19. The learned Family Judge has gone into the
interpretation of the word “cruelty” and “desertion” and
assessing the same from the material available on record as
also the submission made in the pleading, has found that the
element of cruelty and desertion has not been established.
32
2026:JHHC:8031-DB
The said finding of the learned Family Court has been assailed
herein by way of filing the instant appeal.
20. Herein since appellate jurisdiction has been invoked
therefore, before entering into merit of the case, at this
juncture it would be purposeful to discuss the appellate
jurisdiction of the High Court.
It needs to refer herein that under section 7 of the Family
Courts Act, the Family Court shall have and exercise all the
jurisdiction exercisable by any District Court or any Sub-
ordinate Civil Court under any law for the time being in force
in respect of suits and proceedings of the nature which are
described in the explanation to section 7(1).
21. Sub-section (1) to section 19 of the Family Courts Act
provides that an appeal shall lie from every judgment or order
not being an interlocutory order of a Family Court to the High
Court “both on facts and on law”. Therefore, section 19 of the
Family Courts Act is parallel to section 96 of the Code of Civil
Procedure, the scope of which has been dealt with by the
Hon’ble Apex Court in series of judgments.
22. The law is well settled that the High Court in a First
Appeal can examine every question of law and fact which
arises in the facts of the case and has powers to affirm, reverse
or modify the judgment under question. In “Jagdish Singh
v. Madhuri Devi” (2008) 10 SCC 497 the Hon’ble Supreme
Court observed that it is lawful for the High Court acting as
33
2026:JHHC:8031-DB
the First Appellate Court to enter into not only questions of
law but questions of fact as well and the appellate Court
therefore can reappraise, reappreciate and review the entire
evidence and can come to its own conclusion. For ready
reference the relevant paragraph of the said judgment is being
quoted as under:
25. It is no doubt true that the High Court was
exercising power as the 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
rehearing of the main matter and the appellate court
can reappraise, reappreciate and review the entire
evidence–oral as well as documentary–and can come
to its own conclusion.
23. Further, it requires to refer herein that under section
3 of the Indian Evidence Act a fact is said to be proved when
the Court either believes it to exist or considers its existence
so probable that a prudent man under the circumstances
would proceed on the supposition that such fact really exists.
Therefore, the normal rule of preponderance of probability
is the rule which governs the civil proceedings but herein since
grave allegation of extra-marital affair has been alleged
therefore cogent evidence is required to be laid by the
plaintiff/appellant.
24. The expression “preponderance of probability” is not
capable of exact definition nor can there be any strait-jacket
34
2026:JHHC:8031-DB
formula or a weighing machine to find out which side the
balance is tilted. The preponderance of probability would
imply a positive element about possibility of existence of a
fact. This means a higher degree of probability of happening
of something and existence of a fact.
25. In “A. Jayachandra v. Aneel Kaur” (2005) 2 SCC
22 the Hon’ble Apex Court has observed that the concept, a
proof beyond the shadow of doubt, is to be applied to criminal
trials and not to civil matters and certainly not to matters of
such delicate personal relationship as those of husband and
wife. Therefore, the Court has to see what are the probabilities
in the case and legal cruelty has to be found out, not merely
as a matter of fact, but as the effect on the mind of the
complainant spouse caused by the acts or omissions of the
other.
26. Since this Court are exercising the power of appeal
as referred hereinabove and as per the settled position of law
which require the consideration of the appellate Court is that
the order/judgment passed by the appropriate Forum, if
suffers from perversity, the same is to be taken as a ground
for its reversal.
27. It needs to refer herein that 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. The Hon’ble Apex Court in
35
2026:JHHC:8031-DB
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 so 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 in36
2026:JHHC:8031-DBconscious 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.””37
2026:JHHC:8031-DB
28. Thus, from the aforesaid it is evident that if any order
made in conscious violation of pleading and law then it will
come under the purview of perverse order. Further “perverse
verdict” may probably be defined as one that is not only
against the weight of evidence but is altogether against the
evidence.
29. In the backdrop of the aforesaid settled position of
law this Court is now adverting to examine that whether the
prayer of the appellant for dissolution of marriage is fit to be
allowed on the ground of cruelty and desertion alleged to be
committed by the respondent wife.
Issue of cruelty
30. Now this court is adverting to the issue of cruelty. It
needs to refer herein that 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.
31. 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 husband
38
2026:JHHC:8031-DB
and his parents demanded dowry. The Hon’ble Apex Court
emphasized that “cruelty” can have no fixed definition.
32. 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.”
33. 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.”
34. 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.
35. In V. Bhagat vs. D. Bhagat (Mrs.), (1994)1 SCC
337, the wife alleged in her written statement that her
39
2026:JHHC:8031-DB
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”.
36. 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.
37. The Hon’ble Apex Court in Joydeep Majumdar v.
Bharti Jaiswal Majumdar, (2021) 3 SCC 742, has been
pleased to observe that while judging whether the conduct is
cruel or not, what has to be seen is whether that conduct,
which is sustained over a period of time, renders the life of the
spouse so miserable as to make it unreasonable to make one
live with the 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
40
2026:JHHC:8031-DB
ground for divorce.
38. Further in the case of Vishwanath Agrawal v.
Sarla Vishwanath Agrawal, (2012) 7 SCC 288, the Hon’ble
Apex Court has held as follows:–
22. The expression “cruelty” has an inseparable nexus with
human conduct or human behaviour. It is always
dependent upon the social strata or the milieu to which the
parties belong, their ways of life, relationship,
temperaments and emotions that have been conditioned by
their social status.
26. After so stating, this Court observed in Shobha Rani
case about the marked change in life in modern times and
the sea change in matrimonial duties and responsibilities. It
has been observed that : (SCC p. 108, para 5)
“5. … when a spouse makes a complaint about the
treatment of cruelty by the partner in life or relations, the
court should not search for standard in life. A set of facts
stigmatised as cruelty in one case may not be so in another
case. The cruelty alleged may largely depend upon the type
of life the parties are accustomed to or their economic and
social conditions. It may also depend upon their culture and
human values to which they attach importance.”
27. Their Lordships in Shobha Rani case referred to the
observations made in Sheldon v. Sheldon wherein Lord
Denning stated, “the categories of cruelty are not closed”.
Thereafter, the Bench proceeded to state thus: (Shobha
Rani case, SCC p. 109, paras 5-6)
“5. … Each case may be different. We deal with the conduct
of human beings who are not generally similar. Among the
human beings there is no limit to the kind of conduct which
may constitute cruelty. New type of cruelty may crop up in
any case depending upon the human behaviour,
capacity or incapability to tolerate the conduct complained
of. Such is the wonderful (sic) realm of cruelty.
6. These preliminary observations are intended to
emphasise that the court in matrimonial cases is not
41
2026:JHHC:8031-DB
concerned with ideals in family life. The court has only to
understand the spouses concerned as nature made them,
and consider their particular grievance. As Lord
Reid observed in Gollins v. Gollins : (All ER p. 972 G-
H)
‘… In matrimonial affairs we are not dealing with objective
standards, it is not a matrimonial offence to fall below the
standard of the reasonable man (or the reasonable woman).
We are dealing with this man or this woman.'”
39. In the case of Samar Ghosh v. Jaya Ghosh, (2007)
4 SCC 511 it has been held by the Hon’ble Apex Court as
follows: —
99. Human mind is extremely complex and human
behaviour is equally complicated. Similarly human
ingenuity has no bound, therefore, to assimilate the entire
human behaviour in one definition is almost impossible.
What is cruelty in one case may not amount to cruelty in
other case. The concept of cruelty differs from person to
person depending upon his upbringing, level of sensitivity,
educational, family and cultural background, financial
position, social status, customs, traditions, religious beliefs,
human values and their value system.
100. Apart from this, the concept of mental cruelty cannot
remain static; it is bound to change with the passage of
time, impact of modern culture through print and electronic
media and value system, etc. What may be mental cruelty
now may not remain a mental cruelty after a passage of
time or vice versa. There can never be any straitjacket
formula or fixed parameters for determining mental cruelty
in matrimonial matters. The prudent and appropriate way
to adjudicate the case would be to evaluate it on its peculiar
facts and circumstances while taking aforementioned
factors in consideration.
40. Thus, from the aforesaid settled position of law it is
evident that “Cruelty” under matrimonial law consists of
42
2026:JHHC:8031-DBconduct so grave and weighty as to lead one to the conclusion
that one of the spouses cannot reasonably be expected to live
with the other spouse. It must be more serious than the
ordinary wear and tear of married life.
41. Cruelty must be of such a type which will satisfy the
conscience of the Court that the relationship between the
parties has deteriorated to such an extent that it has become
impossible for them to live together without mental agony. The
cruelty practiced may be in many forms and it must be
productive of an apprehension in the mind of the other spouse
that it is dangerous to live with the erring party. Simple
trivialities which can truly be described as a reasonable wear
and tear of married life cannot amount to cruelty. In many
marriages each party can, if it so wills, discover many a cause
for complaint but such grievances arise mostly from
temperamental disharmony. Such disharmony or
incompatibility is not cruelty and will not furnish a cause for
the dissolution of marriage.
42. Herein allegations of cruelty have been specifically
made by plaintiff/appellant wherein it has been stated that
the differences arose between him and respondent (wife) due
to misconduct and misdeed of the respondent as respondent
used to flee from appellant’s house without informing the
appellant or his family members.
43. From the record it appears that both parties are
43
2026:JHHC:8031-DBhighly educated and they are medical practitioners by
profession. The appellant has claimed that the respondent
was subjecting him with cruelty. But, in his entire evidence
the appellant has not disclosed any such specific incident
from which it can be even remotely inferred that the conduct
of the respondent was so cruel that it has become impossible
for the appellant to live with her.
44. However, in the instant case whatever assertions
have been made by the appellant against the respondent are
quite non-specific and of quite omnibus nature and further,
the appellant has not been able to prove the same. Of course,
the appellant has filed a bunch of papers for showing that he
had given an information petition to the Court of the learned
S.D, M, Darbhanga on 06.07.2018 (Ext.5) and further to the
Court of learned C.J.M on 18.02.2019 (Ext.4) but even in
these petitions the appellant has not asserted any such act
which can be said to be so grave as to enable the appellant for
seeking a decree of divorce on the said ground. Further, none
of these documents goes to show that the respondent had
committed such cruelty upon the appellant which has made
it impossible for the petitioner to live with the respondent.
45. As regards the filing of a case by the respondent on
the ground of her torture of demand of dowry is concerned,
mere seeking a legal remedy by the wife against her husband
can’t be termed as cruelty unless it is proved that the said
44
2026:JHHC:8031-DBproceeding was launched maliciously without any reality. The
appellant has further tried to bring on record by filing
documentary evidence that the other family members of the
respondent had also fought some cases against their spouse.
But keeping in view the facts and circumstances of this case,
this Court finds that the conduct of respondent can’t be
decided by the act or history of someone else.
46. Thus, on the basis of the pleading and evidence on
the record, this Court is of the view that the ground of cruelty
has not been substantiated by the appellant and further it
has also not been proved that the extent of cruelty is so much
that it appears absolutely not possible and safe for the
petitioner-husband to live together with respondent-wife and
continue with their married life.
47. Thus, on the basis of the discussion made
hereinabove this Court is of the view that the appellant has
failed to substantiate the commission of alleged cruelty of
respondent upon him and since the learned Family Court
while negating the claim of cruelty has duly appreciated the
evidences brought on record, therefore the finding of the
learned Court on the alleged act of cruelty, is not perverse.
Issue of desertion
48. So far desertion is concerned it needs to refer herein
that the word ‘desertion’ has been given in Explanation to
Section 13 (1) wherein it has been stated that “the expression
45
2026:JHHC:8031-DBdesertion 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, and its grammatical variations and cognate
expressions shall be construed accordingly.”
49. It is pertinent to note that the word ‘desertion’, as has
been defined in Explanation part of Section 13 of the Act, 1955,
means the desertion of the petitioner by the other party to the
marriage without reasonable cause and without the consent or
against the wishes of such party, and includes the willful
neglect of the petitioner by the other party to the marriage, and
its grammatical variations and cognate expressions shall be
construed accordingly.
50. 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.”
51. 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:
46
2026:JHHC:8031-DB
“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.”
52. 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.
53. The offence of desertion is a course of conduct which
exists independently of its duration, but as a ground for
divorce it must exist for a period of at least two years
immediately preceding the presentation of the petition or,
where the offence appears as a cross-charge, of the answer.
54. The offence of desertion is a course of conduct which
exists independently of its duration, but as a ground for
divorce it must exist for a period of at least two years
immediately preceding the presentation of the petition or,
where the offence appears as a cross-charge, of the answer.
55. It is, thus, evident from the aforesaid reference of
47
2026:JHHC:8031-DB
meaning of desertion that the quality of permanence is one of
the essential elements which differentiate desertion from
willful 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.
56. Similarly, two elements are essential so far as the
deserted spouse is concerned: (1) the absence of consent, and
(2) absence of conduct giving reasonable cause to the spouse
leaving the matrimonial home to from the necessary intention
aforesaid.
57. 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 the Court.
58. The law consistently has been laid down by the
Hon’ble Apex Court that desertion means the intentional
abandonment of one spouse by the other without the consent
of the other and without a reasonable cause. The deserted
spouse must prove that there is a factum of separation and
48
2026:JHHC:8031-DB
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.
59. Here in this case, it has been stated by the appellant
that the respondent herself left her matrimonial house but so
far as the not-living of the respondent in the appellant’s house
is concerned, the appellant has himself stated that his wife is
a medical student and in that view of the matter, it seems
quite natural that a lady who was admittedly a student of
medical college cannot be expected to live in her matrimonial
home and cook food in her house during the continuance of
her course. This fact alone is sufficient to demolish the entire
plea of petitioner and it goes to strengthen the assertion of
respondent that her husband and his family members were
pressurizing her to discontinue her study and live in the
petitioner’s house and cook food for them.
60. Here in this case, it has been stated by the appellant
that in the year 2018 the respondent left his house without
his consent and since then she has no relationship with him.
The plaintiff/petitioner in his testimony as PW1 as well as all
his witnesses stated that respondent left her sasural in year
49
2026:JHHC:8031-DB
2018 and since then she never came back.]
61. Per contra, it is the case of respondent, that she had
never left her matrimonial home at her own will rather it was
the petitioner and his family members who were always
subjecting the respondent with cruelty and assaulting and
abusing her for the fulfillment of their illegal demand of dowry,
for which the respondent has already filed a Complaint Case
against the petitioner in the Court of C.J.M., Deoghar.
62. It has further been stated that the respondent/wife
is always ready and willing to live and start her conjugal life
with her husband (petitioner/appellant) as earlier, but it is
the petitioner himself who has deserted his wife.
63. From the impugned order as well as material available
o record, it is evident that admittedly the parties are living
separately from one another since long and it has come on
record from the oral as well as the documentary evidence of the
parties also that there were a series of litigations between the
parties but the petitioner/appellant has not shown anywhere
in his entire evidence that he had ever tried to bring his
respondent/wife back or he had filed any case for Bidagiri of
his wife.
64. Further it has been specifically stated by the
respondent that she was being harassed in her matrimonial
home and she was not kept properly due to which she had to
leave the house of her husband. The factum of making false
50
2026:JHHC:8031-DB
allegations by the petitioner regarding inability of delivering a
child by the respondent also goes to show that the petitioner
wants to get rid from the respondent anyhow by making such
type of baseless allegation. The respondent herself has stated
that she has no medical problem relating to uterus.
65. Thus, from the aforesaid it appears that respondent
wife was compelled to leave her matrimonial wife and she has
not left her matrimonial house on her own will therefore, it is
considered view of this Court that finding of the learned Family
Court on the issue of desertion requires no interference.
66. This Court, based upon the aforesaid discussions is
of considered view that the issue of cruelty and desertion as
has been alleged by the appellant-husband against his wife
could not be proved because no cogent evidence to that effect
has been produced by the appellant and, as such, this Court
has no reason to take different view that has been taken by
the learned Family Court observing that the petitioner has not
been able to prove the willful desertion by the respondent wife
and neither prove that respondent subjected him with cruelty
to the extent required by law.
67. On the perusal of the impugned judgment, it is
considered view of this court that learned Family Court after
due deliberation of factual aspect as well as evidence led by
both the parties has recorded its finding, therefore, the
contention of learned counsel for the appellant that impugned
51
2026:JHHC:8031-DB
judgment is suffering from perversity, is not fit to be accepted,
hence rejected.
68. This Court, on the basis of discussions made
hereinabove, is of the view that the judgment dated
29.07.2024 and Decree dated 09.08.2024 passed by the
learned Principal Judge, Family Court, Deoghar ,whereby and
whereunder the Original Suit No.288 of 2022 filed by the
appellant-husband under Section 13 of the Hindu Marriage
Act, 1955 for a decree of divorce has been dismissed, requires
no interference by this Court.
69. Accordingly, the instant appeal fails and is
dismissed.
70. Pending interlocutory application, if any, also stands
disposed of.
(Sujit Narayan Prasad, J.)
(Sanjay Prasad, J.)
Date : 20/03/2026
/A.F.R.
Birendra
Uploaded on 30.03.2026
52
