Jharkhand High Court
Shivesh Kumar Jha vs Meenu Jha @ Golden on 1 August, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 70 of 2023
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1. Shivesh Kumar Jha, aged about 45 years, son of Late Ramanugrah Jha,
resident of Etwari Nagar, Hirapur, P.O. & P.S. Dhanbad, District
Dhanbad State-Jharkhand A.S. Permanent resident of-Muradpur, A.S.
P.S. Parbatta, District-Khagaria State: Bihar
... ... Respondent/Appellant
Versus
Meenu Jha @ Golden, aged about 40 years, wife of Shivesh Kumar
Jha, resident of Mohan Bazar, P.O. Patherdih, P.S. Sudamdih, District
Dhanbad State-Jharkhand and A.S. Permanent resident of Etwari
Nagar, Hirapur, P.O. & P.S. & District-Dhanbad State: Jharkhand
... ... Respondent/Opposite Party
With
F.A. No. 135 of 2023
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2. Shivesh Kumar Jha, aged about 41 years, son of Late Ramanugrah Jha,
Resident of Etwari Nagar, Hirapur, P.O. and P.S.-Dhanbad, District-
Dhanbad.
... ... Appellant/Petitioner
Versus
Minu Jha @ Golden, Wife of Shivesh Kumar Jha, Daughter of
Mrityunjay Kr. Jha, Resident of Mohan Bazar, Patherdih, P.O. and
P.S.-Pathardih, District-Dhanbad.
... ... Respondent/Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mrs. Jasvindar Mazumdar, Advocate
Mrs. Neeharika Mazumdar, Advocate
(In both the cases)
For the Respondent : Mr. P.K. Mukhopadhyay, Advocate
(In both the cases)
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CAV on 07/07/2025 Pronounced on 01/08/2025
Per Sujit Narayan Prasad, J.
1. Both the appeals have been directed to be listed together and as such,
are being taken up together.
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2. The appeal being F.A. No.70 of 2023 preferred by the appellant-
husband against the decree passed on an application filed under Section 9
of the Hindu Marriage Act, 1955.
3. The appeal being F.A. No.135 of 2023 has also been filed by the
husband against the denial of the prayer for dissolution of marriage on the
ground of 'desertion'.
4. This Court, taking into consideration the ground which has been taken
for dissolution of marriage on merit, i.e., the ground of desertion, hence, is
of the view that appeal being F.A. No.70 of 2023 is to be considered first
since the outcome of the said judgment will have bearing upon the appeal
being F.A. No.135 of 2023, due to the reason that if the appellant will
succeed in F.A. No.70 of 2023 allowing the Restitution of Conjugal
Rights, then, the ground of desertion will be said to be proved, therefore,
the appeal being F.A. No.70 of 2023 is being taken up first.
5. The appeal being F.A. No.70 of 2023 filed under Section 19(1) of the
Family Courts Act, is directed against the Judgment and Decree dated
14.02.2023 passed by the learned Addl. Principal Judge, Addl. Family
Court No.II, Dhanbad in Original Suit No. 181 of 2020, whereby and
whereunder, the learned Court has decreed the suit in favour of the
petitioner-wife (hereinafter referred to as the 'respondent-wife') filed
under Section 9 of the Hindu Marriage Act for restitution of Conjugal
Rights.
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6. The brief facts of the case, as per the plaint of plaintiff (respondent-
wife herein), which required to be enumerated, needs to be referred as
under:
7. It is the case of the plaintiff/petitioner (respondent-wife) that
petitioner-wife and respondent-husband are legally married. Their
marriage was solemnized on 11-02-2008 according to Hindu Rites and
Customs at Etwari Nagar, Hirapur. After marriage, both these petitioner
and respondent had been lived together as husband and wife at Etwari
Nagar, Hirapur. Out of the wedlock, the couple was blessed with a female
child, now she has died.
8. It has further been stated that the respondent-wife was resided since
05-03-2008 till 04-08-2008 in her matrimonial house, but since then, she
was forced to leave her matrimonial house due to ill treatment by the
respondent and his family members for dowry and had to live at her
parents' house. It has further been stated that the petitioner is always ready
to lead conjugal life with her husband peacefully and the said matter has
been stated by the petitioner so many times before the mediator and at
Family Court, Dhanbad and before this Court. The petitioner is entitled to
a decree for Restitution of conjugal rights against her husband. On the
aforesaid pleadings, petitioner has sought relief to pass decree for
restitution of conjugal right.
9. On the other hand, the respondent-husband (appellant herein) has filed
written statement and he has stated that the present suit is not maintainable
either in law or on facts and circumstances of the suit. Para-1 of the suit is
admitted by the respondent. Para-2 of the suit is her own statement so the
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respondent-husband has nothing to say in this matter. Para-3 of the suit is
false and fabricated as the petitioner never came her matrimonial house to
lead conjugal life and neither she has been tortured by the respondent and
his family members for the purpose of dowry. It is true that many
contested cases are pending between both parties before learned court as
well as Hon'ble High Court, Ranchi and thus, relations became so worst
that it is impossible to live with each other.
10. It has further been stated that there are serious allegations against the
respondent (appellant herein) and his family members. The allegation and
conducts of the petitioner against the respondent itself shows that it is
impossible to lead peaceful conjugal life.
11. On the basis of pleadings made on behalf of the parties, the learned
Family Judge has framed the following issues, which are as follows:
(i) Whether the respondent has sufficient cause to live separately from
the petitioner?
(ii) Whether the petitioner is entitled for a decree for Restitution of
Conjugal Rights u/s 9 of Hindu Marriage Act.
12. In order to prove and substantiate the case, the petitioner/plaintiff
(respondent-wife herein) has produced and examined only one witness,
i.e., P.W.1, Meenu Jha-petitioner herself (respondent-wife herein).
13. The documentary evidence has been produced on behalf of the
petitioner (respondent-wife herein), i.e.,
Exhibit No. Description of Documents
Ext.-1 C.C. of order sheet of TMS No.375/2008
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Ext.-2 C.C. of judgment of TMS No.228/2009
Ext.-3 C.C. of judgment dt. 15.02.2017 of FA No.573/14
of the Hon'ble High Court of Jharkhand, Ranchi
Ext.-4 C.C. of plaint petition of OS. Case No.135/19
Ext.-5 C.C. of petition dt.31.03.2029 in TMS Case No.375/08
14. On the other hand, appellant-husband has produced and examined
only one witness, i.e., D.W.-1, Shivesh Kumar Jha (respondent himself).
15. After perusal of the evidence led by the parties, the learned Family
Court vide order dated 14.02.2023 has decreed the suit in favour of the
petitioner-wife (hereinafter referred to as the 'respondent-wife') against
which, the present appeal has been preferred.
Submission of the learned counsel for the appellant/respondent
16. It has been contended on behalf of the appellant-husband that the
factual aspect which was available before the learned Family Judge
supported by the evidences has not properly been considered and as such,
the judgment impugned is perverse, hence, not sustainable in the eyes of
law.
17. It has been submitted by the learned counsel for the appellant that the
respondent-wife has never came to her sasural to lead conjugal life with
the appellant husband.
18. Learned counsel for the appellant, based upon the aforesaid grounds,
has submitted that the judgment impugned suffers from perversity, as
such, not sustainable in the eyes of law.
Submission of the learned counsel for the respondent-wife
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19. Per contra, learned counsel appearing for the respondent-wife, while
defending the impugned judgment, has submitted that there is no error in
the impugned judgement. The learned Family Judge has considered all
aspects of the matter in right perspective and hence, decreed the suit in
favour of the respondent-wife.
20. It has been contended that the respondent wife is always ready to lead
conjugal life with her husband peacefully and the said fact has been stated
by the respondent wife so many times before the Mediator and before the
Family Court at Dhanbad.
21. It has also been contended that after marriage, she went to sasural
where she was physically and mentally tortured and ultimately, she was
ousted from her matrimonial house.
22. Learned counsel, based upon the aforesaid grounds, has submitted that
the impugned judgment cannot be said to suffer from an error.
Analysis:
23. 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.
24. The admitted fact herein is that the marriage between respondent-wife
and appellant-husband was solemnized on 11-02-2008 according to Hindu
Rites and Customs at Etwari Nagar, Hirapur. After marriage both
petitioner and respondent had been lived together as husband and wife at
Etwari Nagar, Hirapur. Out of the wedlock, the couple was blessed with a
female child but she has died.
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25. The evidence has been led on behalf of both the parties, i.e., P.W.1,
namely, Meenu Jha @ Golden (respondent wife) and D.W.1, namely,
Shivesh Kumar Jha (appellant-husband). For ready reference, the
evidences led on behalf of the parties are being referred as under:
P.W.-1 Meenu Jha @ Golden (respondent-wife herself), has
deposed in her examination-in-chief that she has filed the case against her
husband for Restitution of Conjugal rights under Section 9 of the Hindu
Marriage Act. After marriage, she resided with her husband in her sasural
from 05-03-2008 to 04-08-2008, in the meantime she got pregnant.
She has further stated that on 04-08-2008, she was forcibly driven out
from her matrimonial home by her in-laws and now, she is compelled to
reside in her maika. Since 2008, she has given consent in writing as well
as oral also to live with her husband but he did not ready to keep her. His
case for decree of divorce dismissed by the court and appeal was also
dismissed by the Hon'ble High Court.
She has filed this case to lead conjugal life with her husband. She was
tortured physically and mentally, in spite of that, she wants to reside with
her husband.
In her cross-examination, she has stated that she is residing separately
from her husband since 04-08-2008. She has filed the case for Bidai on
22-02-2020. Presently, sixteen cases are pending filed by both the parties.
Since 2008 till February 2020, she has not filed any case for Bidai against
the respondent Shivesh Jha. She has filed Complaint Case No.1229/2009
for cruelty and demand of dowry against the respondent, in which, she
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alleged that her life is not safe in her sasural and her in-laws made attempt
to kill her. She also has filed a Complaint Case No.960/12 against Shiveşh
Jha and 4 others under Domestic Violence Act. She is not residing with
Shivesh Jha since year 2008, so she cannot say that presently who is
residing in the house situated at Atwari Nagar Hirapur. In C.P. Case
No.960/12, judgment was passed in her favour.
In C.P. Case No.960/12, an order was passed, in which, Shivesh
Kumar Jha was directed not to make contact with petitioner nor he will
talk with her either in writing or oral or telephonic or electronic media. No
any settlement took place between both the parties in all pending cases
due to her husband. She has given in writing that she wants to go with the
husband without any terms and conditions. In the case of Bidai filed on
14-07-2008 by the husband, she has given a petition on 31-03-2001 to live
with her husband.
D.W.-1 Shivesh Kumar Jha (appellant-husband himself), has
deposed in his examination-in-chief that this case was filed by his wife for
Restitution of Conjugal Rights against him, with whom he was married on
11-02-2008. His father is government teacher and after that, she got job in
place of his father on compassionate ground. Thereafter, his wife put
pressure upon him to take whole benefit of the service which cause
dispute between the parties. On 08-07-2008 in his absence, petitioner
along with his father assaulted upon his mother and also they damaged the
household articles in spite of that, he made effort to keep the situation
normal but the father of petitioner was rigid not to listen any things and
then, he has filed a case for bidai in Family Court, Dhanbad where
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petitioner used filthy language against him in open court and thereafter, he
has belief that then now, it is not possible for him to lead conjugal right
with petitioner and he has filed case for divorce. There are several cases
pending between both the parties. After 12 years of marriage, this suit for
bidai was filed by the petitioner in the year 2020 by making conspiracy
with ill motive. The relations between both the parties now much
deteriorated and now, it is not possible to live together. They are residing
separately for 14 years.
In cross-examination, he has stated that his father died on 13-02-2008.
It is not true that his wife is not in his family members and he did not add
her name in the family list. It is false to say that his wife came to sasural
on 05-03-2008 and resided there till 04-08-2008. His wife never came to
her sasural. Mediation took place in the case of Restitution of Conjugal
Rights and in Mediation Centre, petitioner Meenu Jha assaulted upon him
by throwing the paper weight. He cannot say the date of mediation. It is
not true that he wanted to linger on the case of bidai and his wife has filed
petition before the Court to allow the aforesaid case for bidai. His wife has
filed petition with some conditions.
It is not true that after filing of the case of Restitution of conjugal life
by his wife, he has filed the case of divorce. The case of divorce filed by
him was dismissed. In the case of divorce, mediation took place but his
wife was not ready to go with him. It is not true that in mediation his wife
was ready to go but he was not ready to take his wife. He has filed appeal
against the judgment passed in divorce case and they were called for
counseling. It is not true that his wife was ready to go with her husband
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(appellant herein) but he did not ready to take his wife to her sasural. He
has filed second case for divorce against his wife on the ground of
desertion. Presently, he is residing in the house constructed by his father at
Hirapur, Dhanbad. As per family list of members in his family, there are
two members. Out of the wedlock, there are female child. It is not true that
due to his criminal act, handicap daughter was born. At the time of
operation, he was not there as because he is having no knowledge. The
expenses of birth of child were not borne by him. At the time of marriage,
he had selected in government job. It is not true that after getting
government job due to demand of dowry, he started torturing his wife.
26. The learned family Judge after framing the issues, has allowed the suit
and decreed the suit in favour of the petitioner-wife (hereinafter referred
to as the 'respondent-wife') vide order dated 14.02.2023.
27. In backdrop of the aforesaid factual aspect, it would be apt to discuss
the object and scope of decree of restitution. The object of restitution
decree was to bring about cohabitation between the estranged parties so
that they could live together in the matrimonial home in amity. The
leading idea of Section 9 was to preserve the marriage. For ready
reference, Section 9 of the Hindu Marriage Act is being referred as under:
"9. Restitution of conjugal rights.-- When either the husband or the
wife has, without reasonable excuse, withdrawn from the society of the
other aggrieved party may apply, by petition to the district court, for
restitution of conjugal rights and the court, on being satisfied of the
truth of the statements made in such petition and that there is no legal
ground why the application should not be granted, may decree
restitution of conjugal rights accordingly.
[Explanation.--Where a question arises whether there has been
reasonable excuse for withdrawal from the society, the burden of
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proving reasonable excuse shall be on the person who has withdrawn
from the society.]"
28. From perusal of the aforesaid provision, it is evident that if either the
husband or the wife has, without reasonable excuse, withdrawn from the
society of the other, the aggrieved party may apply, before the court
concerned, for restitution of conjugal rights and the court, on being satisfied
of the truth of the statements made in such petition and further taking into
consideration the legal ground that why the application should not be
granted, may decree restitution of conjugal rights accordingly.
29. Further, in explanation part of the said provision, it has been
prescribed that when a question arises, whether there has been "reasonable
excuse" for withdrawal from the society, the burden of proving "reasonable
excuse" shall be on the person who has withdrawn from the society.
30. It needs to refer herein that conjugal rights may be viewed in its
proper perspective by keeping in mind the dictionary meaning of the
expression "Conjugal" wherein the meaning of 'conjugal' as "of or pertaining
to marriage or to husband and wife in their relations to each other" is given
(Shorter Oxford English Dictionary, 3rd Edn. Vol. I page 371).
31. In the Dictionary of English Law, 1959 Edn. at page 453, Earl Jowitt
defines 'conjugal rights' thus:
"The right which husband and wife have to each other's society and
marital intercourse. The suit for restitution of conjugal rights is a
matrimonial suit, cognizable in the Divorce Court, which is brought
whenever either the husband or the wife lives separate from the other
without any sufficient reason, in which case the court will decree
restitution of conjugal rights (Matrimonial Causes Act, 1950, s. 15),
but will not enforce it by attachment, substituting however for
attachment, if the wife be the petitioner, an order for periodical
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payments by the husband to the wife (s.22). Conjugal rights cannot be
enforced by the act of either party, and a husband cannot seize and
detain his wife by force (R.V. Jackson [1891] 1 Q.B. 671)".
32. In India, it may be borne in mind that conjugal rights, i.e., right of the
husband or the wife to the society of the other spouse is not merely creature
of the statute. Such a right is inherent in the very institution of marriage
itself. Thus, the restitution of conjugal rights is often regarded as a
matrimonial remedy. The remedy of restitution of conjugal rights is a
positive remedy that requires both parties to the marriage to live together and
cohabit.
33. Thus, the requirement of the provisions of restitution of conjugal rights
are as follows:
(i) The withdrawal by the respondent from the society
of the petitioner.
(ii) The withdrawal is without any reasonable cause or
excuse or lawful ground.
(iii) There should be no other legal ground for refusal
of the relief.
(iv) The court should be satisfied about the truth of the
statement made in the petition.
34. The Hon'ble Apex Court in the case of Suman Singh v. Sanjay
Singh, (2017) 4 SCC 85 has categorically observed that when there is
evidence establishing that it was respondent husband who withdrew from
appellant's company without any reasonable cause, appellant is entitled to
decree for restitution of conjugal rights. For ready reference the relevant
paragraph is being quoted as under:
"24. In our considered view, as it appears to us from perusal of the
evidence that it is the respondent who withdrew from the appellant's
company without there being any reasonable cause to do so. Now
that we have held on facts that the respondent failed to make out any
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case of cruelty against the appellant, it is clear to us that it was the
respondent who withdrew from the company of the appellant without
reasonable cause and not the vice versa.
25. In view of the foregoing discussion, the appeals succeed and are
allowed. The impugned judgment [Suman Singh v. Sanjay Singh,
2013 SCC OnLine Del 2138 : (2013) 136 DRJ 107] is set aside. As a
result, the petition filed by the respondent (husband) under Section
13(1) of the Act seeking dissolution of marriage is dismissed. As a
consequence thereof, the marriage between the parties is held to
subsist whereas the petition filed by the appellant against the
respondent under Section 9 of the Act seeking restitution of conjugal
rights is allowed. A decree for restitution of conjugal rights is,
accordingly, passed against the respondent.
26. We hope and trust that the parties would now realise their duties
and obligations against each other as also would realise their joint
obligations as mother and father towards their grown up daughters.
Both should, therefore, give a quiet burial to their past deeds/acts
and bitter experiences and start living together and see that their
daughters are well settled in their respective lives. Such reunion, we
feel, would be in the interest of all family members in the long run
and will bring peace, harmony and happiness. We find that the
respondent is working as a "Caretaker" in the Government
Department (see Para 4 of his petition). He must, therefore, be the
"Caretaker" of his own family that being his first obligation and at
the same time attend to his government duties to maintain his
family."
35. Thus, on the basis of aforesaid settled position of law, it is evident that
the court will grant a decree for restitution of conjugal rights when one
spouse has withdrawn from the other's society without reasonable
excuse. This means if a husband or wife leaves the marital home or refuses
to live with their spouse without a justifiable reason, the other spouse can
petition the court for this remedy. The court, if satisfied with the truth of the
petition and finding no legal barrier, may order the withdrawing spouse to
return and resume cohabitation.
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36. In the backdrop of the aforesaid settled position of law, this Court is
now adverting to the material available on record and has revisited the order
impugned.
37. Now adverting to the factual aspect of the instant case, wherefrom it is
evident from the testimony and evidence available on record that the
plaintiff/wife (respondent herein) since beginning always tried her best to
lead happy, conjugal life and she has shown her willingness to come in the
matrimonial home, which would be evident from the pleading as made in
plaint. But from the testimony of the appellant /husband, it is evident that
from beginning he has avoided his wife (respondent herein) without any
reasonable excuse.
38. Further, from the perusal of the impugned order, it is evident that the
learned Family Judge while allowing the appeal in favour of the
plaintiff/wife (respondent herein) has also taken into consideration the
aforesaid factual aspect as well as settled proposition of law related to the
restitution of conjugal right, which would be evident from some paragraphs
of the impugned judgment, for ready reference, the relevant paragraph is
being quoted as under:
"22. Respondent has argued that after marriage solemnized in year
2008 this suit was filed u/s 9 of H. M. Act in year 2020, if she was
interested to live in her sasural then why suit was not filed at early
stage after marriage. It is true that this suit for Restitution of Conjugal
Right was filed after more than 12 years by the petitioner but it is also
true that earlier respondent has filed suit по-375/08 for Restitution of
Conjugal Right in which both parties have appeared and matter was
sent for mediation. A certified copy of Suit no-375/08 has been filed
on behalf of petitioner. As per order sheet dt. 14-07-2008 and
onwards it appears that respondent Meenu Jha was fully cooperative
in Mediation Centre and was very much inclined to lead her conjugal
life with her husband/petitioner Shivesh Kumar Jha. But respondent
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has stated that he will take his wife only on fulfill of some terms and
condition. But what was that condition has not been disclosed by him
whereas as per respondent Meenu Jha she is suffering from mental
torture and agony by the conduct of her husband despite that she is
willing to go to her sasural but the petitioner/husband denied to take
his wife from mediation centre and ultimately mediation got failed.
Further as per Ext.-5 it appears that in suit no-375/08 filed by the
husband of petitioner namely Shivesh Kumar Jha for Restitution of
Conjugal Rights a petition was filed by Meenu Jha and made prayer
to allow the suit and she is ready to live conjugal life with her
husband. So as per aforesaid submission and prayer made by
petitioner it is very much clear that she is ready to lead conjugal life
with her husband. Respondent has further argued that the petitioner
never resided in her sasural but it has come in the evidence of
witnesses that after marriage respondent got pregnant and
handicapped child was also born which falsify the version of
respondent that petitioner never resided in her sasural.
23. So as per oral as well as documentary evidence available on
record it transpires that petitioner is always ready to lead conjugal
life with her husband but it was husband/respondent who, without
reasonable excuse has withdrawn from the society of his wife."
39. Thus, on the basis of the discussion made hereinabove, this Court,
therefore, is of the view that the judgment dated 14.02.2023 passed by the
learned Addl. Principal Judge, Addl. Family Court No.II, Dhanbad in
Original Suit No. 181 of 2020, whereby and whereunder, the learned court
has decreed the suit in favour of the petitioner-wife (hereinafter referred to as
the 'respondent-wife') filed under Section 9 of the Hindu Marriage Act for
restitution of Conjugal Rights, needs no interference.
40. As referred hereinabove, the instant First Appeal being F.A.135 of
2023 has been preferred by the appellant husband against the denial of the
prayer for dissolution of marriage on the ground of 'desertion'.
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41. Since, this Court has already denied to interfere with the order dated
14.02.2023 by which Addl. Principal Judge, Addl. Family Court No.II,
Dhanbad in Original Suit No. 181 of 2020, has decreed the suit in favour of
the petitioner-wife (hereinafter referred to as the 'respondent-wife') filed
under Section 9 of the Hindu Marriage Act for restitution of Conjugal
Rights, therefore, in consequence of that, the present appeal has no leg to
stand on his own.
42. However, this Court is of the considered view that in the end of
justice, it would be apt to discuss the settled connotation of law regarding
"desertion".
43. It needs to refer herein that the word 'desertion' has been given in
Explanation to Section 13 (1) of the Act 1955 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 willful neglect of the
petitioner by the other party to the marriage, and its grammatical variations
and cognate expressions shall be construed accordingly."
44. 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
willful neglect of the petitioner by the other party to the marriage, and its
grammatical variations and cognate expressions shall be construed
accordingly.
45. Rayden on Divorce, which is a standard work on the subject at p. 128
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(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."
46. 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."
47. The 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.
48. 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.
49. It is, thus, evident from the aforesaid reference of meaning of
desertion that the quality of permanence is one of the essential elements
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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.
50. 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.
51. 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.
52. The law consistently has been laid down by the 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 the conduct of the deserted spouse should not give a reasonable
cause to the deserting spouse to leave the matrimonial home.
53. From the impugned order, it is evident that the desertion has not been
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proved before the Family Court through concrete and tangible evidence and
further, it has come on the record that even otherwise, there is no desertion
on the part of respondent-wife as she in her evidence also has deposed that
she is very keen and desirous to live and stay with her husband all through
her life and perform her duties.
54. This Court, on the basis of discussions made hereinabove, is of the
view that the appellant husband has not been able to prove the ground of
desertion as one of the grounds for divorce before the learned Family Court.
As such, we have no reason to take a different view that has been taken by
the learned Family Court.
55. Further, the learned counsel for the appellant/husband has contended
that there is element of perversity in the orders passed by the learned
Family Court.
56. This Court, while appreciating the argument advanced on behalf of
the appellant 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.
57. 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, read as under:
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"24. The expression "perverse" has been dealt with in a number
of cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501]
this Court observed that the expression "perverse" means that
the findings of the subordinate authority are not supported by
the evidence brought on record or they are against the law or
suffer from the vice of procedural irregularity.
25. In Parry's (Calcutta) Employees' Union v. Parry & Co.
Ltd. [AIR 1966 Cal 31] the Court observed that "perverse
finding" means a finding which is not only against the weight of
evidence but is altogether against the evidence itself. In Triveni
Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994
SC 1341] the Court observed that this is not a case where it can
be said that the findings of the authorities are based on no
evidence or that they are so perverse that no reasonable person
would have arrived at those findings.
26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58]
the Court observed that any order made in conscious violation
of pleading and law is a perverse order.
In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed
that a "perverse verdict" may probably be defined as one that is
not only against the weight of evidence but is altogether against
the evidence.
In Godfrey v. Godfrey [106 NW 814] the Court defined
"perverse" as turned the wrong way, not right; distorted from
the right; turned away or deviating from what is right, proper,
correct, etc.
27. The expression "perverse" has been defined by various
dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current
English, 6th Edn.
"Perverse.--Showing deliberate determination to behave in
a way that most people think is wrong, unacceptable or
unreasonable."
2. Longman Dictionary of Contemporary English,
International Edn.
Perverse.--Deliberately departing from what is normal and
reasonable.
3. The New Oxford Dictionary of English, 1998 Edn.
Perverse.--Law (of a verdict) against the weight of evidence
or the direction of the judge on a point of law.
4. The New Lexicon Webster's Dictionary of the English
Language (Deluxe Encyclopedic Edn.)
Perverse.--Purposely deviating from accepted or expected
behavior or opinion; wicked or wayward; stubborn; cross or
petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, 4th
Edn.
"Perverse.--A perverse verdict may probably be defined as one
that is not only against the weight of evidence but is altogether
against the evidence."
58. This Court, based upon the aforesaid discussion, is of the view that the
appellant/petitioner has failed to establish the element of perversity in the
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impugned judgment(s) as per the discussion made hereinabove, as such, the
instant appeals deserve to be dismissed.
59. Accordingly, the instant appeals fail and are hereby, dismissed.
60. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
I Agree
(Rajesh Kumar, J.)
(Rajesh Kumar, J.)
/
Rohit A.F.R.
