[Cites 21, Cited by 0]
Jharkhand High Court
Dheeraj Kumar Lal vs Smita Gupta on 4 December, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No.129 of 2024
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Dheeraj Kumar Lal, aged about 37 years, son of Sri Chandra Kishore Lal
Tiwary, resident of House No.40, Block No.3, Shastri Nagar, P.O & P.S-
Kadma, Town-Jamshedpur, District-Singhbhum East, State-Jharkhand
.......... Petitioner/Appellant
Versus
Smita Gupta, aged about 45 years, wife of Sri Dheeraj Kumar Lal and
daughter of Sri Lalan Prasad Gupta, presently resident of Near Korra
Chauk, Durga Mandap, P.O & P.S-Hazaribagh, District-Hazaribagh,
State-Jharkhand ......... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellant : Mr. Devesh Ajmani, Advocate
For the Respondent : Mr. Shailendra Jit, Advocate
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Order No.07/Dated:4th December, 2025
Per Sujit Narayan Prasad, J.
1. The instant appeal under section 19(1) of the Family Courts Act,
1984 is directed against the judgment dated 05.03.2024 and the decree
dated 22.03.2024 passed in Matrimonial Suit No.57 of 2015 by the learned
Principal Judge, Family Court, Jamshedpur (in short, Family Judge)
whereby and whereunder the petition filed under section 13(1) (i) (i-a)
(i-b) of the Hindu Marriage Act, 1955 by the appellant-husband against
the respondent-wife has been dismissed.
2. The brief facts of the case as pleaded in the plaint having been
recorded by the learned Family Judge, needs to be referred herein as:
(i) The case of the petitioner/appellant is that he was married
in accordance with Hindu rites and customs with
respondent-Smita Gupta on 07.02.2006 at Hazaribagh.
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(ii) It is pleaded that the marriage between the parties was
solemnized without dowry and the amount incurred in
purchase of Maruti Van gifted at the time of marriage by
the father of the respondent was paid by the father of the
appellant.
(iii) It is alleged that after marriage the respondent came to her
matrimonial home on 28.03.2006 but stayed there only for
a fortnight and went back to her parents' house with her
brother.
(iv) It is alleged that the respondent did not discharge her
marital obligation as she had no knowledge of even
cooking and she used to abuse the appellant and his family
and refused to establish physical relationship with the
appellant.
(v) That the appellant is working with Tata Steel Ltd. and
living with his old parents and younger brother who is a
student of MBA.
(vi) It is alleged that the respondent has failed to do her
matrimonial obligation and threatened to implicate the
appellant and his family members in false case and to
commit suicide. He pressurized the appellant to give Rs.4
lakhs and transfer the land in favour of her father and she
refused to take care of her inlaws.
(vii) On 18.06.2008 the respondent left his partially flooded
house taking all her belongings including gold ornaments
and Rs.20,000/- cash.
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(viii) Thereafter, the appellant approached the respondent and
her parents on 27.11.2011 with his family to reconcile the
matter but they insulted and assaulted the appellant and his
family members and the respondent did not agree to come
with the appellant.
(ix) Due to adamant attitude of the respondent, the appellant
had filed a suit for restitution of conjugal rights being
Matrimonial Suit No.408 of 2011 but due to her
unwillingness to resume marital ties, he withdrew the said
suit.
(x) Thereafter, the appellant had no option but to file a suit for
divorce due to her refusal to continue her matrimonial life.
3. On the aforesaid ground of cruelty and desertion, the appellant-
husband has prayed for a decree of dissolution of the marriage between
him and the respondent-wife.
4. It needs to mention herein that in Matrimonial Suit No. 57 of
2015, upon issuance of the notices, the respondent-wife had appeared and
filed a written statement denying all the allegations levelled against her by
the appellant-husband.
5. She admitted about her marriage with the appellant but has
denied the other allegations contained in the plaint and stated that at the
time of marriage Rs.1 lakh cash, one Maruti Wagon RLX, gold ornaments,
furniture, clothes and domestic articles worth Rs.5 lakhs were given by
her father. But she was subjected to physical and mental torture at their
hands for insufficient dowry as her in-laws demanded further dowry of
Rs.6 lakhs.
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6. She has alleged that the appellant used to talk to his girlfriend
and on her objection his mother forcibly retained her mobile and gold
ornaments. She was also deprived of proper food and clothes.
7. It is alleged that the respondent wanted to settle the dispute and
reside with the appellant but it is the appellant who wanted to solemnize
his second marriage with another girl and, as such, the suit is liable to be
dismissed.
8. Learned Family Judge, after institution of the said case, taking into
consideration of the pleadings of the appellant and the respondent has
formulated the issues and has decided the lis by refusing to grant divorce
to the petitioner/appellant.
9. The aforesaid judgment by which divorce has not been granted is under
challenge by filing the instant appeal.
10. It needs to refer herein that the Matrimonial Suit No.57 of 2015
was earlier decided in favour of the appellant-husband by granting a
decree of divorce vide judgment dated 06.12.2017 and decree dated
16.12.2017 by the then learned Principal Judge, Family Court,
Jamshedpur.
11. Against the said order of granting decree of divorce, the
respondent-wife has preferred an appeal before this Court being First
Appeal No. 347 of 2018 which was allowed by a Division Bench of this
Court vide order dated 20.10.2022 while quashing and setting aside the
judgment dated 06.12.2017 and decree dated 16.12.2017 of divorce passed
by the learned Family Judge, Jamshedpur in Matrimonial Suit No.57 of
2015 and the said suit has been restored to its original file.
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12. Thereafter, the learned Family Judge, Jamshedpur proceeded
with the said Matrimonial Suit afresh and vide judgment dated 05.03.2024
and decree dated 22.03.2024, the suit was dismissed which is under
challenge in the present appeal.
Submission of behalf of the appellant-husband:
13. Mr. Devesh Ajmani, the learned counsel appearing for the
appellant-husband has taken the following grounds:
(i) There is an error in the impugned judgment, since,
each and every aspect of the matter has not been taken
into consideration based upon the documentary
evidences as well as ocular evidences.
(ii) The element of cruelty and desertion has been found
to be there if the evidences adduced on behalf of the
appellant-husband will be taken into consideration but
without appreciating the same properly, the learned
Family Judge has come to the finding by holding that no
element either of cruelty or desertion is there and, as
such, the impugned judgment and decree suffer from an
error.
(iii) It has been contended that so far as the issue of
cruelty is concerned a case was registered against the
appellant and his family members under section 498A of
the Indian Penal Code by making false allegation for
demand of dowry which itself amounts to cruelty.
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(iv) It has come in the evidence that the respondent-wife
used to threaten to commit suicide which also amounts
to cruelty.
(v) So far as the issue of desertion is concerned, the
brother of the respondent-wife, who has been examined
as DW3, has stated in his evidence that the respondent
left the matrimonial house after two years which is
substantive piece of evidence to establish the factum of
desertion.
(vi) It has been contended that the appellant has been
meted out with cruelty at the hands of the respondent-
wife due to her abnormal and cruel behaviour as would
be evident from the evidence adduced on behalf of the
appellant-husband, but the same has not been taken into
consideration.
(vii) It has been contended that though the learned
Family Judge has proceeded the matter and dismissed the
Matrimonial Suit, but he has failed to appreciate the
evidences adduced on behalf of the appellant as in the
trial, the evidence has come that it was the respondent-
wife who has committed cruelty upon him by her cruel
behaviour and act and deserted him by leaving her
matrimonial house.
14. The learned counsel, based upon the aforesaid ground, has
submitted that the impugned judgment and decree, therefore, needs
interference on the ground of perversity.
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Submission of behalf of the respondent-wife:
15. Per contra, Mr. Shailendra Jit, the learned counsel appearing for
the respondent-wife has taken the following grounds:
(i) There is no error in the impugned judgement as the
learned Family Judge has considered the entire issue
and on the basis of evidence laid by the parties has
passed the order impugned as such same may not be
interfered with.
(ii) The appellant has sought divorce on the ground that
the behaviour of the respondent-wife is cruel and has
deserted the appellant without any valid ground but
the learned Family Court, after taking into
consideration the oral and documentary evidence, has
held that the entire allegations levelled are absolutely
illegal, uncalled for and has rightly dismissed the suit.
(iii) It has been contended that even accepting that a
criminal case under section 498A of Indian Penal
Code has been lodged against the appellant but as has
been submitted on behalf of the learned counsel
appearing for the appellant that the said criminal case
is still pending and, as such, merely because the case
has been instituted under section 498 A of the Indian
Penal Code that cannot prove the element of cruelty.
(iv) It has been contended that the issue of desertion has
rightly not been proved, since, the factum of desertion
requires to be considered on the basis of the factum
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that if the wife has left the matrimonial house on her
own but no evidence has been laid to that effect.
(v) So far as the evidence of DW3 is concerned, that
cannot be construed to prove the factum of desertion,
since, whatever has been deposed by DW3, the brother
of the respondent-wife, that his sister came back to the
paternal house immediately after two years, i.e., is in
the context of the torture meted out to her for which a
criminal case under section 498A IPC has been
instituted.
16. 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, hence, the impugned judgment cannot be
said to suffer from an error.
Analysis:
17. We have heard the learned counsel appearing for the parties,
gone through the impugned judgment as well as the Trial Court Records,
as also the testimonies of the witnesses and the materials available on
record.
18. The learned Family Judge has formulated altogether five issues,
for ready reference the same are being quoted hereinbelow:
I. Whether the suit is maintainable in its present form?
II. Whether there is any valid cause of action for the suit?
III. Whether the respondent has, after the solemnization of
marriage, treated the petitioner with cruelty?
IV. Whether the respondent has deserted the petitioner for a
continuous period of not less than two years immediately
preceding the presentation of this petition?
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V. Whether the petitioner is entitled for any other relief or
reliefs as claimed?
19. The learned Family Judge has considered the evidence adduced
on behalf of the parties for deciding the issues involved in Matrimonial
Suit No.57 of 2015 as they are interconnected.
20. This Court in order to appreciate the aforesaid rival submission
before entering into the legality and propriety of the impugned judgment
needs to discuss herein the relevant part of the evidences adduced on
behalf of the parties.
21. During the trial, four witnesses have been examined on behalf of
the appellant-husband who himself has been examined as PW2.
22. In support of her contention, the respondent-wife has also
examined three witnesses including herself as DW1.
23. In his examination on oath as PW2, the appellant-husband has
narrated entire things as pleaded in the plaint about his marriage with the
respondent. He has stated on oath that his marriage was solemnized with
the respondent on 07.02.2006 in accordance with Hindu rites and customs.
He stated that his marriage was solemnized without dowry but the father
of the respondent gifted him a Maruti Van, the cost of the same was borne
by his father. He has further stated that the respondent, since very
inception, misbehaved with him and his family members and used to
threaten to implicate them in false criminal cases by committing suicide.
She also pressurized him for Rs.4 lakhs and transfer of land at Hazaribagh
in favour of her father and brother. When he refused to fulfill the desire of
the respondent, she left her matrimonial home on 18.06.2008 and never
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returned back. Thereafter, he filed a suit for restitution of conjugal right
but the same was dismissed as withdrawn due to refusal and adamant
attitude of the respondent.
In cross-examination, PW2 has admitted that he has not paid any
maintenance amount to the respondent since the time she left her
matrimonial home. He admitted that he is an employee of Tata Steel Ltd.
having a gross salary of Rs.47,000-48,000/-. He admitted that he went to
bring back the respondent in the month of November, 2011 and thereafter
he filed a suit for restitution of conjugal rights but in the year 2014 he
withdrew the same.
24. PW1-Chandra Kishore Lal is the father of the appellant. He has
stated in the same line and manner in which the appellant has stated in his
evidence. He has admitted that the marriage was solemnized without any
dowry and he incurred the expensed for purchasing the Maruti Car which
was gifted by the father of the respondent. He has deposed that the
respondent pressurized the appellant to give Rs.4 lakhs and transfer of the
land at Hazaribagh in the name of her father and brother. He has stated that
the respondent left the matrimonial home on 18.06.2008 and never
returned thereafter.
In his cross-examination, he stated that the respondent has filed
criminal cases under section 498A and under section 125 Cr.PC for
maintenance. He has admitted that despite willingness of the respondent
to reside with the appellant, they would not take her back.
25. PW3 Tara Devi is the mother of the petitioner/appellant. She has
stated that the respondent at the instance of her parents mentally and
physically tortured them with threats to implicate them falsely in criminal
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case or by committing suicide. The respondent pressurized the appellant
to transfer the land at Hazaribagh in favour of her father and brother and
pay Rs.4 lakhs to her family and inspite of their best efforts, she refused to
reside with them.
In her cross-examination, PW3 has stated that she never demanded any
dowry from the respondent. She has stated that she had gone to the
respondent's parental house on 27.11.2011with the appellant to bring her
back where the parents of the respondent misbehaved with them. She has
stated that the car in question was purchased by them by sale of ancestral
land.
26. PW4 Himanshu Kumar is a neighbour of the petitioner and has
stated that the respondent used to go to her parents' house frequently. He
has deposed that on 18.06.2008 due to partial flood the respondent went
with her father and never returned even though she enjoyed good
relationship with her in-laws.
However, none turned up, hence, he was not cross-examined.
27. DW1 is the respondent herself and she has deposed that her
marriage was solemnized with the appellant on 07.02.2006 at Hazaribagh
and at the time of marriage Rs. One lakh cash, one Maruti Wagon R worth
Rs.3,50,000/- and jewellery and other ornaments worth Rs.5 lakh were
given at the time of marriage by her parents. She has deposed that she was
subjected to cruelty and torture by her in-laws due to non-fulfillment of
demand of dowry of Rs.6 lakhs. She has stated that for dowry demand, she
had instituted a case which is pending in the Court at Hazaribagh and she
is willing to reside with her husband.
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In her cross-examination, DW1 has admitted that she has
instituted three cases against the appellant, the first one is for
maintenance, the second one is for domestic violence and the third one is
for dowry prohibition case out of which the maintenance case has been
decided and the rest two cases are still pending. She has deposed that the
appellant has withdrawn the case for restitution of conjugal rights under
section 9 of the Hindu Marriage Act. She has admitted that she is a
graduate. She has denied that on the instigation of her father to grab the
property of her husband, she has instituted the cases.
28. DW2 Mansoor Alam is the family friend of the respondent's
family. He has corroborated the statements of the respondent given in her
evidence. He has corroborated the factum of marriage and has stated that
at the time of marriage Rs. One lakh cash, one Maruri Wagon Car worth
Rs.3,50,000/- and jewellery and articles worth Rs.5 lakhs were given by
the parents of the respondent to the appellant and his family members. He
has stated that after marriage due to non-fulfillment of demand of Rs.6
lakhs, the appellant along with his family members started torturing her.
In cross-examination, DW2 has admitted that the respondent had
filed a case under 498A IPC against the appellant and his family members
in which he had appeared as a witness. He has admitted about the demand
of Rs.6 lakhs and one motorcycle. He has admitted that the case instituted
by the appellant for restitution of conjugal rights was withdrawn by him
but he has no knowledge as to why the said case was withdrawn.
29. DW3-Samir Kumar is the brother of the respondent who has also
corroborated the factum of the marriage and torture and cruelty meted out
upon the respondent by her in-laws due to non-fulfillment of demand of
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dowry of Rs.6 lakhs. He has stated that despite willingness of his sister
(the respondent) to resume marital ties, the appellant withdrew the said
suit for restitution of conjugal rights.
In cross-examination, DW3 has admitted that her sister resided
at her matrimonial home for about two years and thereafter came back to
his house with his father on 28.06.2008 and thereafter she never returned
to her in-laws' house. He has admitted that his father tried his best to return
back the respondent to her matrimonial house but he himself has not tried
for the same.
30. The fact about filing of suit by taking plea of cruelty and
desertion is admitted one as per the evidences adduced on behalf of the
appellant-husband.
31. The appellant-husband all along has alleged the issue of cruelty
and desertion which he was subjected to by his wife and in order to
establish the same the evidences has been laid as has been referred
hereinabove.
32. This Court while appreciating the argument advanced on behalf
of the appellant-husband 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.
33. 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
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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.
"Perverse.--Showing deliberate determination to behave
in a way that most people think is wrong, unacceptable or
unreasonable."
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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."
34. In the instant case, the ground for divorce has been taken on the
ground of cruelty and desertion.
35. The "cruelty" has been interpreted by the Hon'ble Apex Court in
the case of Dr. N.G. Dastane vs. Mrs. S. Dastana, (1975) 2 SCC 326
wherein it has been laid down that the Court has to enquire, as to whether,
the conduct 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.
36. 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 appellant-husband and his parents demanded dowry. The
Hon'ble Apex Court emphasized that "cruelty" can have no fixed
definition.
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37. 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."
38. 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."
39. 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.
40. 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 a cross-examination. The Hon'ble Apex Court
held these allegations against the husband to constitute "cruelty".
41. In Vijaykumar Ramchandra Bhate v. Neela Vijay Kumar
Bhate, (2003)6 SCC 334 the Hon'ble Apex Court has observed by taking
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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.
42. It requires to refer herein that the Hon'ble Apex Court in
Joydeep Majumdar v. Bharti Jaiswal Majumdar, (2021) 3 SCC 742, has
observed 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.
43. Now adverting to the factual aspect, it is evident from the
impugned judgment that the allegations specific to the ground of alleged
cruelty and desertion has been made by the petitioner/appellant-husband.
44. At this juncture it would be apt to refer the definition of desertion
as defined under explanation part of Section 13 which 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.
45. 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:
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"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. 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.
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.
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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.
49. It is, thus, evident from the aforesaid reference of meaning of
desertion that the quality of permanence is one of the essential elements
which differentiates 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 form the
necessary intention aforesaid. In such a situation, the party who is filing
for divorce will have the burden of proving those elements.
51. 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 this Court.
The law consistently laid down by this Court is 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
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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. 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."
52. This Court, on the premise of the interpretation of the word
"cruelty" and "desertion" has considered the evidences of the witnesses as
has been incorporated by the learned Court in the impugned judgment
dated 05.03.2024.
53. It is evident from the interpretation of the word cruelty that the
same is to be considered on different parameters depending upon the
material if available on record.
54. Adverting to the evidence of the witnesses laid in order to
establish the factum of cruelty, it is evident from the evidence of PW1 to
PW4 that whatever has been deposed by them that is the mere wear and
tear and not pertaining to element of cruelty coming under the fold of
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definition of the word "cruelty" as has been interpreted by the Hon'ble
Apex Court.
55. The appellant-husband although has taken the ground of cruelty
meted to him by his wife but, in course of trial he has failed to establish
the element of cruelty meted out to him at the hands of the respondent-
wife.
56. This Court, therefore, is of the view that in deciding the issue
no.III of cruelty, if the learned Family Judge has come to the conclusion
that the factum of cruelty has not been proved, which according to our
considered view cannot be said to suffer from an error.
57. The desertion while, on the other hand, has been defined that if
either of the parties on its own has left the house without any compulsion
or coercion, then only such type of separation will come under the fold of
desertion.
58. It is evident from the interpretation of desertion that the desertion
parting away from the matrimonial house will not amount to desertion
rather reason of parting away amounts to desertion, ie., if the wife on her
own has left the matrimonial house then certainly it will come under the
fold of desertion, but if the wife has been forced to leave her matrimonial
house, in such circumstances parting away from the matrimonial house
will not come under the fold of desertion.
59. Herein, as per the facts of the case the appellant has preferred a
suit being Matrimonial Suit No.408 of 2011 before the Court of Principal
Judge, Family Court at Jamshedpur for restitution of conjugal rights under
section 9 of the Hindu Marriage Act which he withdrew the same
subsequently after keeping the same pending for about two years.
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60. There is no reason as to why the case filed under section 9 of the
Hindu Marriage Act has been withdrawn by the appellant.
61. This Court, taking into consideration the fact that the appellant
has failed in proving that the wife herself has left the matrimonial house
on her own and, as such, on the basis of the aforesaid evidence, the learned
Family Judge has come to the conclusion that the factum of the desertion
has not been proved, which in our considered view cannot be said to suffer
from any error.
62. This Court after discussing the aforesaid factual aspect along
with the legal position and adverting to the consideration made by the
learned Family Judge in the impugned judgment has found therefrom that
the issue of element of cruelty and desertion has well been considered by
the learned Family Judge.
63. On consideration of the evidence, the learned Family Judge has
come to conclusion that the appellant-husband has miserably failed to
establish the ground of cruelty and desertion against the respondent-wife.
64. The aforesaid reason has led the learned Family Judge to dismiss
the suit.
65. This Court, on consideration of the finding arrived at by the
learned Family Judge and based upon the aforesaid discussion, is of the
view that the impugned judgment and decree passed by the learned Family
Judge is not coming under the fold of the perversity, since, the conscious
consideration has been made of the evidences, as would be evident from
the impugned judgment.
66. This Court, therefore, is of the view that the judgment dated
05.03.2024 and the decree dated 22.03.2024 passed in Matrimonial Suit
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No. 57 of 2015 by the learned Family Judge needs no interference and,
accordingly, the instant appeal stands dismissed.
67. Pending I.As, if any, stands disposed of.
(Sujit Narayan Prasad, J.)
(Arun Kumar Rai J.)
Sudhir
Dated:04/12/2025
Jharkhand High Court, Ranchi
AFR
