Jharkhand High Court
Birendra Kumar vs Malti Devi on 30 June, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
2026:JHHC:19271-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No.302 of 2018
Birendra Kumar, aged about 50 years, S/o Sohan Prasad
Gupta, resident of -C.C.L Quarter Saunda, P.O.-
Bhurkunda, P.S.-Patratu, (Bhurkunda-O.P), District-
Ramgarh, Permanent R/o Vill-Koto,P.O. Bhurkunda, P.S.
Patratu, District-Ramgarh.
... ... Petitioner/Appellant
Versus
Malti Devi, w/o Birendra Kumar, daughter of Ramdhani
Sao, resident of Village-Koto, P.O. & P.S.-Patratu, District-
Ramgarh.
...Respondent/Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Mr. Avilash Kumar, Advocate
For the Respondent : Mr. Shailendra Jit, Advocate
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C.A.V. on 16th June, 2026 Pronounced on 30/06/2026
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 26.04.2018
and decree dated 07.05.2018 (decree signed on 07.05.2018),
passed by the learned Principal District Judge-cum- Family
Court, Ramgarh in M.T.S. No. 21 of 2012, whereby and
whereunder, the suit filed by the appellant – husband for
dissolution of marriage by decree of divorce u/s 13(1)(ia)(i-b)
of Hindu Marriage Act, 1955 against respondent/wife, has
been dismissed.
2. Briefly stated, facts of the case, as stated in the impugned
order, is that appellant and respondent are legally wedded
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husband and wife, whose marriage was solemnized
according to Hindu rites and customs on 24.06.91 at village
Chandrapura, District Bokaro and after marriage
respondent-wife started living with her husband at village
Koto, PS Patratu, District Ramgarh. From their wedlock they
have been blessed with three children namely Chanchla
Kumari aged about 17 years daughter, Ritika Kumari aged
about 11 years daughter and Prince @ Harsh aged about 7
years at the time of filing of the suit.
3. It is stated that the father of the appellant-petitioner was an
employee of Electricity Board and from his retiral benefit he
built a house over the land situated in village Koto, PS
patratu, District Ramgarh purchased in the name of his wife
Champa Devi, who is the mother of the appellant-petitioner
and mother-in-law of the respondent and respondent is still
residing in the said house but all alone ousting the
appellant-petitioner and his parents from the said house.
4. It is further stated that in the year 2005, there was an
abrupt change in the behavior of respondent-wife due to
instigation of her parents and brother of respondent namely
Vijay Kumar Sao leading to some differences between the
husband and wife because his wife was threatening him to
oust old parents from the said house but the appellant-
petitioner disagreed to that resulting in bitterness in their
relationship and respondent-wife started non-cooperation in
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the family affairs due to said reason. The quarrel continued
between the appellant-petitioner and respondent-wife then
petitioner being an employee of SBI and peace loving and law
abiding citizen started living with his parents in a rented
house at village Sounda, PS Patratu, District Ramgarh and
since the year 2005 appellant-petitioner was deserted by the
respondent and deprived of his conjugal life.
5. It is further stated that the fact of desertion has been
admitted by the respondent in G.R. Case No. 2114/05 filed
u/s 498A of IPC and 3/4 of D.P. Act and also in
Maintenance Case filed u/s 125 Cr.P.C in the year 2007 and
she is getting maintenance of Rs. 5000/- per month from the
appellant petitioner, at the time of filing of the suit.
6. It is contended that the respondent is guilty of deliberate
and intentional desertion of appellant-petitioner coupled
with mental, physical and financial cruelty as well. The
house was built by the father of the petitioner and after
ouster and dispossession of other family members she let
the house on rent and getting income from the rent of said
house @Rs. 10,000/- per month and by suppressing this
fact she obtained an order of Maintenance. Since the
appellant petitioner is admittedly living separately since
2005 from the respondent due to her conduct of cruelty and
desertion. So, he is entitled to get a decree of dissolution of
marriage.
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7. Allegation has been made that the respondent attempted to
kill him by poisoning, so that she can get the job of her
husband in the Bank, which amounts to cruelty and further
attempt of amicable settlement failed.
8. It is stated that the cause of action arose on 24.06.1991,
which is the date of their marriage and in the year 2003
when the appellant-petitioner and his parents were ousted
from the house premises and also since 2005 when
admittedly the appellant-petitioner was deserted depriving
him of his conjugal life and day to day thereafter.
9. On being noticed, the respondent appeared before the
learned family court and filed written statement.
10. It is denied by the respondent that she has ousted the
appellant and his parents from the house situated at village
Koto, rather she being the ‘Bahu’ is living in the said house
with her husband and her in-laws and her behavior towards
her husband and in-laws are quite normal and she has
always given proper regards to them.
11. It is further stated that the house where the respondent is
living is in joint possession of her husband and in-laws and
since the appellant-petitioner is posted in SBI, Sounda
Branch, so he has taken room on rent and some time they
are living there and some time with the respondent. Further,
the petitioner always remained in physical and sexual
contact with the respondent, so there is no question of any
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desertion and cruelty and they are leading conjugal life
peacefully. It is wrong to say that she is getting rent of Rs.
10,000/- per month from the house situated at Koto. The
petitioner has never given any Sanha in the police station
regarding administering poison to him by the respondent to
get service of her husband, rather the respondent was
subjected to cruelty by the petitioner. The suit has been filed
with ulterior motive and mala fide intention and the
respondent is always ready to settle the case amicably for
establishing good relationship with the petitioner and is
always ready to cooperate with the petitioner in making the
good relationship.
12. The learned family court, on the basis of pleadings of the
parties and after hearing the respective parties and
analyzing the evidence adduced on behalf of both the sides,
held that the appellant-husband has not been able to prove
the fact of cruelty and desertion against the respondent-wife
and accordingly dismissed the suit, against which the
present appeal has been filed.
Submission of the learned counsel for the appellant-husband:
13. It has been contended on behalf of the appellant that the
factual aspect which was available before the learned family
court supported by the evidences adduced on behalf of the
appellant has not properly been considered and as such, the
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judgment impugned is perverse, hence, not sustainable in
the eyes of law.
14. It has been submitted that the issue of cruelty as also
desertion has not been taken into consideration in the right
perspective.
15. Submission has been made that on the point of cruelty and
desertion, there is direct evidence that the respondent
ousted the appellant as well as their family from the house,
which was constructed by the father of the appellant but
that aspect of the matter has not been taken into
consideration by the learned family court.
16. The respondent had filed a criminal case against the
appellant and his family members under Section 498A/34
IPC in which they were acquitted, against which the
respondent filed appeal but that was dismissed.
17. Further, the learned family court has brushed aside the
evidence produced by the appellant and has given no specific
finding with respect to the evidences produced by the
appellant.
18. Further, even the learned family court did not take into
consideration the fact that respondent-wife has committed
mental and physical cruelty towards appellant-husband and
his family members by lodging forged case in which they
were acquitted.
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19. Further, admittedly, the parties are living separately for a
long period of time and there is no chance of restoration of
conjugal right, but this aspect of the matter has also not
been taken into consideration while passing the impugned
judgment.
20. Submission has been made that the relationship of husband
and wife is on the thread of trust which itself has been
broken and there is no chance of re-union.
21. Learned counsel for the appellant, based upon the aforesaid
grounds, has submitted that the judgment impugned suffers
from error and as such it is not sustainable in the eyes of
law.
Submission on behalf of respondent-wife:
22. Submission has been made that the appellant has miserably
failed to prove the allegation of cruelty and desertion against
the respondent-wife. Neither the parents nor the children of
the appellant have been examined to corroborate the
statement of appellant. Contrarily, the respondent-wife at
paragraph 26 and their daughter Ritika Kumar have said
that the appellant is visiting regularly having relation with
her wife. So far allegation of administering poison to the
appellant by the respondent is concerned, in cross-
examination at paragraph 23 he himself admits that he was
administered sleeping pills in excess quantity and he has not
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taken any medical help and further no written complaint
was ever filed by him in this regard.
23. Submission has been made that it is a false allegation that
the respondent-wife has ousted the petitioner-appellant
[husband] from the house, rather the truth is that the
appellant is an employee of SBI, Saunda Branch and he took
room on rent there and sometimes lives and in vacation and
holidays comes in the paternal house, where the
respondent-wife resides and remains in physical relation
with her also. There is no element of cruelty or desertion.
The respondent-wife has further denied to receive any
amount as rent.
24. Further submission has been made that the respondent-wife
is always ready and willing to lead conjugal life with the
appellant-husband.
Analysis:
25. This Court has heard the learned counsel for the parties and
gone through the finding recorded by the learned Family
Judge in the impugned judgment as also the trial court
record.
26. The admitted fact herein is that the suit for divorce has been
filed on the ground of cruelty and desertion i.e., by filing an
application under Section 13 (1) (i-a) (i-b) of the Hindu
Marriage Act, 1955 and accordingly, evidence have been led
and argument has been advanced by learned counsel for the
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appellant, however, the suit was decided against the
appellant/wife.
27. From the pleadings available on record and the arguments
advanced on behalf of parties, the issues which require
consideration are as to:
I. Whether the judgment and decree of
divorce passed on the ground of cruelty
under Section 13(1)(ia) of the Hindu
Marriage Act and/or on the ground of
desertion under Section 13(1)(ib) requires
interference?
28. This Court, in order to appreciate the testimony available on
record, has gone through the testimonies of the witnesses,
as available in the impugned order.
29. In this case the petitioner-appellant has adduced three
witnesses in support of his case.
30. PW 1 is Sanjay Kumar Singh, who has deposed that
marriage of Birendra Kumar was solemnized with Malti Devi
on 24.06.1991 according to Hindu rites and rituals and from
their wedlock they have been blessed with two daughters
and one son. It is further stated that respondent Malti Devi
captured the house of in-laws constructed on 16 decimals of
land purchased in the name of her mother-in-law from the
retiral benefit of her father-in-law in the year 2005 and
expelled all her in-laws and husband from there and
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thereafter, let it out to the tenants and from the tenant she
is realizing rent. Appellant and his parents are living in a
rented quarter of CCL and respondent threatened them that
if they will come to the house captured by her, she will file a
rape case against them.
31. It has further been deposed that respondent had also filed a
case of cruelty against her husband and in-laws for demand
of dowry which could not be proved by her and ultimately
the accused persons were acquitted in the said case.
Respondent had filed a case of Maintenance in the court and
she is getting maintenance of Rs. 8000/- per month and
petitioner-appellant is paying the maintenance. Respondent
is living separately from the petitioner-appellant since the
year 2005 and she has only love for money and property and
she has spoiled the life of petitioner-appellant, so he has
filed this divorce case.
32. In his cross-examination, he said that affidavit has been
prepared by his lawyer but he knows the contents of affidavit
as Birendra Singh is his neighbour. He was not present on
the occasion of marriage of appellant and respondent. Elder
daughter of petitioner namely Chanchal is aged about 18
years, and 2nd daughter Ritika is aged about 16 years. He
cannot say the name of house owners whose houses are
situated near the house of parents of petitioner. He doesn‟t
know the name of mother of petitioner. He further said that
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respondent had threatened her husband in his presence that
if he will come to her house she will file a rape case against
him but he cannot say the day and date of said occurrence.
He had never attended the court, where the respondent had
filed a case of cruelty for demand of dowry but he came to
know about the said case from the petitioner. Ritika and
Prince are living with their mother and elder daughter of
petitioner-appellant is living at Banglore. This case is related
to the disputes between wife and husband. It is not a fact
that according to the instruction of petitioner he has
deposed wrongly in this case.
33. PW 2 is the petitioner Birendra Kumar himself, who said
that he has filed this case for divorce. Respondent is his wife
and their marriage was solemnized on 24.06.91 according to
Hindu rites and rituals and after marriage he lived with his
wife in village Koto and out of their wedlock they have been
blessed with two daughters aged about 22 years and 17
years respectively and one son aged about 12 years. After
retirement from Electricity department father of the
petitioner purchased the land in village Koto, PS Patratu and
constructed house over it and in the said house petitioner
started living with his wife and other family members but
subsequently his wife expelled his parents, brother-in-law
and sister-in-law (Dewar Dewrani) from the said house. The
house constructed in village Koto consists of 17 rooms
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having an area of 16 decimals of land in which the
respondent is living alone since 2005. Since, 2005 a random
change came in the behavior of respondent and under the
influence of her parents and brother she started behaving
like an enemy with the petitioner and they expelled the
petitioner and all his relatives from the said house with the
help of antisocial aliments. Petitioner started living in CCL
quarter Sounda along with his parents and sister and
marriage of his sister was performed by his parents from a
rented house on his own expenses. Since, 2005 there is no
conjugal relationship between the petitioner and respondent.
Respondent also filed a case on the instigation of her brother
u/s 498A IPC and 3/4 of D.P. Act and also filed a
Maintenance case u/s 125 Cr.P.C and she is getting
maintenance of Rs. 8000/- per month from the petitioner.
Petitioner has been tortured physically and mentally by the
respondent and he was put into economic loss by the
respondent by expelling him and his family members from
the house of village Koto and she is getting rent of
Rs.10000/- per month from the said house which has been
given on rent. Not only that respondent also administered
poison to him to get his job on compassionate ground after
his death and for that reason he had informed the Bank
Management not to provide any benefit to his wife if the
petitioner dies. Petitioner tried to pacify the matter with the
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respondent but there was no change in her behavior.
Respondent is getting maintenance from the petitioner even
then the petitioner is bearing the burden of education cost of
his children. He is also providing treatment to his ailing and
old parents, who are bed ridden. So, he has been compelled
to file this divorce suit against the respondent.
34. In his cross-examination he said that he has filed his
affidavited examination in chief on 30.11.17 and after going
through it he has put his signature on the same. Chanchla
Kumari, Ritika Kumari and Prince Kumar are his children.
His wife has expelled him and his family members from the
house of village Koto but for that he has not filed any written
complaint in the police station. A Panchyat was convened in
village Koto regarding his torture by his wife but he doesn‟t
remember the date of said Panchyati. No Panchyati paper
was prepared in the light of said Panchyati. He is living
separately from his wife since 2005 and his three kids are
living with their mother. In the year 2005 Malti Devi had
filed a criminal case of torture for demand of dowry in which
they have been acquitted. When his wife has administered
poison to him he can’t say the day and date of said
occurrence. He has not filed any case in the police station
regarding administering the poison to him. As poison he was
administered sleeping pills in excessive dose but for that he
has not taken any medical aid. He had informed the bank
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that if he dies, his wife is not entitled to get any benefit or
service on his behalf but he has not attached any such
paper with his affidavit. He has got his parental house in
village Koto and except that he has no other house. His wife
has filed a case against him for restitution of conjugal right
and he knows about it. It is not a fact that statement given
by him through affidavit in the court is wrong and
respondent has never tortured him. It is also not a fact that
he has an illicit relation with another lady and for that he
has refused to stay with his wife and OP wants to stay with
him.
35. PW 3 is Bijay Saw, who said that he knows either side.
Respondent Malti Devi is his maternal sister (cousin) and he
was the mediator in the marriage of Malti Devi and Birendra
Kumar, whose marriage was performed on 24.06.91 and
after marriage they got three children from their conjugal
life. Petitioner’s brother and sister are already married and
his parents are alive. Father of the petitioner had
constructed a house which consists of 17 rooms on 16
decimals of land purchased by him from his retiral benefit.
Petitioner kept his wife with him at his place of posting but
since 2005 respondent started doing cruelty with the
petitioner and she was demanding entire money earned by
her husband and started interfering with the family affairs of
the petitioner which created differences between them.
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Respondent also expelled the petitioner, his parents and
other family members from the parental house of village Koto
and threatened that if they will come to stay at that house,
they will be implicated in a false rape case and they will have
to spend their life in jail. Respondent also filed a case of
torture against the petitioner and his family members for
demand of dowry in which petitioner went to jail.
Respondent also filed a Maintenance case against the
petitioner. Since, 2005 Respondent is staying alone in the
house of 17 rooms and she gave the portion of said house on
rent to other person and she is getting rent from her renters.
Petitioner and his family members are not going to stay in
the said house due to the terror of the Respondent and
marriage of petitioner’s sister was performed from another
place. Respondent has captured the entire house and she
has only love for money and property. She has no love for
her husband. Mother of petitioner is bed ridden since last 7
years because she received a stroke due to shock because
her daughter-in-law captured her house. She is getting
maintenance of Rs. 8000/- per month from the petitioner.
Petitioner is bearing the educational cost of his children
because the Respondent is not spending a single pie on her
children. Petitioner is staying in a rented house along with
his old ailing parents in village Sounda. Petitioner has threat
of life from the respondent because she administered poison
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to the petitioner in his food. The motto of respondent behind
it was to get the job of her husband on compassionate
ground after his death, so she did so. Thereafter, petitioner
informed the bank that after his death respondent will not
be entitled to get any benefit as his wife from the bank. So,
the petitioner has filed this case of divorce against his wife.
36. In his cross-examination he said that he has filed this
affidavit after going through it. He is living in Asansol. He
cannot say the age of children of petitioner. Birendra Kumar
has got two brothers and three sisters. Children of petitioner
are living with their mother. Two daughters are studying
out- side and son is living with his mother. He has no
knowledge about Khata number and plot number of the land
on which the house of petitioner’s father is situated.
Petitioner said him that respondent is doing cruelty with him
by assaulting him and by snatching his entire money. Once
the respondent had assaulted Birendra in his presence but
he cannot say the date of that occurrence. Birendra had got
only one house at Patratu and he had no any other house
anywhere. Malti Devi is living in the house of Birendra’s
father and she has given some portion of said house on rent
but he cannot say the name of renters. Malti Devi has filed a
case for restitution of conjugal right but he has no
knowledge about the said case. He came to depose in a
divorce case. It is not a fact the he has filed a false affidavit
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and he gave false evidence in this case on the request of
petitioner.
37. Respondent -Opposite party has adduced four witnesses in
favour of her case out of them OPW 1 is Malti Devi, OP
herself, who said that her marriage was performed on
24.06.91 according to Hindu customs and traditions and
after marriage she faced hardship but somehow she pulled
her life up to 1994. Thereafter, she gave birth to a female
child and in the year 1998 she gave birth to another female
child and for that reason members of her matrimonial house
started torturing her which continued and petitioner never
cared for her. In the year 2003 she gave birth to one male
child but petitioner said that said son is not born out of his
wedlock and since she is a characterless lady so she cannot
stay in his house and on this allegation, she was expelled
from her matrimonial house. Several times Panchyati was
held in the society but the petitioner was not ready to keep
her with honour and dignity and he was demanding heavy
amount to keep her with him but respondent was not in a
position to fulfill his demand, so ultimately, she filed a case
u/s 498A of IPC & 3/4 of D.P. Act in which the police filed
charge sheet after investigation. Due to the said criminal
case filed by the respondent, the petitioner has filed this
divorce case in the year 2012 to take revenge from the
Respondent. Petitioner is not providing proper facility to his
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children and the respondent is alone maintaining her kids.
She wants to stay with the petitioner and for that she has
filed a case of restitution of conjugal right bearing No.
198/12, which is pending as Misc. Case No. 3/14 in this
court. The children of petitioner has also filed a written
complaint against the petitioner. Petitioner has constructed
his residential house in Basant Bihar Colony Ward No. 6,
Ramgarh and he is also having government quarter and
shop. Many times mediation was held but the petitioner is
not ready to stay with the respondent and due to torture of
petitioner respondent become ill and she has filed the
medical prescription. Petitioner is short tempered and a
cruel man. He is addicted of wine and had illicit relationship
with another lady. Without any rhyme and reason petitioner
has left the respondent deserted and due to said act of the
petitioner her children are also in mental shock.
38. In her cross-examination she said that first posting of her
husband was in Chanchal, District Malda, where she stayed
with him and prior to that she was staying in her
matrimonial house. When her husband was transferred to
Central Sounda SBI she started living in her matrimonial
house. During the posting of her husband at Chanchal and
Sounda some time he was allowing her to stay at her
matrimonial house thereafter she was being expelled from
there. She stayed with her husband till September, 2007
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and thereafter she started living separately but during this
period her husband was in contact with her. The house
where she is staying presently, is constructed on whose
land, she has no knowledge of it. She is M.A. Her
matrimonial ancestral house is situated in district
Aurangabad. Her father-in-law was working in Electricity
department Patratu. She has no knowledge whether her
father-in-law has purchased the land of village Koto from his
income or not. She has no knowledge about the area of land
on which the house, where she is living, is situated. The
dwelling house in which she is living consists of 17 rooms
out of which only five rooms are in habitable condition and
rest 12 rooms have collapsed. She can’t say the area of land
on which the said house is situated. Her husband have three
brothers out of them his elder Dewar Khagesh is living in his
house and younger Dewar Anish is in job. Both the brothers
of her husband are not living presently in the house situated
in village Koto. She is living since 2003 alongwith her kids in
the house situated in village Koto. It is not a fact that she is
getting rent of Rs. 10,000/- from the said house, in which
she is living. Her mother-in-law is bed ridden since last 2-3
years. Her husband, her mother-in-law and father-in-law are
living in Ramgarh in their own house and they are not living
in CCL quarter. The family members of her matrimonial
house never lived in CCL quarter situated in Sounda. It is
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not a fact that she has threatened her father-in-law and
mother-in-law that if they will live in the house of village
Koto they will be implicated in rape case by her. She has no
knowledge in this regard that her father-in-law is willing to
do worship in the house constructed by him but he is
unable to do so due to her presence. She has not seen the
documents of house situated in Ramgarh, where the family
members of her matrimonial house are presently living. She
came to know from their neighbour that said house is in the
name of her Dewrani purchased from the income of her
husband and she will produce the paper in this regard and
she will also adduce the evidence the neighbour of her
husband and father-in-law.
39. She had further deposed that her elder daughter is presently
studying in Banglore and the 2nd daughter is pursuing
Engineering from Sambalpur and his son is presently
student of OP Jindal school. She has heard that her elder
daughter is studying in Banglore because she is not being
allowed to meet with her elder daughter. She has no idea
about the monthly educational expenses of her daughter.
The educational expenses of her daughter are being borne by
her husband. The educational expenses of her son are being
borne by some time by her and some time by her husband.
She is getting total 8000/- per month as maintenance for
her and her three children. She was also willing to do some
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job because she was educated. It is not a fact that to get the
job she administered poison to her husband so that she can
get job on compassionate ground to fulfill her desire. On
22.08.96, on 30.08.98 and on 05.01.18 Panchyati were held
and in the last Panchyati 50 persons were present but her
husband did not turn up. She has got papers related to all
the Panchyati held in past and she will present those papers
in the court. She had filed a case against her husband and
in-laws regarding torture for demand of dowry in which they
have been acquitted because her both the daughters had not
deposed in that case. The quarter situated in Central
Sounda belongs to CCL, which is in possession of her
husband but the shop in which Khagesh is running a
business that is under whose ownership, she has no
knowledge of it. Sometimes her husband lives in CCL
quarter and sometime in the house of Basant Bihar colony,
Ramgarh, Ward No. 6. One another house is situated in New
market, Patratu, where her husband lives and ownership of
that house is with her Dewar Khagesh and his wife
Damyanti Devi. The medical treatment of her mother-in-law
is being done by her husband. It is not a fact that
intentionally and deliberately she started quarreling with her
husband and also started living separately from her
husband and she captured the house of her mother-in-law
and she is receiving rent of Rs. 10,000/- per month from the
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renter staying in the said house. It is not a fact that she
attempted to kill her husband to get job in place of her
husband. It is also not a fact that she has no love with her
husband and she has only love from his earning and
property, so she captured the house of her mother-in-law
and expelled the relatives of her matrimonial house and
started living separately from petitioner by herself. She has
filed the case of restitution of conjugal right against her
husband after the disposal of criminal case of torture for
demand of dowry and maintenance case.
40. OPW 2 is the daughter of the petitioner and respondent, who
said that she knows the fact of this case. After marriage her
mother started living at her matrimonial house alongwith
her in-laws but after some time she was subjected to torture
and cruelty by the relatives of her husband due to demand
of dowry. Her father was under the influence of his parents
and relatives, so her mother was separated by her father
from his family. Her father never loved them and her mother
is maintaining her kids. Petitioner and his father are
mentally torturing the respondent and her kids. Her father
has constructed two houses in Patratu and Ramgarh from
his income in the name of his unemployed brother and
parents. Petitioner has also his houses at Aurangabad, New
Market Patratu, Koto, Patratu and new Basant Bihar Colony
Ramgarh. Her mother is providing medical aid to them.
22
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Petitioner and his family members want to perform 2nd
marriage of her father and they also want to expel them from
the house of Koto forcibly. Respondent is never willing and
ready for divorce, rather she has filed a case of restitution of
conjugal right, which is pending in this court. The court also
tried to settle the matter amicably but petitioner is not ready
to live with them. Due to torture of petitioner respondent is
suffering from many diseases. Petitioner has deserted his
wife and his children without any reasonable and justified
cause due to which their future became dark. In her cross-
examination she said that she came to know about the
marriage of her parents from her parents. When she
developed sense to understand she was living in river side
Bhurkunda along with her father occasionally. Her mother
and father were quarreling with each other. After quarrel
they were brought to Patratu by her grandfather,
grandmother, uncle and aunt and from there they went to
their maternal home alongwith her mother.
41. She had further deposed that in the year 2007 her mother
had filed a case against her father and grand parents. She
came to deposed today in this case from Odisha, where she
is pursuing Engineering. Her elder sister is pursuing MCA
from Banglore, who is bearing their educational expenses
she has no knowledge of it. The house of village Koto, where
her mother is staying presently is either in the name of her
23
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father or her grandfather. Paternal house of her grandfather
is situated in Aurangabad. Who has constructed the house
of village Koto she has no knowledge of it. Her mother wants
to live with her father. Her grandfather had demanded dowry
in her presence in the year 2014. The case filed by her
mother in the year 2007 has already been disposed of and in
the said case no one was convicted. Her mother is receiving
the entire maintenance amount and she is getting her share
in the maintenance amount from her mother. Her
educational cost is Rs. 5500/- per month. Who is paying the
said amount, she has no knowledge of it. She is studying
after getting educational loan. Entire educational cost of her
elder sister is being born by her father. Whenever, she is in
need of money she demands money from her mother and
father both on phone. She has got two uncles and two aunts,
all of them are living separately. Her one uncle is living in
Ramgarh. Where her younger uncle is living, she has no
knowledge of it. Her father is staying in quarter at Sounda.
She came to know these facts from the family members. His
father is bearing the medical expenses of her grandparents.
In a case of torture for demand of dowry filed by her mother,
her father had gone to jail. Her mother and father are living
separately since last 10 years but they are in contact with
each other. She has no knowledge that her mother was living
separately from her grandparents and she was taking Rs.
24
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6000/-per month from her father for her expenses. Her
mother has never taught in any school. Her father has never
told him that her mother had administered poison to him. It
is not a fact that her mother was always quarreling with her
father and she filed a false case of torture for demand of
dowry against her father. It is also not a fact that her mother
administered poison to her father as because she was willing
to get job of her husband on compassionate ground after his
death. It is also not a fact that her mother tortured her
father due to which her father had filed this divorce case. It
is also not a fact that on the instruction of her mother she is
deposing falsely.
42. OPW 3 is Lali Devi, who said that she know both side, who
were married in the year 1991 according to Hindu customs.
After marriage Malti Devi never lived happily and peacefully
in her matrimonial house and she was subjected to torture
for demand of dowry. After giving birth to two female child,
she was also subjected to cruelty in different ways and when
she gave birth to her son, she was alleged to be an unchaste
lady and she was expelled from her matrimonial house just
after 14 days of birth of her son.
43. OP filed a case for torture due to non-fulfillment of demand
of dowry. Panchyati was held many times but the matter
could not be settled. She is being neglected by the petitioner
and since long she is leading a lonely life by maintaining her
25
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children. Respondent has also filed a case for restitution of
conjugal right which is pending in the court. Petitioner also
wants to expel her from her matrimonial house, where she is
living presently. Petitioner has many houses, shops and
government residential accommodation is being provided to
him as a bank employee. Petitioner is not ready to live with
the respondent and mediation failed. Since the respondent
has only one shelter so it was decided by the Patratu Sarkari
Mandal unanimously that she must not be ousted from her
matrimonial house and right of respondent and her children
should be protected.
44. In her cross-examination she said that her house is at a
distance of 1- to 15 steps from the house of Malti Devi. Malti
Devi is a member of Sakhi Mandali Mahila Mandal and she
is also a member of said organization. Birendra Kumar has
two brothers and three sisters. After marriage the place in
which Malti Devi stayed with her husband, she can’t say
about its detail. The house where Malti Devi is living
consists of 16 to 17 rooms out of which only 5-6 rooms are
in habitable condition and rest are in collapsed condition.
Previously other family members of Malti Devi were living
there. Presently Malti Devi is living there and other family
members of matrimonial house of Malti used to visit the said
house. Birendra is also visiting his house, who used to come
in between 10 to 11 AM and at 5 PM to drop his children.
26
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She cannot say about all the occurrence of village Koto. She
has also no knowledge that in village Koto and New market
in whose house family disputes are going on and she cannot
suggest their names. House of Khagesh, who is the brother
of Birendra is situated besides her house and family
members and relatives of Khagesh visit his house. Quarrel is
going on in between Birendra and Malti since last 15 years.
Anish is doing job outside since last 10 years. Fifteen years
ago a Panchyati was held while Birendra and his family
members were willing to expel Malti from her matrimonial
house then police intervened and helped Malti in staying in
the said house. Neither the police nor Malti expelled her
husband and in-laws from the said house. She has no
knowledge what demand of dowry was made by her husband
and in-laws from Malti. She has also no knowledge that
Malti is getting maintenance from the court. Malti is bearing
the educational and maintenance cost of her children. When
Malti filed a case in Patratu police station, at that time she
was not with her. She had not deposed in the case of Malti
filed for torture due to non-fulfillment of demand of dowry.
Malti is not working and there is no renter in the house of
Malti. Neither she asked Malti nor she told her how she is
bearing the educational cost of her children. It is true that
Birendra used to come to the house of Malti alonwith his
children. She has no knowledge whether in a case of torture
27
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for demand of dowry filed by Malti Birendra had gone to jail
or not. She had no knowledge that Malti was teaching in any
school. Birendra has a quarter in Sounda but whether it is a
government quarter provided by the bank or not she has no
knowledge of it. She has seen the Pucca house of Birendra
situated in Basant Bihar Colony, where he living with his
parents and relatives. In both the places in new market and
Basant Bihar colony Birendra and his family members are
living. House and shop has been constructed by Birendra
because Khagesh is unemployed and ever body is saying
that Birendra had constructed the house and shop. Father-
in-law of Malti was working in Electricity department.
Khagesh is living with his parents. Mahila Mandal is a
private organization or government organization she has no
knowledge of it. Members of Patratu Mahila Mandal have
decided that if Malti Devi is expelled from her ancestral
house it will be illegal but she has no knowledge about the
ownership of said house. It is not a fact that since she is the
member of Mahila Mandal so she deposed wrongly in favour
of Malti Devi.
45. OPW 4 is Sharda Devi, who said that marriage between
parties were solemnized in the year 1991 according to Hindu
rites and custom but just after marriage respondent was
subjected to torture due to demand of dowry and petitioner
is not caring for his wife and children. She also proved the
28
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certified copy of Misc. Case No. 3/14 as Ext. A marked with
objection. She also said that attempt for settlement was
made but petitioner is not ready to live with the respondent
due to which the future of respondent and her children has
become dark.
46. In her cross-examination this witness said that on the
request of Malti devi she came to deposed in the court and
according to statement of Malti Devi she has prepared her
affidavit. She has no knowledge about the date of birth of
two daughters of respondent. House of respondent is in front
of her house. She also stated about boundary of house of
Malti Devi. She is living in village Koto since last 20 years.
There is no renter in the house of Malti Devi and she is not
the member of Sakhi Mahila Mandal. After marriage Malti
lived in village Koto. She never lived with Birendra on the
place of his posting. Malti is living in village Koto after the
occurrence of assault and expulsion by her husband and in-
laws and the said house where presently she is living
belongs to her in-laws. How many cases have been filed by
Malti Devi and what is the ultimate result of those cases she
has no knowledge of it. Other in-laws of Malti Devi are living
in new market after constructing their house. It is not true
that Malti Devi expelled her in-law from the house of Koto by
giving threatening to implicate them in false case. She came
to know about the name of respondent Malti Devi 2 to 4
29
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months ago but she is known to her by face since long. It is
not true that she has no knowledge about the case filed by
Malti Devi and under the influence of Malti Devi she deposed
wrongly in this case because she and Malti are the members
of same Satsang organization.
47. On the basis of the pleading of the parties, the learned
Principal Family Judge after appreciating the evidence,
dismissed the suit filed by the appellant-husband for
dissolution of marriage by decree of divorce u/s 13(1)(i-a)(i-b)
of Hindu Marriage Act, 1955 against respondent/husband,
against which the present appeal has been preferred.
48. It requires to refer herein that since appellate jurisdiction
has been invoked herein, therefore, before entering into
merit of the case, at this juncture it would be purposeful to
discuss the appellate jurisdiction of the High Court.
49. 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).
50. 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
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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.
51. 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
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:
“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.”
52. Herein, the learned counsel for the appellant has argued
that the evidence of cruelty and desertion as also the
demand of dowry has not properly been considered and as
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such, the judgment suffers from perversity, hence, not
sustainable in the eyes of law.
53. This Court, while appreciating the argument advanced on
behalf of learned counsel on the issue of perversity, needs to
refer herein the interpretation of the word “perverse” as has
been interpreted by the Hon’ble Apex Court which means
that there is no evidence or erroneous consideration of the
evidence. The Hon’ble Apex Court in Arulvelu and Anr. vs.
State [Represented by the Public Prosecutor] and Anr.,
(2009) 10 SCC 206 while elaborately discussing the word
perverse has held that it is, no doubt, true that if a finding of
fact is arrived at by ignoring or excluding relevant material
or by taking into consideration irrelevant material or if the
finding so outrageously defies logic as to suffer from the vice
of irrationality incurring the blame of being perverse, then,
the finding is rendered infirm in law. Relevant paragraphs,
i.e., paras-24, 25, 26 and 27 of the said judgment reads as
under:
“24. The expression “perverse” has been dealt with in a number
of cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501]
this Court observed that the expression “perverse” means that the
findings of the subordinate authority are not supported by the
evidence brought on record or they are against the law or suffer
from the vice of procedural irregularity.
25. In Parry’s (Calcutta) Employees’ Union v. Parry & Co.
Ltd. [AIR 1966 Cal 31] the Court observed that “perverse finding”
means a finding which is not only against the weight of evidence
but is altogether against the evidence itself. In Triveni Rubber &
Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341]
the Court observed that this is not a case where it can be said
32
2026:JHHC:19271-DB
that the findings of the authorities are based on no evidence or
that they are so perverse that no reasonable person would have
arrived at those findings.
26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58]
the Court observed that any order made in conscious violation of
pleading and law is a perverse order.
In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed
that a “perverse verdict” may probably be defined as one that is
not only against the weight of evidence but is altogether against
the evidence. In Godfrey v. Godfrey [106 NW 814] the Court
defined “perverse” as turned the wrong way, not right; distorted
from the right; turned away or deviating from what is right,
proper, correct, etc.
27. The expression “perverse” has been defined by various
dictionaries in the following manner:
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 EncyclopedicEdn.)
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.”
54. Herein, submission has been made on behalf of the
appellant-husband that the respondent-wife committed
mental and physical cruelty against him.
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55. So far the allegation of cruelty is concerned, it
requires to refer herein the definition of „cruelty’ as has been
defined by Hon‟ble Apex in the judgment rendered in Dr.
N.G. Dastane Vs. Mrs. S. Dastane [(1975) 2 SCC 326],
wherein it has been held that the Court is to enquire as to
whether the 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.
56. The cruelty has also been defined in the case of
Shobha Rani Vs. Madhukar Reddi [(1988) 1 SCC 105],
wherein the wife alleged that the husband and his parents
demanded dowry. The Hon‟ble Apex Court emphasized that
“cruelty” can have no fixed definition.
57. According to the Hon’ble Apex Court, “cruelty” is the
“conduct in relation to or in respect of matrimonial conduct
in respect of matrimonial duties and 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.”
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58. The Hon’ble Apex Court has further observed
therein that while dealing with such complaints of cruelty
that it is important for the Court to 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.”
59. 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.
60. In V. Bhagat vs. D. Bhagat (Mrs.), (1994)1 SCC
337, the wife alleged in her written statement that her
husband was suffering from “mental problems and paranoid
disorder”. The wife’s lawyer also levelled allegations of
“lunacy” and “insanity” against the husband and his family
while he was conducting cross-examination. The Hon‟ble
Apex Court held these allegations against the husband to
constitute “cruelty”.
61. In Vijay kumar 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
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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.
62. 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 ground for divorce.
63. Cruelty” has an inseparable nexus with human
conduct and is always dependent on social strata or milieu
to which parties belong, their ways of life, relationship,
temperaments and emotions that are conditioned by their
social status, reference be made to the judgment rendered
by the Hon‟ble Apex Court in the case Vishwanath
Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC
288.
36
2026:JHHC:19271-DB
64. The Hon‟ble Apex Court in the case of K. Srinivas
Rao v. D.A. Deepa, (2013) 5 SCC 226 has observed that
cruelty is evident where one spouse so treats other and
manifests such feelings in other, as to cause reasonable
apprehension in mind of other that it would be harmful or
injurious to reside with other spouse and cruelty may be
physical or mental. It has further been observed that
staying together under the same roof is not a precondition
for mental cruelty. Spouse can cause mental cruelty by his
or her conduct even while he or she is not staying under the
same roof.
65. In matrimonial relationship cruelty mean absence of
mutual respect and understanding between spouses which
embitters relationship. Sometimes it may take form of
violence, or at times may just be an attitude or approach.
Silence in some situations may also amount to cruelty
reference be made to the case of Ravi
Kumar v. Julmidevi, (2010) 4 SCC 476.
66. For considering dissolution of marriage at instance
of a spouse who alleges mental cruelty, result of such
mental cruelty must be such that it is not possible to
continue with matrimonial relationship reference may be
taken from the judgment rendered by the Hon‟ble Apex
Court in the case of Joydeep Majumdar v. Bharti Jaiswal
Majumdar, (2021) 3 SCC 742.
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67. Further the word „cruelty‟ is used relation to human
conduct or human behaviour. It is the conduct in relation to
or in respect of matrimonial duties and obligations. It is a
course of conduct and one which is adversely affecting the
other. The cruelty may be mental or physical, intentional or
unintentional. There may be cases where the conduct
complained of itself is bad enough and per se unlawful or
illegal. Then the impact or the injurious effect on the other
spouse need not be enquired into or considered. In such
cases, the cruelty will be established if the conduct itself is
proved or admitted, reference in this regard be made to the
judgment rendered by the Hon‟ble Apex Court in the case of
Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778.
68. Further, in the case of Manish Tyagi v. Deepak
Kumar, (2010) 4 SCC 339 the Hon‟ble Apex Court has
categorically observed that to constitute „cruelty‟, it is
enough that conduct of one of parties is so abnormal and
below accepted norm that other spouse could not
reasonable be expected to put up with it. Conduct is no
longer required to be so atrociously abominable which
would cause reasonable apprehension that it would be
harmful of injurious to continue cohabitation with another
spouse. Hence, it is not necessary to establish physical
violence. Continued ill-treatment, cessation of marital
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intercourse, studied neglect, indifference may lead to
inference of cruelty.
69. The word “cruelty” under Section 13(1)(i-a) of the
Act has got no static connotation, and therefore, gives a very
wide discretion to the Court to apply it liberally and
contextually. What is cruelty in one case may not be the
same for another and has to be applied from person to
person while taking note of the attending circumstances.
Harm or injury to health, reputation, the working-career or
the like, would be important considerations in determining
whether the conduct of the defending spouse amounts to
cruelty. It has to be shown that the defending spouse has
treated him with cruelty to cause reasonable apprehension
in his/her mind that it will be harmful or injurious to live
with the contesting spouse.
70. Further, it requires to refer herein that the word
„desertion‟ has been given in Explanation to Section 13 (1)
wherein it has been stated that “the expression desertion
means the desertion of the petitioner by the other party to
the marriage without reasonable cause and without the
consent or against the wish of such party, and includes the
wilful neglect of the petitioner by the other party to the
marriage, and its grammatical variations and cognate
expressions shall be construed accordingly.
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71. 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 wish of such party, and includes
the wilful neglect of the petitioner by the other party to the
marriage, and its grammatical variations and cognate
expressions shall be construed accordingly.
72. 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.”
73. The legal position has been admirably summarised
in paras-453 and 454 at pp. 241 to 243 of Halsbury’s Laws
of England (3rd Edn.), Vol. 12, in the following words:
“In its essence desertion means the intentional
permanent forsaking and abandonment of one
spouse by the other without that other’s consent,
and without reasonable cause. It is a total
repudiation of the obligations of marriage. In view
of the large variety of circumstances and of modes
of life involved, the Court has discouraged40
2026:JHHC:19271-DBattempts at defining desertion, there being no
general principle applicable to all cases.
74. 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.
75. 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.
76. Desertion as a ground of divorce differs from the
statutory grounds of adultery and cruelty in that the offence
founding the cause of action of desertion is not complete,
but is inchoate, until the suit is constituted, desertion is a
continuing offence.
77. It is, thus, evident from the aforesaid reference of
meaning of desertion that the quality of permanence is one
of the essential elements which differentiate desertion from
wilful separation. If a spouse abandons the other spouse in
a state of temporary passion, for example, anger or disgust,
41
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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.
78. 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.
79. The Hon’ble Apex Court in Debananda Tamuli vs.
Kakumoni Kataky, (2022) 5 SCC 459 has considered the
definition of „desertion‟ on the basis of the judgment
rendered by the Hon’ble Apex Court in Lachman
Utamchand Kirpalani v. Meena, AIR 1964 SC 40 which
has been consistently followed in several decisions of this
Court.
80. The law consistently has been laid down by this
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 there is an
intention on the part of deserting spouse to bring the
cohabitation to a permanent end. In other words, there
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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.
81. This Court, based upon the aforesaid discussions
on the issue of cruelty and desertion, has gone through the
testimony of witnesses and found from the testimony of
appellant‟s witness and testimony of the appellant-husband
that her wife exerted pressure to oust his parent and with
the help of family members the appellant and his parents
were ousted from their own house thereby they are forced to
live in a rented house. Whereas, the testimony of the
respondent-wife is that since her husband who is working
in the State Bank of India far from his native place as such
he took a room on rent in nearby place and from there he
used to go to office and denied the allegation of ousting her
in-laws from the house.
82. Pleadings available on record, it is evident that only
allegation has been made by the husband that her wife has
illegally ousted from his parental house no suit for
possession has been filed or filed any complaint before the
police, as per the statement made at paragraph 18 of the
deposition of the appellant itself. Therefore, also the
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allegation which has been leveled has no leg to stand to
prove the element of cruelty.
83. So far as the allegation of administering poison to
the appellant-husband by the respondent-wife is concerned,
in cross-examination, he failed to say any specific date and
admitted that for this also he did not file any police
complaint. Further, in cross-examination he admitted that
he was administered excessive sleeping pills for which he
did not take any medical aid. Therefore, this ground is also
not sustainable.
84. On the other hand, the respondent-wife has
deposed that when she gave birth to two female children
she was subjected to torture and thereafter when in the
year 2003 when she gave birth to a male child she was
tortured by saying that son is not born out of the wedlock
with her husband, and allegation on her character was
leveled and the appellant-husband had filed the divorce suit
in the year 2012. She has further deposed that she always
wants to stay with her husband and for that she filed a case
of restitution of conjugal right bearing case no. 189 of 2012.
85. So far as the issue of desertion is concerned,
allegation has been made by the appellant-husband that
since year 2005 he is living separately from his wife but
contrary to it Malti Devi-respondent and their daughter has
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said that appellant is visiting her regularly, having relation
with her.
86. Furthermore, as per the testimonies of the
witnesses including the appellant-Petitioner, he is providing
educational expenses to his daughters, so from the conduct
of petitioner, it transpires that he is taking keen interest in
the welfare of his children and he is in visiting term with
them as per the statement of his daughter.
87. The OPW 2, who is the daughter of the couple, has
not supported the fact of cruelty by her mother against her
father, who is a common person between them. She has
also narrated about the neglect by her father in her
examination-in-chief. She further said in para 11 that her
father wants to solemnize 2nd marriage with another lady.
He also wants to expel them from the house of village Koto.
She further said that her mother has never administered
poison to her father.
88. OPW 3 in para 27 of her cross-examination has said
that Birendra is visiting the house of Malti Devi and she has
also supported the case of OP regarding cruelty against her
by her husband and in-laws. She has also said most of the
things regarding dispute of house situated in village Koto
between the petitioner and OP.
89. OPW 4 has also said in her examination in chief
regarding cruelty against the OP by the petitioner and her
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relatives and about her expulsion from the matrimonial
house. She has proved the petition of Misc. Case No. 3/14
which is filed for restitution of Case No. 189/12 related to
restitution of conjugal right filed by Malti Devi.
90. So, the allegation of cruelty leveled against the
respondent by the appellant-petitioner could not be proved
by him against the respondent.
91. So far as desertion for continuously for two years is
concerned, this fact has come into evidence that the
appellant has visited the house regularly where the
respondent-wife resides Devi, which is situated in village
Koto, where she is living with her children. So the ground of
desertion for two years immediately preceding the
presentation of suit also failed.
92. The learned family court taking these facts into
consideration has come to the conclusion that the
appellant-petitioner is not entitled for a decree of divorce,
which cannot be faulted with.
93. This Court, after discussing the aforesaid factual
aspect along with the settled legal position as discussed and
referred hereinabove in the preceding paragraphs and
adverting to the consideration made by the learned Family
Judge in the impugned judgment has found therefrom that
the issue of element of cruelty and desertion by the
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appellant-husband has been properly considered by the
learned Family Judge.
94. Accordingly, issues as framed by this Court are
decided against the appellant-husband and in favour of the
respondent-wife
95. This Court, on consideration of the aforesaid
discussion, is of the view that the impugned judgment and
decree passed by the learned Family Judge is not coming
under the fold of perversity, since, the conscious
consideration has been made to the evidences available on
record, as would be evident from the impugned judgment.
96. Accordingly, the instant appeal stands dismissed,
and the impugned judgment dated 26.04.2018 and decree
dated 07.05.2018 (decree signed on 07.05.2018), passed by
the learned Principal District Judge-cum- Family Judge,
Ramgarh in M.T.S. No. 21 of 2012, requires no interference.
97. Pending interlocutory application(s), if any, also
stands disposed of.
I Agree (Sujit Narayan Prasad, J.)
(Sanjay Prasad, J.) (Sanjay Prasad, J.)
30th June, 2026
A.F.R
Alankar/-
47
