Sanjeev Chokhani vs Garima Chokhani
2023 Latest Caselaw 2279 Jhar

    IN THE HIGH COURT OF JHARKHAND AT RANCHI
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First Appeal No. 23 of 2019

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Sanjeev Chokhani, Aged about 48 years, Son of Sri Hari Prasad Chokhani, Resident of D/80, Ashok Vihar, Kadru, P.O.-Hinoo, P.S. Argora, District-Ranchi.

.... Appellant Versus Garima Chokhani, Wife of Sanjeev Chokhani, Resident of D/80, Ashok Vihar, Kadru, P.O.-Hinoo, P.S. Argora, District-Ranchi. ... .... ... Respondent

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI .....

For the Appellant : Ms. Rashmi Kumar, Advocate For the Respondent : Mr. Sudardhan Srivastava, Adv Mr. Sunil Singh, Advocate .....

C.A.V. on 24/06/2023 Pronounced on 13/07/2023 Per Sujit Narayan Prasad, J.:

The instant appeal, under Section 19(1) of the

Family Courts Act, is directed against judgment and

decree dated 05.12.2018 passed by learned Principal

Judge, Family Court, Ranchi in Original Suit (M.T.S.) No.

518 of 2015 whereby and whereunder the suit filed by the

petitioner-husband, appellant herein, under Section 13 of

the Hindu Marriage Act, 1955 for decree of divorce has

been dismissed.

2. The facts in brief are that the appellant-

husband married with respondent-wife on 18.06.1997 at

Agrasen Bhawan, Ranchi as per Hindu Customs, rites and

rituals. Out of their wedlock, they have two daughters,

namely, Hansika Chokani-the elder one and the younger

is Nikki Chokhani.

It is the case of the appellant-husband, as per

the pleading made in plaint, that the respondent-wife is a

bad tempered lady of rude behavior and since marriage

she started quarreling and misbehaving with the appellant

and his parents. Due to such behavior of the respondent,

the appellant had to live separately from his parents for

the last ten years. It is alleged by the appellant-husband

that on many occasions the respondent insulted the

appellant in social gathering and functions. It is further

alleged that the respondent, without any rhyme and

reason, deserted the appellant with the two daughters and

went to her parental home on 08.04.2013 and returned

home after more than two years i.e., on 18.06.2015. After

her return, the appellant was threatened not to interfere

with the day to day work of respondent otherwise she will

file criminal case against him (appellant). The petitioner-

appellant left the house, his parents reported the incident

to Argora Police Station. On 02.11.2015 for a petty matter

over demand of bucket by the respondent she was asked

to wait for five minutes, she became aggressive and

attempted to commit suicide by jumping over from

Balcony of first floor but by intervention of well-wishers

her life could be saved.

It has been stated that in the backdrop of these

tortures and atrocities meted out to the petitioner-

husband it is not possible for the appellant-husband to

live with respondent, therefore, the suit for divorce was

filed by the appellant-husband on the ground of „cruelty‟

and „desertion‟, which was registered as Original Suit

(M.T.S.) No. 518 of 2015, and decided ex-parte vide order

dated 21.06.2016 by passing the decree of judicial

separation.

The ex-parte decision of judicial separation was

challenged before this Court by the respondent-wife by

filing First Appeal No. 142 of 2016, which was decided

vide order dated 27.02.2017, whereby the Co-ordinate

Bench of this Court set aside the ex-parte judgment and

decree and remanded the matter back for deciding the suit

afresh.

The learned Family Court in terms of order

dated 27.02.2017 passed in F.A. No. 142 of 2016 has

revived the proceeding for the purpose of passing fresh

order. Pursuant thereto, the respondent-wife appeared

and filed written statement and contested the suit by

adducing oral evidence and cross-examined the witnesses

produced by the appellant-husband. The learned Family

Court, Ranchi on due appreciation of the evidence did not

find any ground of „cruelty‟ and „desertion‟ and accordingly

dismissed the suit by answering the issues framed by

Court against the appellant-husband, against which, the

present appeal has been filed.

3. Ms. Rashmi Kumar, learned counsel for the

appellant-husband has assailed the impugned judgment

on the ground of perversity and non-consideration of vital

issue of the conduct of the respondent due to which the

appellant is being subjected to cruelty as also there is

non-consideration of the fact that the respondent-wife is

living apart and the appellant-husband having no marital

relationship with her since long and hence submission

has been made that it is a fit case where ground of

desertion is well available but the same has not been

considered in right prospective and the learned Family

Court, Ranchi has come to the conclusion that the ground

of divorce i.e., „cruelty‟ and „desertion‟ is not available.

Learned counsel for the appellant, therefore,

has contended that the impugned judgment suffers from

material irregularity and hence not sustainable in the eye

of law.

Learned counsel for the appellant has referred

the testimony of witnesses as also the cross-examination

and has tried to impress upon the Court that whatever

has been deposed by the appellant in the testimony in the

examination-in-chief the same remain in-tact and as such

negating the ground of „desertion‟ for grant of decree of

divorce as per the conclusion arrived at by the learned

Family Court cannot be said to be justified and in that

view of the matter the impugned judgment is fit to be set

aside.

Learned counsel for the appellant-husband

apart from the aforesaid argument has taken the ground

that since it is a clear-cut case of desertion and the wife is

living separately having no marital relation, therefore,

there is no chance of re-union and the marriage has

become irretrievable. Therefore, the decree of divorce on

these grounds ought to have been considered by the

learned Family Court but having not done so the

impugned judgment suffers from illegality.

In support of her argument, learned counsel for

the appellant-husband has relied upon the judgment

rendered by Co-ordinate Division Bench of this Court in

Dev Das Dey Vs. Smt. Shipla Devi [2022 (2) JBCJ

744(HC)]; Hon‟ble Apex Court in Naveen Kohli vs. Neelu

Kohli [(2006) 4 SCC 558]; High Court of Punjab and

Haryana in Seema Singh Vs. Sanjay Kumar [FAO

1369/2017.

4. Per contra, Mr. Sudarshan Srivastava, learned

counsel appearing for the respondent-wife has submitted,

by defending the impugned judgment and decree passed

by the learned Family Judge, that the learned Family

Judge has appreciated the fact in right prospective by

taking into consideration the pleadings made in the plaint

wherein the case of the appellant all along was of ill

behavior and ill tempered behavior of the wife but the

aforesaid fact has not been corroborated since the mother

of the appellant, P.W. 1-Sumitra Devi, has deposed in the

cross-examination that she is not knowing what has been

written in the deposition on oath as it is the appellant (his

son) who has got the statement prepared and she has only

put her signature. Therefore, the submission has been

made that the testimony of P.W. 1-Sumitra Devi (mother

of the appellant) is having no admissibility in the eye of

law since witness concerned herself has disclosed that she

has not gone through the contents what has been typed

by way of deposition on oath.

It has further been submitted that the appellant

has tried to make out a new case, after order of remand

being passed by the Co-ordinate Bench of this Court vide

order dated 27.02.2017 in F.A. No. 142 of 2016, by

bringing a new ground of her wife being „characterless‟.

The learned counsel in order to demonstrate the aforesaid

argument has referred the statement made in the plaint

wherein there is no statement regarding the allegation of

„characterless‟ having illicit relation with another person,

save and except the ground of „cruelty‟ and „desertion‟ has

been tried to be made on the basis of bad tempered and a

lady of rude behavior as would appear from paragraph 3 of

the plaint coupled with paragraph 12 and 13 of the plaint.

Learned counsel for the respondent-wife,

therefore, has submitted that the ground which has been

taken and the pleading which was there in the plaint at

the time of filing of the plaint besides that there cannot be

a new ground in order to prove the ground of cruelty. The

ground of the wife being „characterless‟ has been taken

even though there was no pleading to that effect was made

in the plaint therefore, the learned trial Court has refused

to accept by giving a specific finding in the impugned

order that the appellant is trying to make out a new case.

Further, the learned court has also not found

any substance since no documentary evidence has been

brought on record in support of fact about „illicit relation‟

or respondent-wife being of „characterless‟ lady.

It has also been submitted that position as

existing is that both the appellant and wife are living in a

room and having marital relationship as has come in the

testimony of the respondent-wife and elder daughter,

Hansika Chokhani (R.W. 3) born out of wedlock of

appellant and respondent. The contention, therefore, has

been raised that the learned trial Court after taking into

consideration the testimony of the respondent coupled

with the testimony of the daughter of appellant and

respondent has come to conclusive finding of non-

availability of the ground of cruelty.

It has been submitted that so far as the ground

of „desertion‟ is concerned the same has also been

disbelieved by taking into consideration the testimony of

Hansika Chokhani, the daughter (RW 3) and the

respondent (RW 1) including the mother-in-law of the

respondent (PW 1) who has deposed before the Family

Court (trial Court) that the respondent is living in the

house where her in-laws are residing along with husband

and they are living in the same room.

The learned trial Court, therefore, has also

disbelieved the ground of „desertion‟.

Learned counsel for the respondent on the

premise of aforesaid argument has submitted that the

learned trial Court has taken into consideration the entire

aspect of the matter in right perspective and on the basis

of non-availability of any ingredient of „desertion‟ has

refused to pass the judgment and decree of divorce by

impugned order dated 05.12.2018, therefore, submission

has been made that the same may not be interfered with

by re-appreciating the evidence since the jurisdiction of

the appellate Court, so far as judgment/decree passed by

trial Court is concerned, is only to be interfered with if the

finding recorded by the trial Court suffers from perversity.

5. We have heard learned counsel for the parties,

perused the documents available on record as also the

finding recorded by learned trial Court in the impugned

judgment. This Court has called for copy of Lower Court

Records as such this Court has also gone through the

testimony of the witnesses and other available documents

in the Lower Court Records.

6. This Court, before proceeding to examine the

legality and propriety of the impugned judgment, deems it

fit and proper to refer the undisputed fact herein.

7. The appellant-husband has filed a suit for

divorce under Section 13 of the Hindu Marriage Act, 1955

on the ground of „cruelty‟ and „desertion‟. The suit

proceeded ex-parte, however, when the respondent-wife

came to know about the pendency of the suit, she put her

appearance on the day when judgment was passed on

21.06.2016 and made a prayer for providing opportunity

of hearing to her but such opportunity was not given and

the judgment/decree of divorce was passed for judicial

separation vide judgment dated 21.06.2016 by allowing

the suit in part.

Aggrieved thereof, the respondent-wife preferred

appeal before this Court by filing First Appeal No. 142 of

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2016 and the Co-ordinate Division Bench of this Court

allowed the said appeal by setting aside the

judgment/decree dated 21.06.2016 passed by the learned

Family Court vide order dated 27.02.2017 and the matter

was remanded before the Court below for passing order

afresh.

The operative part of the aforesaid judgment is

quoted as under:

"7. Having heard counsel for the appellant and the respondent in person, we are of the considered view that the Court below has proceeded in the matter in a hot haste. The record itself shows that on 2.6.2016, both the witnesses of the petitioner respondent were examined and the case was fixed for arguments on 20.6.2016. What happened in the Court on 20.6.2016 is not on record, as there is no order-sheet of 20.6.2016. Thereafter there is the order-sheet of 21.6.2016, in which, only it is stated that the case was fixed for Judgment and the Judgment was delivered. As stated earlier, the Lower Court Record shows that the case was never fixed for Judgment, rather on 21.6.2016, the Judgment was passed by the Court below, stating that it was fixed for Judgment on that date. The fact, however, remains that on 21.6.2016 itself, the appellant appeared in the Court below and filed THE application stating that she had learnt about the case only the previous day and she intended to contest the case.

8. In that view of the matter, the Court below ought to have given the opportunity to the appellant for contesting the case, even though the case might have been fixed for Judgment. As stated above, we have been informed by the respondent himself, that when the application was filed by the appellant in the Court below, the judgment had neither been typed nor been signed by the Presiding Officer of the Court. Indeed the Court below did not even thought proper to mention in the order-sheet that the such application was filed in the Court, whether prior or after delivering the Judgment.

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9. In that view of the matter, we are of the considered view that the impugned Judgment and Decree, passed by the Court below cannot be sustained in the eyes of law and the Court below ought to have given sufficient opportunity to the appellant herein, to contest the suit, particularly when she had appeared and prayed for the same.

10. In view of the aforementioned discussions, the impugned Judgment and Decree dated 21st of June, 2016, in Original Suit (M.T.S.) No. 518 of 2015, passed by the learned Principal Judge, Family Court, Ranchi, are hereby, set aside and the matter is remanded back to the Court below for deciding the suit afresh in accordance with law.

11. We fix the 20th of March, 2017 to be the date, on which, both the parties shall appear in the Court below, where after the matter shall proceed in accordance with law.

12. This appeal is, accordingly, allowed in the admission stage itself, with the directions as above. Let the Lower Court Record be sent back forthwith with a copy of this Judgment."

The suit being Original Suit (M.T.S.) No. 518 of

2015 was revived. The appellant-husband filed evidence

on oath. Likewise, the respondent-wife has filed written

statement and cross-examined the appellant.

Learned trial Court on consideration on rival

submissions advanced on behalf of parties has passed the

impugned judgment refusing to grant the decree of

divorce, which is the subject matter of present appeal.

8. From perusal of record, it appears that two

grounds have been taken for grant of decree of divorce,

i.e., the ground of „cruelty‟ and „desertion‟ as would appear

from the pleading made in the plaint.

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9. The ground of „cruelty‟ has been tried to be

substantiated by making pleading in the plaint in

particular at paragraph 3 that the respondent-wife is a

bad tempered and a lady of rude behavior and since

marriage she started quarreling and misbehaving with the

petitioner-husband and his parents. At paragraph 4 of the

plaint, it has been pleaded that the petitioner-husband

has tried his level best to find an amicable solution to the

situation but due to adamant behavior of the respondent-

wife she was unable to cope up and adjust with the

parents of the appellant then the appellant had to part

with his parents and since last ten years he is living

separately from his parents.

It has also been pleaded that the wife has a

dominant and aggressive personality and on very petty

matters quarrels with the petitioner and goes to the extent

of using abusive language and physical force to get her

demand fulfilled.

It has been submitted that the respondent on

many occasions insulted the appellant in social gathering

and family functions.

10. The ground of „desertion‟ has also been tried to

be made out since the appellant allegedly due to ill

behavior of the respondent is living separately since last

ten years.

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11. Learned Family Court/Trial Court on the basis

of pleading available on record with regard to „cruelty‟ and

„desertion‟ passed the judgment of judicial separation vide

order dated 21.06.2016 but the same was quashed by this

Court vide order dated 27.02.2017 passed in F.A. No. 142

of 2016 by remitting the matter before the learned Family

Court for passing order afresh.

12. When the matter was revived for the purpose of

passing fresh order the evidence on oath was filed by the

appellant-husband (P.W. 3) on 04.08.2017 from which it

would be evident that the ground of ill-behavior has been

reiterated in order to corroborate the aforesaid pleading as

has been made in the plaint but at paragraph 6 of the

evidence on oath a new ground has been taken that

character of the respondent-wife (Garima Chokhani) is

also not good and before marriage abortion was done.

It has been stated at paragraph 7 that after

knowing about the aforesaid fact the appellant has left to

live with her and for last 13 years he is living separately

having no physical relationship with the respondent.

The respondent has cross-examined the

appellant, who at paragraph 34 has stated that the

respondent is still living in the second floor of the same

house i.e., D/80 Ashok Vihar, Ranchi and the appellant is

living at first floor since 18.06.2015.

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It has been stated by him in the cross-

examination at paragraph 39 that in the address column

of the school identity card of Hansika Chokhani, the

daughter of the appellant, reference of House No. D-80,

Ashok Vihar, is there.

The fact about the character of the respondent-

wife has been corroborated, as would appear from

paragraph 60 of the cross-examination. He has also

deposed at paragraph 80 that the respondent used to

raise objection in establishing the physical relationship

since she was attracted with another person, however, it

has been admitted by him that this fact has not been

stated in the plaint rather it has been stated on oath in

the deposition.

13. Sumitra Devi, the mother of the appellant-

husband, was examined as P.W. 1, although she has

supported the version of the appellant in the examination-

in-chief but in the cross-examination she has stated, as

would appear from paragraph 14, that she has not read

the evidence on oath and when it has been filed she

cannot say. She has also stated at paragraph 15 that the

aforesaid evidence on oath must have been prepared by

her son.

14. Mr. Hari Prasad Chokhani, the father of the

appellant, was examined as P.W. 2 on behalf of appellant.

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He has also supported the ground of cruelty, as per the

pleading made in the plaint but in the cross-examination

he has accepted that the statement made at paragraph 6

and 7 of the examination-in-chief wherein statement has

been given about the quarrel by the respondent with the

family members of the appellant but no complaint was

ever made, as would appear from the statement made at

paragraph 34 of the cross-examination.

He has also deposed that the two daughter of

the respondent live with them in the second floor and they

used to meet him and since he is the grand-father of

Hansika Chokhani and Nikki Chokhani, the daughters

born out of the wedlock of appellant and respondent, he

used to take care of them.

15. The respondent-wife has alleged that the story

of getting divorce has started only after the birth of second

daughter.

The respondent has filed evidence on oath

stating therein at paragraph 6 and 7 that due to birth of

two daughters the mother-in-law and sister-in-law

(jethani) used to pressurize her husband for solemnization

of second marriage and for the aforesaid purpose even the

advertisement was given in the matrimonial site known as

„Simply Matrimony'.

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She has stated that at paragraph 9 that till

January, 2018 she used to live along with her husband in

a room and has established physical relationship while

their daughter used to live in the second room and the

mother-in-law and father-in-law live in the first floor.

At paragraph 16, she has deposed that her

mother-in-law used to put pressure upon her husband for

second marriage stating that her husband will be deprived

of the property if he does not solemnize second marriage.

In her cross-examination, at paragraph 21 she

has deposed that after the case of divorce has been lodged

by her husband, she filed four cases against her husband

because of torture made by them.

She was cross-examined and it is evident from

the statement recorded therein that she filed a

maintenance case since the appellant is not giving money

for sustaining the life of the respondent along with her two

daughters. She has stated at paragraph 29 that after the

birth of second daughter her husband and mother-in-law

and father-in-law had started torturing her, however, no

case was instituted since she was concerned for the

dignity and prestige of the family. She has also stated at

paragraph 32 that in the Maintenance Case No. 289 of

2017 statement was given by her that time and again she

was subjected to abortion but case was not lodged to that

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effect as she had concern of the prestige of the family. She

has stated at paragraph 54 that since the CCTV was

installed in her room as such the issue of establishing

physical relationship can be established form the

recording so made in the CCTV Camera. She has also

stated that the appellant has opened a joint account with

her.

16. One Prem Kumar Agarwal has been examined

as witness no. 2 on behalf of respondent-wife, who has

supported the version of the respondent and has stated

that there was cordial relation in between the appellant

and respondent and he did not find any reason of divorce

in between them. He has further deposed that the

respondent is a woman of good character. At paragraph 16

he has deposed that appellant‟s mother used to put

pressure upon his son for second marriage due to not

having „male child‟ [son] to them, as such the appellant

was forced to obey their parents.

He has been cross-examined but he remained

consistent. He has stated at paragraph 17 denying all the

allegations leveled by the appellant on the respondents

that she used to insult the parents of appellant and

deposed that the reason for torture is the birth of the

second daughter and not the son. He has answered at

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paragraph 31 that abortion was conducted as perhaps the

feotus was of daughter.

17. Hansika Chokhani, the daughter of the

respondent, has been examined as R.W. 3. She has

deposed of having good relationship with grandfather and

grandmother. She has stated that her mother (respondent)

used to take care of grandfather and grandmother. She

has supported the version of the respondent-wife

regarding installation of CCTV in the room and bed-room

as also her father used to torture her by asking her to

leave the house.

She has deposed in the cross-examination at

paragraph 23 that her father used to search bride for

second marriage at social media and matrimonial sites for

the reason that they are having no brother.

At paragraph 31 of the cross-examination, she

has deposed that her grandmother, aunty (father‟s sister-

Buwaji) and other family members used to put pressure

upon her father for second marriage and for that purpose

they want that her mother may go her maternal house and

on refusal her mother was subjected torture and

threatening was given that they will burn by acid to her

mother (respondent).

She has deposed at paragraph 45 that her

mother and father lives in a room of the second floor in

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the same building and in the second room she along with

her sister used to live.

18. The learned trial Court after taking into

consideration the aforesaid testimony has formulate five

issues which is reproduced as under:

I.Whether respondent-wife has committed cruelty with

petitioner?

II.Whether respondent has deserted the petitioner for more

than two years before filing of the present petition?

III.Whether the petitioner is taking advantage of his own

wrong?

IV.Whether the petitioner is entitled to a decree of divorce

on the grounds pleaded in the petition?

V.Whether the petitioner is entitled to get any equitable

relief/reliefs under matrimonial law?

19. Out of five issues, first three issues were taken

up together and after taking into consideration the

testimony of the witnesses, in particular the testimony of

petitioner-appellant, namely, Sanjeev Chokhani, who has

tried to make out a case of „cruelty‟ and „desertion‟, the

learned trial Court has disbelieved the ground so made by

the petitioner-appellant on the ground of vague allegation

of „cruelty‟ and „desertion‟.

The learned Court did not find any substance in

the allegation that the respondent herself deserted the

petitioner-appellant rather it appears to the learned trial

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Court that the appellant himself has deserted his wife as

per the statement made by the appellant that when it was

known to him that the respondent is a characterless lady

and he chose to live with her.

The learned trial court has also dealt with the

issue of the respondent being a lady of loose character and

made an observation that the aforesaid ground was not

pleaded in the plaint at the time of filing of the suit rather

when the matter was remanded by this Court a new plea

of loose character of the respondent-wife has been taken.

The learned trial Court, on the basis of material

available before it, has come to the conclusion that the

nature of allegation of respondent being a lady of loose

character was to be proved by the appellant but no

substance was produced in this regard and hence the

allegation of loose character has been considered to be

vague and wild allegation made without any basis.

The learned trial Court, therefore, has come to

the conclusion of having no substance of „cruelty‟ and

„desertion‟ and accordingly dismissed the suit.

20. The allegation of illicit relationship, has been

taken as a ground, although not pleaded, but it is

gathered from the testimony of the P.W. 3 that the

appellant himself has failed to produce any cogent

evidence.

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Law is well settled that the allegation of illicit

relationship is required to be established by leading

evidence if the same is not established then in that

circumstance it will be said to be cruelty meted out by the

person who is making such allegation against the another.

The Hon‟ble Apex Court, while dealing with the

matrimonial dispute in Alpaben Ambalal Patel Vs.

Ashok Kumar Chanulal Patel [(2022) Supreme (Guj)

926, has been pleased to hold that false accusation

against the spouse of having an illicit relationship is

cruelty and "the feeling of deep anguish, disappointment,

agony and frustration of the husband would be obvious."

Likewise, herein the husband, the appellant

herein, has leveled the allegation of illicit relationship of

respondent-wife but no evidence has been produced in

support of such allegation and hence it is not the

appellant-husband rather it is respondent-wife who will be

said to be suffer from feeling of deep anguish,

disappointment, agony and frustration.

Herein, in the given facts of the case, the

learned trial Court after considering the testimony of

P.W.3 and the respondent-wife as also the daughter,

namely, Hansika Chokhani has come to the conclusive

finding that the allegation of such illicit relationship

cannot be said to be established on the basis of vague and

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wild allegations. Although the aforesaid fact of having

illicit relationship of the respondent was not the pleading

in the plaint at the time of filing of the suit rather the

same has been taken as ground in the deposition after the

order of remand has been passed by this Court for passing

fresh order.

21. The question arises that when the specific

ground of cruelty has been made regarding ill behavior

and bad tempered of the respondent then the

petitioner/plaintiff (appellant herein) can be allowed to

make out a new case by making statement in the

deposition about illicit relationship of respondent-wife.

Law is well settled that there cannot be any

deviation from the pleading made in the plaint and the

pleading made in the plaint is to be substantiated by the

evidence subject to consideration of objection by the

defendant for the purpose of its consideration by the

concerned Court.

But herein the ground of illicit relationship has

been taken as a new ground even though the same has

not been pleaded and therefore, a vital opportunity to

rebut the said ground has been taken away since if the

aforesaid ground had been taken it would have been

rebutted by the respondent in the written statement.

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However, herein the appellant has not been able

to substantiate the allegation of illicit relationship since he

has not come out with specific evidence in this regard,

rather, the cruelty has been shown to be on part of

respondent.

Further, the respondent has also stated in her

testimony that the husband has installed CCTV Camera in

the bed room and other places inside the house from

which it would be evident that they live in a room as

husband and wife. The aforesaid aspect of the matter

has also been corroborated by the daughter of the

appellant/respondent.

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.

The cruelty has also been defined in the case of

Shobha Ravi Vs. Madhukar Reddi [(1988) 1 SCC 105],

wherein the wife alleged that the husband and his parents

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demanded dowry. The Hon‟ble Apex Court emphasized

that "cruelty" can have no fixed definition.

According to the Hon'ble Apex Court, "cruelty"

is the "conduct in relation to or in respect of matrimonial

conduct in respect of matrimonial obligations". It is the

conduct which adversely affects the spouse. Such cruelty

can be either "mental" or "physical", intentional or

unintentional. For example, unintentionally waking your

spouse up in the middle of the night may be mental

cruelty; intention is not an essential element of cruelty but

it may be present. Physical cruelty is less ambiguous and

more "a question of fact and degree."

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."

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.

- 25 -

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".

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 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.

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,

- 26 -

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.

22. This Court, after having discussed the

interpretation of the word „cruelty‟, as has been

interpreted by Hon‟ble Apex Court in the judgment

referred hereinabove, is coming back to the testimony of

witnesses in order to scrutinize the legality and propriety

of the impugned order has found therefrom that on the

allegation of being ill-tampered or bad behavior of the

respondent, the appellant has failed to prove the same

apart from the allegation of illicit relationship since for the

purpose of proving the allegation of cruelty the cogent

reason is to be there to prove the allegation of cruelty

making the same as a ground for divorce.

This Court, after going through the testimony of

the witness, particularly the cross-examination part of the

mother of the appellant (P.W. 1), the respondent (RW 1),

Prem Kumar Arawal (RW 2), RW3-Hansika Chokhani

(daughter), has found that in the impugned judgment the

trial Court has also considered the issue of cruelty and

after taking into consideration the definition of cruelty has

come to the finding that to constitute cruelty the finding

- 27 -

should be grave so as to come to the conclusion that the

petitioner spouse cannot be reasonably expected to live

with other spouse.

The learned trial Court has taken reference of

the judgment rendered by Hon‟ble Apex Court in the case

of Vishwanath Sitaram Agrawal Vs. San Sarle

Vishwanath Agrawal [(2012) 7 SCC 288] and A.

Jayachandra Vs. Aneel Kaur [2005 AIR (SC) 534] and

passed the impugned judgment and decree whereby and

whereunder the suit filed by the petitioner-husband,

appellant herein, under Section 13 of the Hindu Marriage

Act, 1955 for decree of divorce has been dismissed.

23. This Court on the basis of discussion made

hereinabove and considering the definition of „cruelty‟ is of

the view that finding so recorded on the allegation of

„cruelty‟ by the learned trial Court according to our

considered view, cannot be said to suffer from infirmity so

as to call for interference by this Court.

24. The second ground for divorce is desertion. This

Court before proceeding to examine the finding recorded

by the trial Court on the issue of desertion, deems it fit

and proper to consider the definition of „desertion‟, as has

been defined under Section 2(b) of the Act, 1955, which

means "desert means to desert without reasonable cause

- 28 -

and without the consent of and against the will of the

spouse".

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."

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 discouraged attempts at defining desertion, there being no general principle applicable to all cases.

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

- 29 -

the deserting party. The fact that a husband makes an

allowance to a wife whom he has abandoned is no answer

to a charge of desertion.

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

three years immediately preceding the presentation of the

petition or, where the offence appears as a cross-charge, of

the answer.

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.

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, 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.

- 30 -

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 form

the necessary intention aforesaid. In such a situation, the

party who is filing for divorce will have the burden of

proving those elements.

Recently also, 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 [Lachman

Utamchand Kirpalani v. Meena, AIR 1964 SC 40]

which has been consistently followed in several decisions

of this Court.

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 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

- 31 -

the conduct of the deserted spouse should not give a

reasonable cause to the deserting spouse to leave the

matrimonial home.

The view taken by the Hon'ble Apex Court has

been incorporated in the Explanation added to sub-section

(1) of Section 13 by Act 68 of 1976. The said Explanation

reads thus:

13. Divorce.--(1) ...

Explanation.--In this sub-section, 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."

The learned trial Court has considered the

testimony of witnesses and has found that the witnesses

examined have remained consistent with the respondent-

wife who is residing in the same house and even the

petitioner is also said to be residing along with wife and

children in the same house.

            The aforesaid finding has come              from the

testimony     of   respondent-wife,      who   has   deposed     at

paragraph 8 that till January, 2018 she used to live along

with her husband in a room and has established physical

relationship with her husband, the appellant herein, while

their daughter used to live in the second room. In cross-

- 32 -

examination, she has stated at paragraph 54 that since

the CCTV was installed in her room as such the issue of

establishing physical relationship can be established from

the recording so made in the CCTV Camera, which has

been installed in her house.

Hansika Chokhani-RW. 3, the daughter of the

appellant has deposed at paragraph 45 that her mother

and father lives in a room of the second floor in the same

building and in the second room she along with her sister

used to live.

The appellant at paragraph 34 of his testimony

has stated that the respondent is still living in the second

floor of the same house i.e., D/80 Ashok Vihar, Ranchi. It

has been stated by him in the cross-examination at

paragraph 39 that in the address column of the school

identity card of Hansika Chokhani, the daughter of the

appellant, reference of House No. D-80, Ashok Vihar, is

there.

Hari Prasad Chokhani, P.W. 2, father of the

appellant, has also deposed that the two daughter of the

respondent live with them in the second floor and they

used to meet him and further since he is the grand-father

of Hansika Chokhani and Nikki Chokhani, the daughters

born out of the wedlock of appellant and respondent, he

used to take care of them.

- 33 -

The learned trial Court has considered the

testimony of witnesses, in particular, the testimony of

Garima Chokhani, the respondent herein, who has stated

that she is always fulfilling the duty as wife and daughter-

in-law in the family and even there is continuous marital

relationship between the appellant and the respondent but

only in order to get rid of her, suit was filed. No question

has been put in rebuttal to the said statement on behalf of

the appellant that she deserted her husband and nothing

has been elicited controverting her assertion that they

have still marital relationship as husband and wife.

On the other hand, the respondent-wife has

specifically stated in her examination in chief that she is

living with her husband (appellant) in the same room but

the aforesaid fact has not been controverted by the

appellant.

The trial Court has considered the testimony of

the own daughter of the appellant, namely, Hansika

chokhani, who is major girl of about 20 years and has

supported the fact that the respondent-wife are living

together with appellant-husband in the same room. In the

cross-examination this fact has not been controverted and

as such there is nothing to falsify the said statement.

The fact about living in the same house cannot

be disputed. Even though the respondent has made

- 34 -

specific statement in her examination-in-chief about living

in the same room with appellant but no rebuttal of the

said question has been put. She has also stated of having

marital relationship with husband and further deposed

that she will also substantiate the aforesaid fact from the

video clipping as per recording of CCTV which has been

installed in his room also apart from other places inside

the house.

25. This Court after having discussed the factual

aspect with the legal position is required to refer herein

under which circumstance the judgment can be interfered

with.

26. The position of law is well settled that the

judgment can be interfered with if the judgment suffers

from perversity and perverse finding is one if it is arrived

at without any material or if it is arrived or inference is

drawn without any material, which would not have been

accepted or relied upon by reasonable opportunity

conversant with the law.

Reference in this regard be made to the

judgment rendered by the Hon'ble Apex Court in Kuldeep

Singh vs. Commissioner of Police and Ors., (1999) 2

SCC 10 wherein it has been held that "a broad distinction

has, therefore, to be maintained between the decisions

which are perverse and those which are not. If a decision is

- 35 -

arrived at on no evidence or evidence which is thoroughly

unreliable and no reasonable person would act upon,

howsoever compendious it may be, the conclusions would

not be treated as perverse."

27. This Court, on the basis of aforesaid

position of law and considering the testimony of witnesses

as referred herein above, is of the view that the judgment

impugned is not fit to be interfered with since the same is

based upon the appreciation of evidence and at the

appellate stage the evidence cannot be re-appreciated,

save and except the intervention be made if the finding is

based upon no evidence.

28. Learned counsel for the appellant has

submitted that as of now the marriage has become

irretrievable, therefore, on this ground the decree of

divorce is required to be passed. She has referred the

order passed by Co-ordinate Bench of this Court dated

11.02.2020 whereby and whereunder the matter was tried

to be conciliated and for the aforesaid purpose a para-legal

volunteer was deputed at the residence of parties for his

staying in the same house in which the appellant has

been residing so as to submit a report for the re-union of

the couple but it is evident that the said exercise went

futile.

- 36 -

It is on the basis of aforesaid ground,

submission has been made that if there is no likelihood of

re-union then why to ask both the parties to live together

and on this ground alone it is a fit case where the decree

of divorce may be passed.

In support of her submission, she has relied

upon the judgment rendered in Ajay Kumar Rathee Vs

Seema Rathee [2022 (2) JBCJ 311 (SC)] and Naveen

Kohli vs. Neelu Kohli (supra).

But the position of law is well settled that the

applicability of the judgment is to be seen on the basis of

the facts and circumstances governing the each case and

there cannot be any universal applicability of the

judgment rather it has to be tested on the basis of facts

and circumstances of each and every case as per the ratio

decided by the Hon‟ble Apex Court in the judgment

rendered in Dr. Subramanian Swamy vs. State of

Tamil Nadu and Others, (2014) 5 SCC 75, in particular

at paragraph 47 which reads as under:

"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."

- 37 -

29. Emphasis has been given upon the judgment

rendered in the case of Ajay Kumar Rathee Vs Seema

Rathee (supra) for declaration of suit for divorce on the

ground of marriage having become irretrievable but the

question is that when the evidence speaks otherwise that

is the evidence of the appellant, his mother, his own

daughter that the husband and wife [appellant and

respondent] are living together in the same house having

marital relationship then how and on what basis the

submission is being made on behalf of appellant that the

marriage has become irretrievable. The meaning of

irretrievable as per black law dictionary is „not able to

retrieve or put right i.e, impossible to regain or recover'.

The irretrievable breakdown of marriage means

the couple can no longer live together as man and wife.

Both partner and one partner must prove to the Court that

there is no reasonable chance of getting back together.

Since this Court has found from the material

available on record while exercising the appellate

jurisdiction that nothing has been found on record basis

upon which it can be said that the marriage has become

irretrievable.

The law is well settled so far as jurisdiction of

appellate Court is concerned it is to be exercised wherein

only the legality and propriety of impugned judgment is to

- 38 -

be tested on the basis of factual aspect on record gathered

in course of trial.

The reliance which has been placed upon the

judgment referred hereinabove which view has been

reiterated by the Constitution Bench in the case of Shipla

Sailesh Vs. Varun Sreenivasan [2023 SCC OnLine SC

544] wherein it has been held that under its extraordinary

jurisdiction under Article 142 of the Constitution of India

which can be used to do „complete justice‟ for couples

trapped in bitter marriages by granting them divorce by

mutual consent can well be exercised but this Court is

exercising the appellate jurisdiction hence we are of the

view that the appellate Court is required to go through the

evidence so as to look into the impropriety of the

impugned judgment, which we have found as per the

discussion made hereinabove that the learned trial Court

after taking into consideration the fact in entirety is

correct in dismissing the suit on this ground.

30. This Court on the basis of testimony has

gathered therefrom that the main purpose of filing suit of

divorce was started after the birth of second female child

and that is the version of the respondent-wife, who was

subjected to abortion also. The aforesaid version has also

not been disputed by the appellant-husband. Further the

aforesaid fact has also been deposed by the daughter

- 39 -

namely Hansika Chokhani, who has said at paragraph 23

that her father used to search bride for second marriage at

social media and matrimonial sites for the reason that

they are having no brother

These testimonies, according to our considered

view, suggest that it is the respondent who was subjected

to cruelty on the part of the appellant.

Now the question is on the basis of aforesaid

fact can it be said that the marriage has become

irretrievable. If in such circumstances, the marriage will

be said to be irretrievable then what will happen to the

society, since the main reason behind filing suit for

divorce, as would appear from the testimony of the

witnesses particularly the testimony of own daughter of

the appellant, who at paragraph 23 has deposed that due

to no birth of male child, her mother was being tortured,

is the birth of second female child and no birth of male

child.

Hence, this Court is of the view that on this

pretext also, it cannot be said that the marriage has

become irretrievable.

31. This Court, on the basis of discussions made

hereinabove, is of the view that the judgment and decree

passed by learned Principal Judge, Family Court, Ranchi

in Original Suit (M.T.S.) No. 518 of 2015 vide order dated

- 40 -

05.12.2018, whereby and whereunder the suit filed by the

petitioner-husband, appellant herein, for decree of divorce

has been dismissed, requires no interference by this

Court.

32. Accordingly, the instant appeal fails and is

dismissed.

         I Agree                    (Sujit Narayan Prasad, J.)



(Sanjay Kumar Dwivedi, J.)          (Sanjay Kumar Dwivedi, J.)



Jharkhand High Court, Ranchi
Alankar / A.F.R.