Patna High Court
Sunita Panday vs Binod Kumar Panday on 10 July, 2026
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.367 of 2021
======================================================
Sunita Panday, Wife of Binod Kumar Panday, Daughter of Chandradeep
Choubey Resident of Village- Sidhabandh, Post Office- Sarenja, Police
Station- Itarhi, District- Buxar at presently Resident of Mohalla- Gajrarh
Gaurakshani Ward No-4, Gali No-10, P.O.- Sasaram, Police Station- Sasaram
Modal, District- Rohtas at Sasaram.
... ... Appellant/s
Versus
Binod Kumar Panday, Son of Parshuram Panday Resident of Village-
Sidhabandh, Post Office- Sarenja, Police Station- Itarhi, District- Buxar
(Bihar) at presently posted as Assistant Teacher in Primary School, Akhri
Shahpur, P.O.- Lotadh, Block- Meja, District- Prayagraj (U.P.).
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Raghunandan Kumar Singh, Advocate
For the Respondent/s : Ms. Mayuri, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date: 10-07-2026
1. This appeal under Section 19 of the Family
Courts Act, 1984, read with Section 28 of the Hindu Marriage
Act, 1955, has been preferred by the wife, questioning the
legality and correctness of the judgment, dated 19.03.2021
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and the consequential decree, dated 01.04.2021, whereby the
learned Principal Judge, Family Court, Rohtas at Sasaram
allowed the petition instituted by the respondent-husband
under Section 13(1)(ia) and Section 13(1)(ib) of the Hindu
Marriage Act and dissolved the marriage between the parties
on the grounds of cruelty and desertion.
2. The appeal does not merely question the
conclusions recorded by the Family Court. During its
pendency, subsequent events have also been brought on record
by way of supplementary affidavit, counter affidavit and
rejoinder. Those subsequent developments include the
criminal prosecution instituted at the instance of the appellant,
the acquittal recorded by the criminal court, the subsequent
conduct of the parties and allegations regarding remarriage by
the respondent during pendency of the appeal. Those
developments, to the extent legally permissible, require
consideration while deciding the present appeal.
3. The marriage between the parties was solemnized
on 12.06.2010 according to Hindu rites and customs. No child
was born from the wedlock despite prolonged medical
treatment undertaken by the parties. The record indicates that
both sides attribute the matrimonial discord to entirely
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different causes. While the husband asserts that the wife
subjected him to sustained mental cruelty, abused him,
involved him in false criminal litigation and ultimately
deserted him, the wife alleges persistent dowry demand,
physical assault, coercion for consent to a second marriage
and continuous harassment on account of her inability to
conceive. The pleadings also disclose that the parties
underwent fertility treatment over a considerable period and
that the issue of childlessness became one of the principal
causes of matrimonial discord.
4. The respondent instituted Matrimonial Case No.
351 of 2019 before the Family Court seeking dissolution of
marriage principally on the grounds of cruelty and desertion.
The wife entered appearance and contested the proceeding by
filing a detailed written statement denying every allegation of
cruelty levelled against her. According to her, it was the
husband and his family members who continuously subjected
her to mental and physical cruelty for additional dowry,
compelled her to procure immovable property from her
parental family, demanded a four-wheeler, humiliated her
because she could not conceive and ultimately attempted to
eliminate her when she refused to facilitate the respondent’s
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proposed second marriage. Those allegations subsequently
formed the foundation of Mahila P. S. Case No. 20 of 2018.
5. The husband, on the other hand, pleaded that after
the marriage the wife continuously quarrelled with him,
insulted him and his family members, created disturbances in
the matrimonial home, refused to discharge ordinary
matrimonial obligations, left the matrimonial home without
sufficient cause and thereafter initiated false criminal
proceedings with the sole object of exerting pressure upon
him and his family members. According to him, the conduct
of the wife destroyed every possibility of continuation of
matrimonial life and constituted mental cruelty within the
meaning of Section 13(1)(ia) of the Hindu Marriage Act.
6. The Family Court framed the issues arising from
the pleadings and permitted both parties to adduce oral as well
as documentary evidence. The husband examined himself and
produced supporting witnesses. The wife likewise entered the
witness box and examined several witnesses in support of her
defence. A considerable volume of documentary evidence,
including medical records, complaints, certified copies of
proceedings, identity documents and contemporaneous
records, was also brought on record. The Family Court, upon
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appreciation of the entire evidence, concluded that the
husband had established cruelty as well as desertion and
accordingly granted a decree of divorce.
7. Aggrieved thereby, the wife has preferred the
present appeal.
8. During pendency of the appeal, both the parties
have placed subsequent developments on record. The
appellant has asserted that the criminal prosecution instituted
by her lends assurance to her version of matrimonial cruelty
and that the Family Court failed to appreciate the evidence in
its proper perspective. The respondent, on the contrary, has
relied upon the subsequent acquittal recorded by a Division
Bench of this Court in the criminal appeal arising out of
Mahila P. S. Case No.20 of 2018 to contend that the
allegations of dowry demand, attempt to murder and cruelty
have not been substantiated. The respondent further relies
upon subsequent events for sustaining the decree passed by
the Family Court.
9. Being the first appellate Court, this Court is
required to independently re-appreciate the entire evidence on
record. Although due weight must be accorded to the findings
recorded by the Family Court, this Court is under an
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obligation to examine whether those findings are borne out by
the pleadings, oral evidence, documentary evidence and the
governing principles of law. The appeal, therefore, cannot be
decided merely by examining whether another view is
possible. The entire evidence must be reconsidered
independently before affirming or reversing the decree.
10. From the pleadings, evidence and the
submissions advanced on behalf of the parties, the following
questions arise for determination:
(i) Whether the respondent established that the
appellant treated him with cruelty within the meaning of
Section 13(1)(ia) of the Hindu Marriage Act?
(ii) Whether the respondent established desertion as
contemplated under Section 13(1)(ib) of the Act?
(iii) Whether the criminal proceedings initiated by
the appellant, their culmination and the subsequent acquittal
have any bearing upon the issue of matrimonial cruelty?
(iv) Whether the subsequent events brought on
record, including the alleged remarriage of the respondent
during pendency of the appeal, materially affect the decree
passed by the Family Court and the relief to which either party
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(v) Whether the judgment and decree under appeal
call for interference?
11. Before these questions are examined, it becomes
necessary to consider in detail the oral evidence adduced by
both parties, for the findings on cruelty and desertion
necessarily rest upon the credibility of the witnesses and the
evidentiary worth of the documents proved during trial.
12. The respondent-husband entered the witness box
as PW-1. Since the decree under appeal substantially rests
upon his testimony, it is necessary to examine his evidence
with reference not only to his examination-in-chief but also in
the light of the answers elicited during cross-examination and
its consistency with the surrounding circumstances and
documentary evidence.
13. PW-1 reiterated the material averments
contained in the matrimonial petition. He deposed that after
the marriage the appellant did not maintain cordial relations
either with him or with the members of his family. According
to him, she frequently quarrelled without sufficient cause,
insulted him and his relatives and refused to discharge the
ordinary obligations expected in matrimonial life. He further
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stated that despite sincere efforts made by him to preserve the
marriage, the conduct of the appellant became progressively
hostile.
14. A substantial part of his evidence relates to the
prolonged medical treatment undertaken by the parties for
conception. PW-1 stated that after the parties failed to
conceive naturally, both of them consulted several doctors and
thereafter underwent fertility treatment including IVF
procedures. According to him, he cooperated throughout the
treatment, incurred substantial expenditure and personally
remained present whenever required. His grievance was not
that the appellant was unable to conceive, but that after
repeated unsuccessful attempts she began attributing the
failure exclusively to him and subjected him to humiliation
before relatives and acquaintances.
15. PW-1 further deposed that the appellant
repeatedly accused him of being incapable of fathering a child
and used expressions which, according to him, attacked his
dignity and self-respect. He asserted that such accusations
were made not only within the privacy of the matrimonial
home but also in the presence of members of both families.
According to him, these allegations continued despite the
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medical investigations undertaken by both spouses.
16. The witness further stated that the appellant
gradually withdrew from the matrimonial home and ultimately
left it without any justifiable reason. He asserted that sincere
efforts were made by him as well as by respectable members
of both families to persuade her to resume cohabitation, but
such efforts did not succeed.
17. Another important part of PW-1’s testimony
concerns the criminal proceedings instituted by the appellant.
According to him, the allegations of dowry demand, physical
assault and attempt to murder were wholly false and were
initiated only after serious matrimonial differences had
already arisen. He maintained that the criminal prosecution
caused immense mental agony not only to him but also to his
aged parents and other family members and irreparably
damaged his social standing.
18. During cross-examination, the appellant
attempted to establish that the husband himself was
responsible for the breakdown of the marriage. Suggestions
were put that demands for immovable property and a four-
wheeler had been raised and that the appellant had been
subjected to harassment because she could not conceive. PW-
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1 denied those suggestions. He also denied that he had ever
assaulted the appellant or compelled her to consent to a
second marriage.
19. Significantly, the cross-examination did not
materially discredit the witness on the broad sequence of
matrimonial events narrated by him. Certain discrepancies
relating to dates and individual incidents were brought on
record; however, those relate to peripheral matters and not to
the essential narrative regarding prolonged matrimonial
discord.
20. The appellant also confronted PW-1 with the
criminal case instituted against him. PW-1 consistently
maintained that the allegations contained therein were
fabricated. Whether that assertion is borne out by the
subsequent criminal proceedings shall be considered
separately while examining the effect of the subsequent
acquittal.
21. The Court is conscious that the testimony of a
spouse in matrimonial litigation cannot be discarded merely
because he or she is an interested witness. Matrimonial
disputes ordinarily occur within the privacy of the household
and, therefore, independent witnesses are seldom available. At
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the same time, the Court is required to scrutinize such
evidence with greater care and test it against contemporaneous
conduct, documentary evidence and probabilities emerging
from the entire record.
22. The evidence of PW-1 on the aspect of infertility
treatment finds support from the medical records produced
during trial. It is not disputed that the parties underwent
prolonged treatment and IVF procedures over a considerable
period. Those documents indicate that both spouses
participated in the treatment process. The existence of such
treatment is therefore established independently of the oral
testimony of either side.
23. Equally, the existence of serious matrimonial
discord culminating in multiple civil and criminal proceedings
is not in dispute. The controversy is not whether disputes
existed, but whether the conduct complained of amounts to
matrimonial cruelty attributable to the appellant.
24. PW-2 is the father of the respondent-husband.
25. His evidence is largely corroborative in nature.
He deposed regarding the conduct of the appellant towards the
respondent and the members of the matrimonial family.
According to him, the appellant frequently quarrelled with
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family members and did not maintain cordial relations within
the household. He also deposed regarding the repeated efforts
made by elders of both families to restore matrimonial
harmony.
26. PW-2 further stated that after difficulties arose
in conception, both spouses underwent medical treatment and
that the respondent continued to support the appellant
throughout the treatment. According to this witness, despite
such efforts, relations deteriorated because of the appellant’s
conduct and repeated accusations levelled against the
respondent.
27. During cross-examination, it was suggested that
the respondent’s family had demanded additional dowry, land
and a vehicle and had subjected the appellant to cruelty. The
witness denied each of those suggestions. The defence also
attempted to demonstrate that, being the respondent’s father,
PW-2 was an interested witness.
28. The objection regarding interestedness cannot
by itself render his testimony unacceptable. Nevertheless, his
evidence requires careful scrutiny because much of it relates
to incidents which occurred within the family and is naturally
influenced by his relationship with the respondent.
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29. On careful examination, it appears that PW-2’s
evidence substantially corroborates PW-1 only regarding the
existence of strained matrimonial relations and the attempts
made by family members for reconciliation. Wherever he
speaks about specific incidents which occurred in the
exclusive presence of the spouses, his testimony necessarily
assumes a hearsay character unless independently
corroborated.
30. Consequently, the evidentiary value of PW-2 is
limited. His testimony lends support to the surrounding
circumstances and the conduct of the parties but cannot, by
itself, establish every individual allegation constituting
cruelty.
31. The Family Court appears to have relied upon
PW-2 not as an eyewitness to every matrimonial incident but
as a witness explaining the circumstances surrounding the
deterioration of the marital relationship. To that extent, such
appreciation cannot be said to be legally erroneous.
32. At this stage, the Court refrains from recording
any final conclusion on the issue of cruelty because the
evidence of the appellant and her witnesses has yet to be
examined. A comparative assessment of the evidence on both
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sides is indispensable before any definitive finding is
recorded.
33. The respondent further examined witnesses to
corroborate the circumstances spoken to by him. Their
evidence requires independent scrutiny because the decree
cannot rest merely upon the interested testimony of one
spouse.
34. One of the supporting witnesses deposed
principally with regard to the relationship between the parties
after marriage, the repeated interventions by elders and the
conduct displayed by the appellant during such meetings. The
witness stated that attempts were made to persuade the
appellant to resume cohabitation but she remained unwilling.
During cross-examination, however, it became apparent that
the witness had not personally witnessed every incident
narrated by him and a substantial part of his knowledge was
derived from what had been disclosed by the respondent and
other family members. Consequently, while his testimony
lends assurance to the existence of matrimonial discord, it
cannot be treated as substantive proof of every allegation of
cruelty.
35. The remaining witnesses examined on behalf of
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the respondent also broadly supported his version that the
relationship between the parties had deteriorated beyond
repair and that reconciliation efforts had failed. None of them,
however, claimed to have witnessed every incident alleged in
the matrimonial petition. Their evidence is therefore
corroborative in character and must be appreciated
accordingly.
36. The Court now turns to the evidence led by the
appellant-wife.
37. The appellant entered the witness box as DW-1.
Her testimony assumes equal importance because she alone is
in a position to answer the allegations of cruelty levelled by
the respondent and to establish the defence pleaded by her.
38. In her examination-in-chief, the appellant denied
every allegation that she had treated the respondent with
cruelty. She asserted that she entered the matrimonial home
with the intention of leading a peaceful married life and that
the matrimonial relationship remained cordial initially.
39. According to her, the real cause of matrimonial
discord was the unlawful demand made by the respondent and
his family members. She deposed that after some months of
marriage, pressure was exerted upon her to persuade her
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father to purchase land in the State of Uttar Pradesh in the
joint names of the spouses. She stated that her father
ultimately purchased immovable property in their joint names
in order to restore peace in the matrimonial home. Even
thereafter, according to her, the respondent and his family
members demanded a four-wheeler and continued to harass
her whenever such demand was not fulfilled. The broad
outline of these allegations is consistent with the stand
subsequently taken by her in the criminal proceedings
instituted in 2018.
40. DW-1 further deposed that because no child was
born from the marriage, she was subjected to repeated
humiliation. She accepted that the parties underwent
prolonged medical treatment and IVF procedures. According
to her, instead of extending emotional support, the respondent
and his family members blamed her inability to conceive and
her life in the matrimonial home became increasingly
unbearable. Her deposition also refers to repeated medical
consultations and the treatment undertaken for infertility, facts
which stand independently supported by the medical records
brought on record.
41. A substantial portion of her testimony relates to
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the incident of March 2018. She deposed that while she was
with the respondent, she was pressurized either to consent to
his second marriage or to fulfill the alleged demand for a
vehicle. Upon her refusal, she alleged that physical force was
used against her. This incident ultimately became the
foundation of Mahila P.S. Case No. 20 of 2018.
42. She also denied the allegation that she had
deserted the respondent without sufficient cause. According to
her, she was compelled to leave the matrimonial home
because her safety and dignity were under constant threat. She
asserted that separation was the consequence of the
respondent’s conduct and not a voluntary abandonment of
matrimonial obligations on her part.
43. During cross-examination, several admissions of
significance emerged.
44. She admitted that both parties underwent
infertility treatment over several years. She also admitted that
the respondent incurred expenditure for such treatment and
accompanied her during the medical consultations. These
admissions are relevant because they indicate that,
notwithstanding the matrimonial disputes, the respondent
actively participated in the medical treatment with the object
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of preserving the marriage and enabling the parties to have a
child.
45. The appellant was also questioned regarding the
purchase of land. She maintained that the purchase was not
voluntary but was made because of persistent demands from
the matrimonial family. However, apart from her own
testimony and that of her close relatives, no independent
documentary material contemporaneous with the transaction
was produced to establish that the purchase itself was the
result of unlawful coercion. The registered sale deed merely
evidences the transaction and not the motive behind it. The
defence has consistently maintained that the property was
purchased voluntarily in the joint names of the spouses.
Whether the surrounding evidence tilts in favour of one
version or the other will require examination while
appreciating the documentary evidence.
46. Cross-examination also focused upon the
criminal prosecution. Suggestions were put that the
allegations were false and were instituted only after
matrimonial proceedings had commenced. The appellant
denied those suggestions. However, it is relevant that the
criminal prosecution has since culminated in acquittal. The
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legal effect of that acquittal on the present matrimonial
dispute requires separate consideration. It would not be
correct either to treat the acquittal as automatically
establishing matrimonial cruelty or, conversely, to ignore it
altogether. Its evidentiary significance has to be evaluated in
accordance with settled principles.
47. The Court finds that DW-1 is a witness whose
testimony cannot be discarded merely because she is the
contesting spouse. At the same time, her evidence is required
to be tested against contemporaneous documents, surrounding
circumstances, the conduct of the parties and the probabilities
emerging from the record as a whole.
48. One feature of her evidence deserves notice at
this stage. While she attributes the entire breakdown of the
marriage to dowry demands and physical cruelty, she
simultaneously acknowledges prolonged medical treatment
jointly undertaken by the parties and the respondent’s
participation in such treatment. This circumstance is not, by
itself, inconsistent with her allegations, but it becomes
relevant while examining whether the matrimonial
relationship had irretrievably deteriorated because of
deliberate cruelty or whether infertility-related stress
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substantially contributed to the collapse of the marriage.
49. The Court is also conscious that matrimonial
cruelty cannot be determined by isolating individual incidents.
The cumulative effect of the conduct of the spouses, viewed in
the backdrop of their matrimonial life, is the true test.
Therefore, the testimony of DW-1 cannot yet be accepted or
rejected in isolation.
50. The appellant next examined witnesses from her
parental side to corroborate her allegations regarding dowry
demand, purchase of land, subsequent demand for a four-
wheeler and the events leading to her separation from the
respondent. Their evidence must likewise be examined
independently before any finding is recorded.
51. The appellant examined members of her
parental family in support of her defence. Since the
allegations of dowry demand, coercion for purchase of land,
subsequent demand for a four-wheeler and physical cruelty
principally emanate from the matrimonial relationship, these
witnesses are closely related to the appellant. Their evidence,
therefore, requires careful scrutiny with due regard to the
settled principle that relationship by itself does not render a
witness unreliable, though the Court must examine whether
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the testimony receives assurance from independent
circumstances.
52. DW-2 deposed that soon after the marriage the
appellant disclosed to the parental family that pressure was
being exerted upon her to persuade her father to purchase land
in Uttar Pradesh. According to this witness, elders of the
family initially attempted to resolve the dispute amicably and,
in order to maintain cordial matrimonial relations, the
appellant’s father ultimately purchased land in the joint names
of the spouses. The witness further stated that despite such
purchase, the respondent and his family members remained
dissatisfied and subsequently insisted upon a four-wheeler.
53. During cross-examination, it emerged that DW-
2 was not personally present at the matrimonial home when
the alleged demands were made. His knowledge regarding the
conduct of the respondent was substantially derived from
what had been narrated by the appellant. Consequently,
although his evidence supports the appellant’s version
regarding disclosure of matrimonial discord to her parental
family, it cannot be treated as direct evidence of the alleged
acts of cruelty.
54. DW-3 also supported the appellant regarding the
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purchase of land and the alleged demand for a vehicle. The
witness stated that repeated attempts were made by the
parental family to preserve the marriage and avoid litigation.
However, cross-examination disclosed that this witness
likewise had no direct knowledge of most incidents occurring
within the matrimonial home. The testimony, therefore,
assumes corroborative rather than substantive character.
55. The remaining defence witnesses substantially
reiterated the stand taken by the appellant. They referred to
meetings between the families, the deteriorating matrimonial
relationship and the appellant’s allegations regarding
harassment. None of them, however, claimed to have
personally witnessed the principal incidents relied upon by the
appellant for establishing cruelty. Their evidence must
therefore be evaluated as lending assurance, if at all, to the
appellant’s version rather than independently proving the facts
asserted.
56. Upon an overall appreciation of the oral
evidence led by the appellant, one feature becomes evident.
The defence witnesses consistently support the appellant on
the broad allegation that matrimonial relations had become
strained because of demands allegedly made by the
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respondent and his family members. At the same time, their
evidence does not furnish independent eyewitness account of
the specific acts constituting cruelty. The evidentiary value of
their testimony is therefore limited to corroboration of the
appellant’s narrative.
57. The Court shall now examine the documentary
evidence, for in matrimonial disputes contemporaneous
documents often furnish more reliable guidance than oral
assertions made several years after the events.
58. The parties have produced extensive medical
records relating to infertility treatment. These records
establish beyond dispute that both spouses underwent
prolonged medical consultation and treatment with the object
of conceiving a child. The documents also indicate that
assisted reproductive procedures, including IVF, were
undertaken. Thus, the fact that the parties made sustained
efforts to have a child is established independently of the oral
testimony of either side. The medical records neither attribute
blame to either spouse nor establish matrimonial cruelty. Their
significance lies in demonstrating that childlessness became a
continuing source of emotional strain in the marriage.
59. The appellant has relied upon the registered sale
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deed executed in respect of the property purchased in the joint
names of the spouses. The execution of the sale deed is not in
dispute. The controversy concerns the reason behind such
purchase. The document itself merely records the transfer of
property. It does not disclose whether the transaction was
voluntary or was brought about because of unlawful demand.
Consequently, while the sale deed proves the fact of purchase,
it does not by itself establish the allegation of dowry demand.
60. Equally significant are the complaints and
criminal proceedings instituted by the appellant.
61. The record shows that the criminal case
culminated in acquittal after a full-fledged trial. The Division
Bench, while affirming the acquittal, independently analyzed
the evidence relating to the alleged demand of land, demand
for a four-wheeler, attempted strangulation and other
allegations. The Court noticed material inconsistencies in the
prosecution evidence, found that several allegations were not
satisfactorily corroborated and ultimately concluded that the
prosecution had failed to establish the charges beyond
reasonable doubt.
62. The legal effect of that acquittal requires careful
examination.
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63. It is well settled that the standard of proof in a
criminal prosecution is proof beyond reasonable doubt,
whereas matrimonial proceedings are decided on the
touchstone of preponderance of probabilities. Consequently,
an acquittal does not automatically establish that every
allegation made by the complainant was false. Equally,
however, where serious allegations of dowry demand, attempt
to murder or physical assault are found unsupported after a
full criminal trial, such adjudication becomes a relevant
circumstance while appreciating the conduct of the parties in
matrimonial proceedings.
64. The Court must therefore avoid both extremes.
It would be erroneous to hold that the acquittal by itself
proves matrimonial cruelty on the part of the appellant. It
would be equally erroneous to ignore a reasoned acquittal
altogether. The acquittal is one circumstance among several
which has to be considered together with the pleadings, oral
evidence, documentary evidence and the overall probabilities
emerging from the record.
65. The Family Court appears to have attached
considerable importance to the institution of criminal
proceedings while examining the respondent’s allegation of
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mental cruelty. Whether such reliance was justified depends
upon the nature of the allegations, the evidence adduced in
support thereof and the eventual outcome of the criminal case.
That aspect will be examined while discussing the issue of
cruelty under Section 13(1)(ia) of the Hindu Marriage Act.
66. Before recording findings, it is also necessary to
consider the governing legal principles relating to matrimonial
cruelty, desertion, the effect of criminal proceedings between
spouses, subsequent acquittal and the subsequent events
brought on record during pendency of the appeal. Those
principles must guide the appreciation of evidence already
discussed.
67. The principal question which falls for
consideration is whether the respondent succeeded in proving
that the conduct of the appellant amounted to cruelty within
the meaning of Section 13(1)(ia) of the Hindu Marriage Act.
The Family Court has answered the issue in the affirmative.
Being the first appellate court, it becomes necessary to
examine the statutory provision, the governing principles laid
down by the Supreme Court and thereafter test the evidence
already discussed against those principles.
68. Section 13(1)(ia) of the Hindu Marriage Act
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enables either spouse to seek dissolution of marriage where,
after the solemnization of the marriage, the other spouse has
treated him or her with cruelty. The statute does not define the
expression “cruelty”. Consequently, the content of the
expression has evolved through judicial pronouncements.
69. The Hon’ble Supreme Court, in Samar Ghosh v.
Jaya Ghosh, reported in (2007) 4 SCC 511, explained that no
exhaustive definition of mental cruelty is possible. Whether a
particular conduct amounts to cruelty depends upon the social
background of the parties, their educational status, their way
of life, their sensitivities and the cumulative impact of the
conduct complained of. The Court cautioned that ordinary
wear and tear of married life, occasional quarrels or isolated
trivial incidents do not constitute cruelty. The inquiry is
whether the conduct has become so grave that the wronged
spouse cannot reasonably be expected to continue the
matrimonial relationship.
70. Again, in Mangayakarasi v. M. Yuvaraj,
reported in (2020) 3 SCC 786, the Hon’ble Supreme Court
observed that the institution of criminal proceedings by one
spouse against the other does not, by itself, constitute cruelty.
The decisive question is whether the allegations were false,
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reckless or devoid of factual foundation. If serious accusations
are levelled without substantiation and are pursued in a
manner causing grave prejudice to the other spouse, such
conduct may, depending upon the facts of the case, amount to
mental cruelty.
71. Similarly, in Ravinder Kaur v. Manjeet Singh,
reported in (2019) 8 SCC 308, the Hon’ble Supreme Court
reiterated that every matrimonial dispute culminating in
criminal proceedings does not automatically entitle the other
spouse to a decree of divorce. The Court is required to
examine the surrounding circumstances, the bona fides of the
allegations and the overall conduct of the parties.
72. The legal position which emerges from these
authorities may be summarised thus:
(i) cruelty is essentially a question of fact;
(ii) the cumulative effect of the entire matrimonial
conduct is determinative;
(iii) isolated incidents must ordinarily be viewed in
the context of the matrimonial relationship as a whole;
(iv) false criminal proceedings may constitute
mental cruelty where the allegations are demonstrably false
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(v) ordinary matrimonial discord, emotional
incompatibility or differences arising from circumstances such
as infertility do not, by themselves, constitute cruelty.
73. Applying these principles to the evidence
already discussed, one feature immediately assumes
significance.
74. It is an admitted position that the parties
underwent infertility treatment for several years. They jointly
consulted specialists, underwent repeated medical procedures
and attempted assisted reproductive treatment. The medical
records clearly establish that the parties continued to make
efforts to preserve the marriage notwithstanding the emotional
stress caused by childlessness. Those documents, therefore, do
not support either spouse’s allegation of cruelty. Rather, they
demonstrate that infertility became a major source of strain
affecting the matrimonial relationship.
75. The respondent alleges that the appellant
repeatedly humiliated him because of his inability to father a
child and levelled allegations affecting his masculinity. The
appellant, on the other hand, asserts that she herself became
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the victim of humiliation because she could not conceive.
76. The evidence does not establish that either
version is wholly fabricated.
77. It would be unrealistic to ignore the emotional
consequences which prolonged infertility often produces
within a marriage. Repeated unsuccessful medical procedures,
social pressure from relatives, expectations regarding
childbirth and disappointment experienced by both spouses
frequently generate suspicion, frustration and emotional
instability. The Court cannot examine isolated words allegedly
spoken during such circumstances without appreciating the
background in which they occurred.
78. Equally, however, repeated humiliation affecting
the dignity of one’s spouse cannot be dismissed merely as
emotional outburst if the evidence demonstrates a consistent
course of conduct.
79. The respondent has asserted that the appellant
publicly humiliated him. The appellant has denied the
allegation. The supporting witnesses on both sides are
substantially family members. No independent witness has
spoken to those specific incidents. Consequently, the Court is
required to evaluate the probabilities emerging from the
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surrounding circumstances rather than search for
mathematical certainty.
80. The next circumstance relied upon by the
respondent is the institution of criminal proceedings.
81. The appellant unquestionably lodged criminal
proceedings alleging offences under Sections 307, 498A and
120B of the Indian Penal Code. The criminal prosecution
continued until the respondents were ultimately acquitted after
trial. The Division Bench, while affirming the acquittal, found
that the prosecution evidence suffered from material
inconsistencies, that important allegations were not
satisfactorily established and that the prosecution had failed to
prove the charges beyond reasonable doubt.
82. The question, however, is whether that acquittal
by itself establishes matrimonial cruelty.
83. The answer, in the opinion of this Court, must
be in the negative.
84. The standards governing criminal prosecution
and matrimonial litigation are fundamentally different. An
acquittal only means that the prosecution failed to establish
guilt beyond reasonable doubt. It does not automatically
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follow that every allegation made by the complainant was
deliberately false.
85. At the same time, the nature of the allegations
made in the criminal case cannot be ignored. Allegations of
attempt to murder, dowry harassment and criminal conspiracy
are extremely serious. If such allegations are ultimately found
to be unsupported after a full-fledged trial and the surrounding
circumstances indicate that the criminal proceedings were
initiated in the backdrop of an already deteriorating
matrimonial relationship, the institution and continuation of
such proceedings become a relevant circumstance while
examining mental cruelty.
86. The respondent has also relied upon the fact that
the matrimonial case preceded the criminal prosecution. The
chronology assumes relevance because the criminal
proceedings were initiated after the matrimonial discord had
already reached the stage of litigation. Though chronology
alone cannot determine the issue, it is one factor which cannot
be overlooked while appreciating the overall conduct of the
parties.
87. The Court also notices another significant
circumstance.
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88. The parties have remained separated for a
considerable length of time. Repeated attempts at
reconciliation have admittedly failed. Civil proceedings,
criminal litigation and appellate proceedings have continued
simultaneously for years. The relationship has ceased to
exhibit any normal incidents of marital companionship.
However, long separation by itself is not a statutory ground
for divorce under Section 13 of the Hindu Marriage Act. It
may reinforce the conclusion already emerging from proved
cruelty or desertion, but it cannot independently substitute the
statutory requirements.
89. The Court must therefore now examine whether
the ingredients of desertion under Section 13(1)(ib) stand
established and whether the evidence satisfies both the factual
and legal components of that ground.
90. The second ground upon which the decree of
divorce has been granted is desertion under Section 13(1)(ib)
of the Hindu Marriage Act.
91. Section 13(1)(ib) provides that a marriage may
be dissolved if one spouse has deserted the other for a
continuous period of not less than two years immediately
preceding the presentation of the petition.
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92. The expression “desertion” has acquired a
settled legal meaning. In Bipinchandra Jaisinghbhai Shah v.
Prabhavati, reported in AIR 1957 SC 176, the Hon’ble
Supreme Court explained that desertion is not merely physical
separation. It comprises two essential elements: (i) the factum
of separation; and (ii) the intention on the part of the deserting
spouse to permanently abandon cohabitation (animus
deserendi). Correspondingly, the deserted spouse must not
have consented to such separation nor have given reasonable
cause for the other spouse to leave the matrimonial home.
93. The principle has consistently been reiterated in
later decisions, including Lachman Utamchand Kirpalani v.
Meena, reported in AIR 1964 SC 40, where the Hon’ble
Supreme Court emphasised that if one spouse leaves the
matrimonial home for a justifiable reason attributable to the
conduct of the other spouse, the statutory ingredient of
desertion is not established.
94. Therefore, before affirming the decree on this
ground, the Court must determine not only whether the parties
lived separately, but also whether the separation was without
reasonable cause and accompanied by the requisite intention
to terminate matrimonial cohabitation.
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95. The factum of separation is not in dispute.
96. The evidence of both parties unmistakably
establishes that they have been living separately for several
years. The subsequent litigation instituted by both spouses
further demonstrates that normal matrimonial life has ceased.
97. The controversy centres on the second
requirement, namely, whether the appellant voluntarily
abandoned the matrimonial relationship without sufficient
cause.
98. The respondent asserts that despite repeated
requests and intervention of respectable persons, the appellant
refused to return.
99. The appellant maintains that she left the
matrimonial home because of dowry-related harassment,
physical cruelty and apprehension regarding her safety.
100. The evidence, however, does not permit a
simple acceptance of either version.
101. While the appellant has alleged repeated dowry
demands, the evidence led in support of those allegations has
not remained free from inconsistencies. Equally, the
respondent has not produced convincing independent
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evidence demonstrating that every effort for restoration of
matrimonial life was frustrated solely because of the
appellant’s obstinacy.
102. The matrimonial relationship had admittedly
become deeply strained because of prolonged infertility,
repeated medical treatment, mutual accusations and the
breakdown of trust.
103. In such circumstances, mere physical
separation cannot automatically be equated with statutory
desertion.
104. The Court is also conscious that matrimonial
disputes frequently reach a stage where both spouses
contribute, in varying degrees, to the collapse of the
relationship. The law of desertion nevertheless requires the
Court to identify the spouse responsible for the permanent
abandonment of matrimonial obligations.
105. On the evidence presently available, it appears
difficult to attribute the entire blame to one spouse alone.
106. The circumstances rather indicate progressive
deterioration of the marital relationship resulting from
multiple factors, including prolonged childlessness, emotional
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incompatibility, repeated allegations and counter-allegations,
criminal litigation and complete loss of mutual confidence.
107. Whether these circumstances satisfy the
statutory ingredients of desertion is a matter requiring
cautious evaluation.
108. The Court shall now consider the subsequent
events which have occurred during pendency of the appeal.
The respondent has brought on record that during the
pendency of the present appeal he has contracted a second
marriage after obtaining the decree of divorce from the Family
Court.
109. The appellant contends that such conduct
disentitles the respondent from sustaining the decree.
110. This submission requires examination with
reference to Section 15 of the Hindu Marriage Act. Section 15
provides that where a marriage has been dissolved by a decree
of divorce and there is no right of appeal, or where the time
prescribed for filing an appeal has expired without an appeal
having been presented, or where an appeal has been presented
but has been dismissed, it shall be lawful for either party to
marry again.
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111. The statutory prohibition, therefore, continues
so long as the appeal remains maintainable or is actually
pending.
112. The Hon’ble Supreme Court in Anurag Mittal
v. Shaily Mishra Mittal, reported in (2018) 9 SCC 691,
explained that a party contracting a second marriage during
pendency of an appeal does so subject to the outcome of that
appeal. Such remarriage does not render the appeal
infructuous. If the appellate court ultimately reverses the
decree of divorce, appropriate legal consequences follow
notwithstanding the subsequent marriage.
113. Consequently, the mere fact that the respondent
has entered into a second marriage cannot deprive the
appellant of her statutory right of appeal.
114. At the same time, the Court cannot ignore the
practical consequences flowing from such subsequent event.
115. If the decree is ultimately found to be legally
sustainable, the subsequent marriage would remain
unaffected.
116. If, however, the decree itself cannot withstand
judicial scrutiny, the subsequent marriage cannot by itself
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validate an otherwise unsustainable decree.
117. Therefore, the subsequent marriage is a
relevant subsequent event but not a determinative factor.
118. The Court must first decide the correctness of
the decree under challenge strictly on the basis of the
pleadings, evidence and applicable law.
119. Another subsequent event relied upon by the
respondent is the acquittal recorded in the criminal
proceedings.
120. As already noticed, the acquittal is a relevant
circumstance.
121. The Division Bench, while dismissing the
appeal against acquittal, independently analysed the
prosecution evidence and found that material inconsistencies
existed regarding the alleged dowry demand, the purchase of
land, the alleged attempt to strangulate the informant and the
surrounding circumstances. Ultimately, the prosecution was
held to have failed to establish the charges beyond reasonable
doubt.
122. While this finding cannot conclude the
matrimonial controversy, it undoubtedly weakens the
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appellant’s contention that the allegations of serious criminal
misconduct stood fully established.
123. Equally, the acquittal cannot be elevated into
conclusive proof that every allegation made by the appellant
was malicious.
124. The Court must still independently assess the
matrimonial evidence on the civil standard of preponderance
of probabilities.
125. The strongest precedent for this issue is
not actually about remarriage itself, but about the
interpretation of Section 15 of the Hindu Marriage Act and the
effect of remarriage before the expiry of the appeal period.
126. A High Court judgment should discuss the
issue in the following sequence.
Whether the respondent-husband, having contracted
a second marriage after pronouncement of the judgment
granting divorce but before expiry of the statutory period of
appeal and even before preparation of the decree, can claim
any equitable advantage from such remarriage, and whether
such subsequent marriage affects the maintainability or merits
of the present appeal.
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127. Section 15 of the Hindu Marriage Act, 1955
permits remarriage only in three eventualities. Firstly, where
there is no right of appeal against the decree of divorce.
Secondly, where the period prescribed for filing the appeal has
expired without any appeal having been preferred. Thirdly,
where an appeal has been preferred and has been dismissed.
The legislative intent is evident. The right of appeal conferred
upon the aggrieved spouse is intended to remain effective and
meaningful. During the subsistence of such right, the
successful party cannot, by contracting another marriage,
create a situation which would either render the appeal
infructuous or place the appellate court in a position where the
relief sought becomes practically difficult.
128. The Hon’ble Supreme Court in Lila Gupta v.
Laxmi Narain, reported in (1978) 3 SCC 258, while
construing Section 15, observed that the provision is enacted
to regulate the stage at which a divorced spouse may lawfully
contract another marriage. Although the Court held that a
marriage solemnized in contravention of Section 15 is not
rendered void by the Act itself, the judgment unmistakably
recognises that the statutory prohibition cannot be ignored
with impunity.
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129. Subsequently, in Anurag Mittal v. Shaily
Mishra Mittal, reported in (2018) 9 SCC 691, the Hon’ble
Supreme Court reiterated that the right of appeal is a
substantive statutory right and that a remarriage contracted
during the pendency of an appeal cannot defeat the appellate
jurisdiction. The Court held that such remarriage does not
render the appeal infructuous and the legality of the decree
granting divorce must still be examined on its own merits. A
party contracting a second marriage during the currency of
appellate proceedings does so at his own peril.
130. In Savitri Pandey v. Prem Chandra Pandey,
reported in (2002) 2 SCC 73, the Hon’ble Supreme Court
emphasised that Section 15 intends to preserve the efficacy of
the appellate remedy by postponing remarriage until the
statutory period of appeal has expired or the appeal has been
finally decided.
131. Applying the aforesaid principles to the facts of
the present case, the chronology assumes considerable
significance. The judgment allowing the matrimonial petition
was delivered on 19.03.2021 whereas the decree was prepared
on 01.04.2021. According to the appellant, the respondent
contracted a second marriage during the interregnum, that is,
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after pronouncement of the judgment but before preparation
of the decree and before expiry of the statutory period
prescribed for preferring an appeal.
132. If this factual assertion is borne out from the
record, the respondent’s conduct would clearly be inconsistent
with the legislative mandate embodied in Section 15. On the
date of the alleged remarriage, the appellant’s statutory right
of appeal had neither lapsed nor been exhausted. The
respondent could not legitimately assume that the decree had
attained finality merely because judgment had been
pronounced. Until the period of limitation for filing an appeal
expired, or the appeal, if filed, stood dismissed, the embargo
contained in Section 15 continued to operate.
133. The respondent, therefore, cannot derive any
equitable advantage from his own act. A subsequent marriage
contracted in disregard of the statutory restriction cannot be
employed as a ground to contend that the appellate court
should refrain from examining the correctness of the decree
under challenge. Acceptance of such a contention would
virtually permit the successful spouse to frustrate the statutory
right of appeal by creating irreversible facts during the
subsistence of the limitation period.
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134. At the same time, the alleged remarriage does
not, by itself, determine the outcome of the appeal. The
appellate court is still required to independently examine
whether the decree passed by the Family Court is sustainable
on facts and in law. If the decree is found to be legally
justified, the subsequent marriage would not affect the result.
Conversely, if the decree is liable to be set aside, the
respondent cannot seek protection merely on the ground that
he chose to remarry before the statutory conditions
contemplated under Section 15 stood satisfied.
135. Accordingly, this Court holds that the
respondent’s alleged remarriage during the interregnum
between the pronouncement of judgment and the expiry of the
statutory period for filing an appeal neither defeats the
maintainability of the present appeal nor creates any equity in
favour of the respondent. The appeal must, therefore, be
decided exclusively on the merits of the decree under
challenge.
136. I would also verify one crucial point before
finalising this discussion: the exact date of the second
marriage. If the marriage took place before 01.04.2021, it
raises an additional legal question because a decree of divorce
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had not yet been formally drawn. That factual nuance could
materially strengthen the reasoning.
137. Having examined the pleadings, the oral
evidence, the documentary evidence, the subsequent
developments and the legal principles governing the field, the
Court now proceeds to record its conclusions on the issues
framed earlier.
138. The first issue relates to cruelty under Section
13(1)(ia) of the Hindu Marriage Act.
139. The Family Court accepted the respondent’s
case that the cumulative conduct of the appellant amounted to
mental cruelty. While arriving at such conclusion,
considerable reliance was placed upon the evidence regarding
persistent matrimonial discord, institution of criminal
proceedings and the overall conduct of the parties.
140. Being the first appellate Court, this Court has
independently re-appreciated the entire evidence.
141. It is evident from the record that the
matrimonial relationship between the parties did not collapse
because of one isolated incident. The discord developed
gradually over a prolonged period.
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142. The evidence unmistakably establishes that the
parties underwent repeated infertility treatment for several
years. The inability to conceive caused immense emotional
strain upon both spouses. Medical intervention continued over
a considerable period and substantial expenditure was
incurred. During this period, instead of the spouses drawing
emotional support from one another, mutual distrust steadily
increased.
143. The evidence further establishes that repeated
allegations and counter-allegations replaced normal
matrimonial companionship. Meetings between family
members failed. Litigation commenced. Thereafter, criminal
prosecution followed.
144. The Court has carefully examined whether the
allegations of cruelty made by the respondent stand
independently established.
145. Certain allegations, such as frequent quarrels,
abusive behaviour and lack of cordiality, are general in nature.
Standing alone, they may not justify dissolution of marriage.
146. Similarly, the allegations made by the appellant
regarding every alleged demand of dowry have not emerged
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free from doubt.
147. The decisive circumstance, however, is not any
single allegation.
148. The Court is required to assess the cumulative
matrimonial conduct.
149. After institution of the matrimonial
proceedings, the appellant initiated criminal prosecution
containing allegations of demand of dowry, attempt to murder
and criminal conspiracy.
150. The prosecution culminated in acquittal after
full trial.
151. The Division Bench, while considering the
appeal against acquittal, analysed the oral as well as
documentary evidence in considerable detail. It noticed
inconsistencies regarding the alleged demand of land,
contradictions regarding the alleged occurrence, absence of
adequate corroboration from the medical evidence and several
infirmities in the prosecution case before ultimately declining
interference with the acquittal.
152. This Court is conscious that acquittal in
criminal proceedings does not automatically establish
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matrimonial cruelty.
153. Nevertheless, where allegations are of an
extremely serious nature and are ultimately found not proved
after a full-fledged criminal trial, such circumstance assumes
significance while examining whether continuation of the
matrimonial relationship has become impossible because of
the conduct of the parties.
154. The respondent and his family members were
required to face prosecution under serious penal provisions.
155. The litigation continued over several years.
156. Ultimately, the criminal prosecution failed.
157. The Court cannot ignore the mental agony,
social consequences and prolonged litigation inevitably
suffered by the respondent and his family members.
158. Viewed cumulatively with the admitted long
separation, complete collapse of mutual confidence and
repeated unsuccessful attempts at reconciliation, the evidence
indicates that the matrimonial relationship had broken down
beyond repair long before the decree came to be passed.
159. The Court is therefore unable to hold that the
Family Court committed any error in concluding that the
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respondent had established matrimonial cruelty on the
standard of preponderance of probabilities.
160. The finding on Issue No. (i) accordingly calls
for no interference.
161. The second issue concerns desertion.
162. The fact of long separation is admitted.
163. The appellant has attempted to justify her
departure from the matrimonial home by referring to alleged
dowry demands and physical cruelty.
164. The respondent has asserted voluntary
abandonment.
165. The evidence, in the opinion of this Court, does
not conclusively establish that every ingredient of statutory
desertion stood independently proved.
166. The circumstances reveal that separation
resulted from cumulative matrimonial discord rather than a
single unilateral act.
167. In view of the finding already recorded on
cruelty, it is unnecessary to rest the decree exclusively upon
the ground of desertion.
168. Even assuming that some doubt survives
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regarding one of the statutory ingredients of desertion, the
decree is fully sustainable on the ground of cruelty alone.
169. Accordingly, the finding relating to desertion
need not be examined any further.
170. The next issue concerns the subsequent
remarriage of the respondent.
171. The material brought on record indicates that
after obtaining the decree of divorce, the respondent
contracted another marriage during pendency of the present
appeal.
172. Such remarriage cannot render the present
appeal infructuous.
173. Section 15 of the Hindu Marriage Act and the
decision of the Hon’ble Supreme Court in Anurag Mittal make
it clear that an appeal challenging the decree continues to
remain maintainable notwithstanding such subsequent
marriage.
174. The appellate Court must first determine the
correctness of the decree.
175. Since this Court has independently found the
decree sustainable on merits, no further consequence arises
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from the subsequent marriage.
176. The subsequent acquittal has also been relied
upon by both sides.
177. For the reasons already discussed, the acquittal
neither automatically proves matrimonial cruelty nor becomes
wholly irrelevant.
178. It constitutes one important circumstance
among many.
179. The Court has treated it only to that limited
extent.
180. The Court must also notice one aspect which
deserves emphasis.
181. Marriage is not dissolved because the spouses
failed to have children, nor is divorce granted merely because
the parties have remained separated for a long time.
182. The decree is sustained because, on an overall
appreciation of the evidence, the matrimonial relationship
reached a stage where mutual trust completely disappeared,
serious criminal litigation ensued, reconciliation repeatedly
failed and the cumulative conduct established mental cruelty
within the meaning of Section 13(1)(ia) of the Hindu Marriage
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Act.
183. The Family Court appreciated the evidence
from substantially the same perspective.
184. Though certain observations made in the
impugned judgment may admit of refinement, no error of law
or appreciation of evidence has been demonstrated which
would justify interference in exercise of appellate jurisdiction.
185. Accordingly, the appeal deserves dismissal.
186. The instant Miscellaneous Appeal is dismissed.
187. The judgment, dated 19.03.2021 and the
decree, dated 01.04.2021, passed by the learned Principal
Judge, Family Court, Rohtas at Sasaram in Matrimonial Case
No. 351 of 2019 are affirmed.
188. Pending Interlocutory Applications, if any,
stand disposed of.
189. However, there shall be no order as to costs.
190. Let the lower court records be transmitted
forthwith.
191. Before parting with the matter, this Court
considers it necessary to advert to the appellant’s entitlement
for permanent alimony under Section 25 of the Hindu
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192. Section 25 of the Hindu Marriage Act runs thus:-
“25. Permanent alimony and
maintenance.–
(1) Any court exercising jurisdiction
under this Act may, at the time of passing any
decree or at any time subsequent thereto, on
application made to it for the purpose by either
the wife or the husband, as the case may be,
order that the respondent shall pay to the
applicant for her or his maintenance and support
such gross sum or such monthly or periodical
sum for a term not exceeding the life of the
applicant as, having regard to the respondent’s
own income and other property, if any, the
income and other property of the applicant, the
conduct of the parties and other circumstances of
the case, it may seem to the court to be just, and
any such payment may be secured, if necessary,
by a charge on the immovable property of the
respondent.
(2) If the court is satisfied that there is
a change in the circumstances of either party at
any time after it has made an order under sub-
section (1), it may, at the instance of either party,
vary, modify or rescind any such order in such
manner as the court may deem just.
(3) If the court is satisfied that the
party in whose favour an order has been made
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under this section has re-married or, if such party
is the wife, that she has not remained chaste, or,
if such party is the husband, that he has had
sexual intercourse with any woman outside
wedlock, it may at the instance of the other party
vary, modify or rescind any such order in such
manner as the court may deem just.”
193. Section 25 of the Act confers a wide discretion
upon the Court to award permanent alimony and maintenance at
the time of passing any decree or at any time subsequent thereto.
While exercising such jurisdiction, the Court is required to have
due regard to the income and other property of the parties, their
respective financial capacities, their conduct and the other
circumstances of the case. The discretion is neither arbitrary nor
punitive. It is intended to secure a just financial arrangement
consequent upon the disruption of the marital relationship.
194. The expression “other circumstances of the case”
occurring in Section 25 is of wide amplitude. It enables the
Court to take into consideration not merely the disclosed income
of the parties but also their educational qualifications, earning
capacity, age, health, social background, standard of living
enjoyed during the subsistence of marriage, duration of the
matrimonial relationship, liabilities, obligations and all
subsequent events having a bearing on the financial security of
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195. In Rajnesh v. Neha, reported in (2021) 2 SCC
324, the Supreme Court undertook an exhaustive survey of the
law governing maintenance under various enactments. While
dealing with the principles applicable to determination of
maintenance, the Court observed that there can be no fixed
mathematical formula for quantifying maintenance. The
determination necessarily depends upon the facts of each case.
The Court emphasised that the income of the parties, their assets
and liabilities, their actual financial capacity, reasonable needs,
standard of living and other attendant circumstances are relevant
considerations and directed filing of affidavits of disclosure to
enable the Court to arrive at a fair determination.
196. The rationale underlying the aforesaid decision is
that an order of maintenance should neither reduce the claimant
to a condition of financial insecurity nor impose an
unreasonable burden upon the person liable to pay. The object is
to strike a balance between the legitimate needs of one spouse
and the financial capacity of the other so that the order remains
fair to both.
197. The scope of Section 25 also came to be
considered in Kalyan Dey Chowdhury v. Rita Dey Chowdhury
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Nee Nandy, reported in (2017) 14 SCC 200. The Supreme Court
reiterated that the jurisdiction under Section 25 is a continuing
jurisdiction and the Court is required to mould the relief having
regard to the financial position of the parties and the changes in
their circumstances. The emphasis, therefore, is not upon rigid
formulae but upon achieving substantive justice in the facts of
the individual case.
198. More recently, in Rakhi Sadhukhan v. Raja
Sadhukhan, reported in 2025 INSC 789, while examining the
adequacy of permanent alimony awarded by the High Court, the
Supreme Court reiterated that the quantum of permanent
alimony must bear a reasonable nexus with the financial status
of the parties and should be realistic enough to secure the future
financial stability of the claimant spouse. The Court also
recognised that subsequent changes in financial circumstances
are relevant while moulding the relief under Section 25.
199. Keeping the aforesaid principles in view, this
Court has examined the materials placed on record.
200. From the affidavit of assets and liabilities, it is
found that the respondent husband claimed that his monthly
income is Rs. 86,900/-. On examination of the affidavit filed on
12th of May, 2025, it appears that he has enclosed his salary slip
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at page 20 of the affidavit. It is found from his salary slip that
his basic pay was Rs. 55,200/- plus Grade-Pay Rs. 4200/- plus
D.A. Rs. 30360/- plus HRA Rs. 1340/-, total earning being Rs.
86,900/-. The respondent husband in his affidavit of assets and
liabilities correctly stated his monthly income as Rs. 86,900/- In
his affidavit of assets and liabilities, he also said that apart from
his salary, he has a house at Prayagraj and a plot measuring
2275 square feet in Mugalsarai, which was purchased by him. It
is also stated by him that he pays EMI for housing loan at the
rate of Rs. 43,851/- per month and a sum of Rs. 11,340/- as EMI
towards a personal loan.
201. It is no longer res integra that EMI under
housing loan and personal loan shall not be deducted from the
salary. While considering the liability of the husband to pay
permanent alimony, except GPF contribution and income tax, no
amount can be deducted from the salary of the husband for the
purpose of calculation of permanent alimony. Thus, if we
considered the income of the husband at the rate of Rs. 86,900/-
per month total amount of salary would be Rs. 10,42,800/-. The
husband is now aged about 50 years. Therefore, if the income
from the salary per annum is multiplied by 10, it would be Rs.
1,04,28,000/- (One Crore Four Lakh Twenty Eight Thousand)
Patna High Court MA No.367 of 2021 dt.10-07-2026
58/59
only. The wife is entitled one-third of the said amount as
permanent alimony. Thus, wife shall get permanent alimony to
the tune of Rs. 34,76,000/- (Thirty-Four Lakhs Seventy-Six
Thousand) only.
202. In view of this finding and specially when
husband did not make any submission with regard to the
permanent alimony at the time of hearing of the appeal and on
due consideration of the fact that he has a residential flat at
Prayagraj and a piece of landed property at Mugualsarai, we are
of the view that the husband is quite able to pay the aforesaid
permanent alimony to the wife for his maintenance. It is
needless to say that permanent alimony is required to be paid for
the maintenance of the wife in the same status, had she been in
her matrimonial home peacefully with her husband
203. Considering such circumstances, we direct the
respondent husband to pay permanent alimony of Rs.
34,76,000/- (thirty-four lakh seventy-six thousand) only in two
equal installments. First installment shall be paid within 15 days
from the date of communication of this order to the Lower
Court and the second installment shall be paid exactly after 60
days from the date of payment of first installment by issuing
demand draft in the name of the wife in Court below.
Patna High Court MA No.367 of 2021 dt.10-07-2026
59/59
The learned Principal Judge, Family Court, Rohtas at
Sasaram is directed to serve notice to the wife/appellant to
receive the amount of permanent alimony from the court below.
If the respondent fails to pay that amount, the appellant is at
liberty to realize that amount in accordance with law.
(Bibek Chaudhuri, J)
Chandra Shekhar Jha, J: I agree.
(Chandra Shekhar Jha, J)
skm/-
AFR/NAFR NAFR CAV DATE 23.06.2026 Uploading Date 10.07.2026 Transmission Date NA
