[Cites 21, Cited by 0]
Jharkhand High Court
Alok Baidya Roy vs Nibedita Badya Roy on 10 December, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No.116 of 2016
Alok Baidya Roy, son of late Manoranjan Baidya Roy, resident
of:Quarter No. H57/B Dyke Area PO: Maithan, PS: Chirkunda, District
Dhanbad. ..... ...Appellant/Petitioner
Versus
Nibedita Badya Roy, daughter of Kamakhya Hazra, wife of Alok
Baidya Roy, resident ofBudhan Upper Para, Near P & T Quarter PO:
Asansole, PS: Asansole, District Burdhwan (W.B.)
.... ..Respondent/Respondent
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CORAM:HON'BLEMR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellant :Mr. Sanjay Prasad, Advocate
For the Respondent :Mr. Rajiv Kumar Karan, Advocate
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CAV On:24.11.2025 PRONOUNCED ON:10.12.2025
Per Sujit Narayan Prasad, J.
1. At the outset it requires to refer herein that the instant Memo of appeal
was rejected on 16.01.2017 by virtue of order dated 03.01.2017 passed by
the co-ordinate Bench of this Court for non-compliance of the peremptory
order passed on 03.01.2017.
2. Thereafter, C.M.P. No. 62 of 2017 was filed by the appellant for
restoration of the instant appeal but again the peremptory order dated
30.08.2018 passed by the co-ordinate Bench in the said C.M.P has not been
complied with therefore the instant memo of appeal stood dismissed on
06.09.2018.
3. The appellant again preferred a petition being C.M.P. No. 590 of 2018
for restoration of the instant appeal which was allowed vide order dated
20.02.2024 and the instant appeal was restored to its original file subject to
compliance of order dated 30.08.2018, within two weeks.
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4. Accordingly, the appeal has been listed for further adjudication.
5. It needs to refer herein that from perusal of the order dated 01.09.2025
passed by this Court it is evident that the learned counsel for both the
parties, had shown their willingness that they are interested in settlement in
terms of money, accordingly matter was adjourned.
6. Thereafter, matter was listed on 24.11.2025 and the learned counsel
for both the parties had argued at length on merit of the instant appeal and
after conclusion of the arguments of both the parties, the instant appeal was
reserved for judgment.
Prayer
7. The instant appeal under Section 19(1) of the Family Courts Act,
1984is directed against the order/judgment dated 06.04.2016 and decree
dated 13.4.2016 passed by the learned Principal Judge, Family Court,
Dhanbad in Title (Mat.) Suit No. 439 of 2009, whereby and whereunder,
the Suit filed by the appellant under Section13 (1) (i-a)(i-b) of the Hindu
Marriage Act, 1955 on the ground of cruelty and desertion, has been
dismissed.
Factual Matrix
8. The brief facts of the case leading to filing of the petition filed under
Section 13(1) (ia) and (i-b) of the Hindu Marriage Act, 1955, by the
appellant/petitioner needs to be referred herein which are as under:
The marriage of the appellant/petitioner with the respondent
wife was solemnized at Asansole on 31.01.2004 as per Hindu rites and
customs and they were living together as husband and wife at Maithan,
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Dhanbad. They have blessed with two children, namely, Shelly Baidya Roy
and Arko Baidya Roy out of their wedlock. The respondent-wife and her
father started to pressurize the petitioner to live at Asansole by constructing
a house but the petitioner was not ready for that as he was only member to
look after his widow mother.
It is further alleged that respondent did not involve herself in any
household work nor she maintained and looked after her mother-in-law at
any point of time and when she was asked about it, she threatened to drag
the petitioner in criminal prosecution. It is further alleged that after giving
birth to a son on 6.8.2006 the respondent went away with her father to her
parent's house and did not return to petitioner's residence even when the
petitioner's mother went to respondent's parents house to bring her back to
participate in "ANN PRASSAN" of their son. Therefore, the petitioner
filed matrimonial Suit under section 9 of the Hindu Marriage Act against
the respondent. The respondent also launched a criminal case against the
petitioner bearing Asansol PS case no. 228 of 2007 and also a maintenance
case has been filed by her. Therefore, the Suit has been filed by the
appellant/husband praying for divorce on the ground of cruelty and
desertion.
9. The learned Family Judge has called upon the respondent-wife. The wife
has filed written statement admitting the factum of marriage with the
petitioner. It is pleaded that after marriage on 01.02.2004 the respondent
went to her sasural at Maithan, Dhanbad alongwith several household
articles which were given to her by her parents at the time of marriage but
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within short time, she came to know that she was brought to her sasural as a
maid to serve the members of petitioner's family.
10. It is further pleaded that petitioner is addicted to liquor and under influence
of liquor, many times he molested the respondent in very indecent manner
and in order to enjoy his sexual lust, he used to put burning cigarette on her
body. The respondent very soon came to know that her marital life is
meaningless and it has no future in view of the physical and mental torture
given by the petitioner. It is further alleged that petitioner demanded 2
Lakhs rupees from her father, out of which, Rs. 1,50,000/- was given but
the petitioner always insisted for payment of remaining balance of Rs.
50,000/-towards unpaid cash dowry and the respondent was tortured and
assaulted by the petitioner owing to non-payment of balance amount of Rs.
50,000/-.
11. The respondent was forced to perform all household works during her
pregnancy period owing to which her health deteriorated and to protect her
life, she was brought at Budha Asansol by her father and was treated by Dr.
P.K. Roy who advised to go at Calcutta for better treatment. The
respondent went to Beleview Nursing Home at Kolkata where she gave
birth to a female child from which petitioner and his family members were
not happy and they did not even talk with the respondent. The respondent
suffered humiliation looking at her minor daughter and again she gave birth
to a male child on 06.08.2006, namely, Arko Baidya Roy.
12. It is further pleaded that suddenly the behaviour of petitioner was changed
and they decided to expand their business at Budha Asansol. The
respondent, in view of suddenly changed behavior, went to her sasural at
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Maithon and there she saw the petitioner with an unknown lady in
compromising position on 14.1.2007 and when she objected, she was
driven from the house. She filed a C.P. Case No. 693 of 2007 and a
maintenance case bearing Misc Case No. 241 of 2007 at Asansol against
the petitioner.
13. After taking into consideration the pleading of the both the parties the
learned Family Court has framed altogether four issues which are as
follows:-
(i) Whether the suit as framed is maintainable?
(ii) Whether the plaintiff has got a valid cause of action for the Suit?
(iii) Whether the marriage of the plaintiff and respondent is fit to be
dissolved on the ground of cruelty and desertion?
(iv) To what other relief or reliefs the plaintiff is entitled to?
14. The evidences have been laid on behalf of both the parties. Thereafter, vide
order dated 06.04.2016, the judgment has been passed dismissing the suit
by holding that plaintiff/husband is not entitled to get relief as claimed.
15. Against the aforesaid order, the present appeal has been filed.
Arguments advanced on behalf of the petitioner/appellant:
16. It has been contended on behalf of the appellant that the judgment dated
06.4.2016 and the decree dated 13.4.2016 passed by the learned trial court
are against the material and evidences on record. The learned trial court has
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failed to apply his jurisdiction judiciously and as such he has come to an
erroneous finding.
17. The learned court has also not considered the principles of "Animus
Deserendi" in its proper perspective in the facts and circumstances of case.
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.
Arguments advanced on behalf of the respondent-wife:
19. Per contra, learned counsel for the respondent-wife, while defending the
impugned judgment, has submitted that there is no error in the impugned
judgment. The learned Family Judge has considered the issue of cruelty and
desertion and having come to the conclusion that no cogent evidence has
been adduced to establish either cruelty or desertion, has dismissed the
petition.
20. It has been submitted that the appellant/petitioner has tried to mislead the
Court by filing application on the misleading ground of committing cruelty
by the wife upon the husband.
21. Learned counsel, based upon the aforesaid grounds, has submitted that if on
that pretext, the factum of cruelty and desertion has not been found to be
established, based upon which the decree of divorce has been refused to be
granted, the impugned judgment cannot be said to suffer from an error.
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Analysis:
22. This Court has heard the learned counsel for the parties and had gone
through the findings recorded by the learned Family Judge in the impugned
judgment.
23. The case has been heard at length. The admitted fact herein is that the suit
has been filed under Sections 13(1) (i-a) and (i-b) of the Hindu Marriage
Act, 1955 for a decree of divorce on the ground of cruelty and desertion
wherein, issues have been framed wherein primarily issue no. (iii) is most
relevant.
24. It is evident from impugned order that the evidence has been laid on behalf
of both the parties. For ready reference, the evidences laid on behalf of the
parties are being referred as under:
(i) PW-1 is the husband-petitioner has deposed that his marriage with the
respondent was solemnized at Asansole on 31.01.2004 as per Hindu rites
and customs. They have blessed with two children, namely, Shelly Baidya
Roy and Arko Baidya Roy out of the said wedlock. He has stated that the
respondent-wife and her father started to pressurize the
petitioner(appellant) to live at Asansole by constructing a house but the
petitioner was not ready for that as he was only member to look after his
widow mother. He has further stated that respondent did not involve
herself in any household work nor she maintained and looked after her
mother-in-law at any point of time and when she was asked about it, she
threatened to drag the petitioner (appellant) in criminal prosecution.
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He has further stated that after giving birth to a son on 6.8.2006 the
respondent went away with her father to her parent's house and did not
return to petitioner's residence even when the petitioner's mother went to
respondent's parent house to bring her back to participate in "ANN
PRASSAN" of their son.
Therefore, the petitioner filed matrimonial Suit under section 9 of the
Hindu Marriage Act against the respondent and only thereafter the
respondent had filed a criminal case against the petitioner (appellant herein)
bearing Asansol PS case no. 228 of 2007 and also filed a maintenance case.
(ii) PW-2 Gopal Gupta has also deposed in his evidence that after sometime of
marriage, the respondent forced the petitioner to settle at Asansol and on
refusal; he was tortured by the respondent. This witness has further stated
that respondent never took interest in household works and she always
misbehaved with petitioner.
On the other hand, the respondent has examined herself as DW-1.
(i) DW-1 Nivedita Baidya Roy(respondent) herself has deposed in her
evidence that many times the petitioner molested her in very indecent
manner, in presence of children after taking liquor. In paragraph no. 6 of
her evidence, she has stated that she was ousted from her matrimonial
house by the petitioner when his illegal demand of dowry was not fulfilled.
She also deposed that the petitioner demanded 2 Lakhs rupees from her
father, out of which, Rs. 1,50,000/- was given but the petitioner always
insisted for payment of remaining balance amount and due to non-
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fulfillment of the said amount the respondent was tortured and assaulted by
the petitioner.
25. The learned Family Judge has gone into the interpretation of the word
"cruelty" and "desertion" and assessing the same from the evidences led on
behalf of the parties as also the submission made in the pleading, i.e., plaint and
written statement, has found that the element of cruelty and desertion could not
have been established.
26. In the context of the aforesaid factual aspect only seminal issue has to be
decide herein that "Whether the petitioner/husband is entitled to get divorce
dissolving the marriage of the petitioner/appellant with OP/wife on the ground
of mental cruelty and desertion U/s 13(1) (i-a) (1-b) of the Hindu Marriage Act,
1955?
27. The learned counsel for the appellant/petitioner has argued that the
evidence of cruelty and desertion has not properly been considered and as such,
the judgment suffers from perversity, hence, not sustainable in the eyes of law.
28. While on the other hand, argument has been advanced on behalf of the
respondent has submitted that the judgment is well considered one.
29. This Court while appreciating the argument advanced on behalf of the
parties 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
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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 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.
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"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.""
30. Thus, from the aforesaid it is evident that if any order made in conscious
violation of pleading and law then it will come under the purview of perverse
order. Further "perverse verdict" may probably be defined as one that is not only
against the weight of evidence but is altogether against the evidence.
Issue of Cruelty
31. Now this Court is adverting to the issue of cruelty. It requires to refer herein
the definition of 'cruelty' as has been defined by Hon'ble Apex Court in the
judgment rendered in Dr. N.G. Dastane Vs. Mrs. S. Dastane [(1975) 2 SCC
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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.
32. This Court, deems it fit and proper to take into consideration the meaning
of 'cruelty' as has been held by the Hon'ble Apex Court in Shobha Rani v.
Madhukar Reddi, (1988)1 SCC 105 wherein the wife alleged that the husband
and his parents demanded dowry. The Hon'ble Apex Court emphasized that
"cruelty" can have no fixed definition.
33. 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."
34. The Hon'ble Apex Court has further observed therein that while dealing with
such complaints of cruelty it is important for the court to not search for a
standard in life, since cruelty in one case may not be cruelty in another case.
What must be considered include the kind of life the parties are used to, "their
economic and social conditions", and the "culture and human values to which
they attach importance."
35. 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.
36. In V. Bhagat vs. D. Bhagat (Mrs.), (1994)1 SCC 337, the wife alleged in
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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 a cross-
examination. The Hon‟ble Apex Court held these allegations against the
husband to constitute "cruelty".
37. In Vijaykumar Ramchandra Bhate v. Neela Vijay Kumar Bhate, (2003)6
SCC 334 the Hon'ble Apex Court has observed by taking into consideration the
allegations levelled by the husband in his written statement that his wife was
"unchaste" and had indecent familiarity with a person outside wedlock and that
his wife was having an extramarital affair. These allegations, given the context
of an educated Indian woman, were held to constitute "cruelty" itself.
38. 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.
39. The Hon'ble Apex Court in the case of Vidhya Viswanathan v. Kartik
Balakrishnan, (2014) 15 SCC 21 has specifically held that cruelty is to be
determined on whole facts of the case and the matrimonial relations between the
spouses and the word 'cruelty' has not been defined and it has been used in
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
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one which is adversely affecting the other.
40. Now reverting to the fact of the case it has been alleged by the
appellant/husband that the respondent-wife and her father started to pressurize
the petitioner(appellant) to live at Asansole by constructing a house but the
petitioner was not ready for that as he was only member to look after his widow
mother. In order to the element of cruelty it has further been alleged that
respondent did not involve herself in any household work nor she maintained
and looked after her mother-in-law at any point of time and when she was asked
about it, she threatened to drag the petitioner (appellant) in criminal prosecution.
41. The respondent wife has stated that petitioner is addicted to liquor and under
influence of liquor, many times he molested the respondent in very indecent
manner and in order to enjoy his sexual lust, he used to put burning cigarette on
her body. It has further been alleged that petitioner demanded 2 Lakhs rupees
from her father, out of which, Rs. 1,50,000/- was given but the petitioner always
insisted for payment of remaining balance of Rs. 50,000/-towards unpaid cash
dowry and the respondent was tortured and assaulted by the petitioner owing to
non-payment of balance amount of Rs. 50,000/-.
42. Admittedly, the plea of cruelty has been raised by the appellant husband thus
onus is upon him to prove the fact of cruelty caused upon him by the
respondent/wife.
43. It is evident from the perusal of the impugned judgment that the learned
Family Court has appreciated the testimony of witnesses at length and had
arrived at conclusive finding that petitioner and his witness have simply stated
that respondent was not interested in household works and she misbehaved and
scolded the petitioner and his mother and forced the petitioner to settle at
Asansol but there is no description in evidence as to how the alleged
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misbehavior of respondent was cruel towards petitioner which caused a
reasonable apprehension in his mind and his family members that their life and
limb are in danger by the presence of respondent in their house and it is
practically impossible to further the life in the company of respondent. Further
the manner in which the alleged cruelty was committed by the respondent
towards petitioner and his family members has not been described.
44. Further the learned Family Judge has also taken into consideration that
there is also no evidence on record that respondent ever subjected the petitioner
with such a cruelty which caused mental distress and agony to the petitioner
(appellant herein).
45. Thus, on the basis of the aforesaid, it is considered view of this Court that
mere allegation of cruelty against the respondent is not suffice to grant decree of
divorce on the ground of cruelty unless and until it is established by the cogent
and reliable piece of evidence that the conduct and character of the respondent
was unbearable to the petitioner and it was not possible for him, in normal
course of nature, to live with the respondent. There is no cogent evidence on
record as to how and in what manner, the respondent subjected the
petitioner/appellant with cruelty, which was dangerous to his life or life of his
family members.
46. This Court, based upon the aforesaid discussions on the issue of cruelty, is of
considered view that the issue of cruelty as has been alleged by the appellant-
husband against his wife could not be proved because no cogent evidence to that
effect has been produced by the appellant and further since, the learned Family
Judge after appreciating the entire evidence had recorded its finding, therefore,
it is considered view of this Court that the appellant/petitioner has failed to
establish the element of perversity in the aforesaid finding of the learned Family
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Court.
47. Thus, as per the discussions made hereinabove and law laid down by
Hon'ble Apex Court which has also been referred herein above this Court has no
reason to take different view that has been taken by the learned Family Court
proving the ground of cruelty.
Issue of desertion
48. Now coming to the issue of desertion, which is also taken as a ground for
decree of divorce. It is evident from the plaint of the petitioner before Family
Court which has also taken note in the impugned judgment, that the husband and
wife are living separately.
49. It needs to refer herein that the word 'desertion' has been given in
Explanation to Section 13 (1) wherein it has been stated that "the expression
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.
50. Thus, desertion means the desertion of one of the spouses by the other
spouse from the marriage without reasonable cause and without the consent or
against the wish of other spouse.
51. 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
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departure by one spouse does not necessarily make that spouse
the deserting party."
52. 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."
53.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. The
fact that a husband makes an allowance to a wife whom he has abandoned is no
answer to a charge of desertion.
54. The offence of desertion is a course of conduct which exists independently of
its duration, but as a ground for divorce it must exist for a period of at least two
years immediately preceding the presentation of the petition or, where the offence
appears as a cross-charge, of the answer. 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.
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55. 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 willful separation. If a spouse abandons the other spouse in a state
of temporary passion, for example, anger or disgust, without intending
permanently to cease cohabitation, it will not amount to desertion. For the offence
of desertion, so far as the deserting spouse is concerned, two essential conditions
must be there, namely, (1) the factum of separation, and (2) the intention to bring
cohabitation permanently to an end.
56. Similarly, two elements are essential so far as the deserted spouse is
concerned: (1) the absence of consent, and (2) absence of conduct giving
reasonable cause to the spouse leaving the matrimonial home to form the
necessary intention aforesaid. In such a situation, the party who is filing for
divorce will have the burden of proving those elements.
57. 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 v. Meena, AIR 1964 SC 40 which has been consistently
followed in several decisions of the Hon'ble Apex Court.
58. The law consistently 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
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of consent on the part of the deserted spouse and the conduct of the deserted of
spouse should not give a reasonable cause to the deserting spouse to leave the
matrimonial home.
59.Herein the appellant has stated that the respondent/wife has deserted him
without any reason and after giving birth to a son on 6.8.2006 the respondent wife
went away with her father to her parent's house and did not return to petitioner's
residence even when the petitioner's mother went to respondent's parents house
to bring her back to participate in "ANN PRASSAN" of their son.
60. From perusal of the impugned judgment, it is evident the learned Family
Judge has appreciated the issue of desertion as alleged by the appellant at length
on the basis of evidences led by the both the parties particularly the testimony of
appellant/husband.
61. It is evident from record that petitioner/appellant has stated that his mother
went to the house of respondent's father on 01.01.2007 to bring her back but the
petitioner/appellant has not produced and examined his mother as a witness and
there is no explanation as to why she was not subjected to witness box to
substantiate this part of pleading of the petitioner/appellant.
62. Further the learned Family Court has specifically observed that there is no
evidence on record to prove the period when the people from petitioner's side
visited the respondent's father's residence to bring back the respondent. Apart
from all this D.W. I (respondent/wife) has stated in her evidence that petitioner
tortured her after taking liquor and assaulted in presence of children. This witness
had further stated in para 6 of her evidence that she was ousted from her
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matrimonial house by the petitioner when his illegal demand of dowry was not
fulfilled.
63. The learned family judge had categorically observed that the allegation of
demand of dowry and expulsion of respondent wife from matrimonial house has
not even been confronted by the petitioner during course of her cross-examination
and according there appears no reason to disbelieve this piece of evidence.
64. This Court, on the basis of discussions made hereinabove, is of the view that
the learned Family Court has rightly appreciated the ground of desertion by
holding that the petitioner has failed to prove and substantiate his plea of
desertion against the respondent wife by reliable and substantial piece of
evidence, as such we have no reason to take a different view that has been taken
by the learned Family Court.
65. Accordingly, the issue as framed by this Court is decided against the
appellant-husband, therefore, it is considered view of this Court that the learned
Family Court had rightly not granted the decree of divorce in favour of the
appellant husband on the ground of cruelty under Section 13(1)(ia) of the Hindu
Marriage Act or on the ground of desertion under Section 13(1)(ib), as such same
is requires no interference by this Court.
66. This Court, on the basis of discussions made hereinabove, is of the view that
the judgment dated 06.04.2016 and decree dated 13.4.2016 passed by the learned
Principal Judge, Family Court, Dhanbad in Title (Mat.) Suit No. 439 of 2009,
whereby and whereunder the Title (Mat.) Suit No. 439 of 2009 filed by the
petitioner-appellant-husband under Section 13(1), (i-a), (i-b) of the Hindu
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Marriage Act, 1955 for a decree of divorce has been dismissed, requires no
interference by this Court.
67. Accordingly, the instant appeal fails and is dismissed.
68. Pending interlocutory application(s), if any, also stands disposed of.
I Agree (Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Jharkhand High Court
Dated: 10.12.2025
KNR/A.F.R.
Uploaded On:12.12.2025
