[Cites 20, Cited by 0]
Jharkhand High Court
Om Prakash Choudhary Aged About 42 Year ... vs Renu Kumari Wife Om Prakash Choudhary ... on 5 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.71of 2023
Om Prakash Choudhary aged about 42 year son of
Ramayan Choudhary resident of sector 8/C, Quarter no.
1116, P.O. Sector 9 and P.S. Harla, District Bokaro,
Jharkhand. ... Appellant/Petitioner
Versus
Renu Kumari Wife Om Prakash Choudhary daughter of
Late Shankar Prasad resident of sector 9/D, Quarter no.
481, P.O. Sector 9 and P.S. Harla, Bokaro, Jharkhand.
... ...Respondent/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. Ashutosh Joshi,Advocate
For the Respondent : Mr. Subhneet Jha, Advocate
----------------------------
th
Order No. 17/Dated: 5 December, 2025
Per Sujit Narayan Prasad, J.
Prayer:
1. The instant appeal under Section 19(1) of the Family Court
Act, 1984 is directed against the order/judgment dated 10th
November, 2022 and decree signed on 18th November, 2022
passed by the learned Principal Judge, Family Court, Bokaro
in Original Suit No. 209 of 2019, whereby and whereunder,
the suit filed by the petitioner-appellant [husband] for
dissolution of marriage by decree of divorce u/s 13(1)(i-a)(i-b)
of Hindu Marriage Act, 1955 against respondent/wife, has
been dismissed.
Factual Aspect:
2. The brief facts of the case leading to filing of the divorce
petition by the appellant-petitioner, as taken note in the
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impugned order as emanated from the plaints, needs to be
referred herein, which as under:
3. The marriage of the appellant was solemnized with the
respondent on 07.07.2011 as per Hindu rites and custom at
Bokaro. After marriage, they lived together as husband and
wife. They have been blessed with two sons namely, Anurag
Kumar, aged about 05 years and Ashutosh Kumar, aged
about 03 years, the age at the time of filing of the suit.
4. It is the case of the appellant-husband that after two years
of their marriage, the respondent-wife without any
reasonable cause started quarreling with him and his family
members and went to her parents‟ home without any
information. It is further alleged though the respondent-wife
is a Teacher working in Kasturva Gandhi Girls School,
Raneshwar, Dumka since 2010 and getting salary of
Rs.30,000/-per month, but she is not spending a single
penny in his house and gives her salary to her parents. It
has been stated that he tried to keep her properly and
happily, in spite of that, she used to quarrel with them. He
incurred all the expenses during birth of their babies. In
spite of that, she on being instigated by her family members,
subjected him with cruelty and torture. The further case of
the appellant-husband is that he used to go Dumka, the
workplace of the respondent, but she does not permit him
[husband] to stay there. On 10.02.2017, after birth of second
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baby, she left her matrimonial home without any
information taking away her all jewelleries, clothes and
Stridhan. Thereafter, he tried his level best to bring her back
but in vain. Several times, he went to his sasural to meet
with their son, but he was not allowed to meet his son. Both
the children are living with the respondent. Elder son is
living with his maternal grand-mother at Bokaro and the
younger son is living with the respondent at Dumka. It has
been stated that family counseling was held, where the
respondent appeared on 09.04.2019, but she is not ready to
live with him.
5. Therefore, it has been contended that there is no chance of
living together as husband and wife with the respondent, so
left with no option the appellant-husband filed the suit for
divorce making a prayer for decree for dissolution of
marriage in favour of the petitioner.
6. The respondent-wife appeared before the learned family
court and denied the allegations leveled by the Petitioner,
the appellant herein. It has been contended that the
petitioner and his family members used to demand her
whole salary from the respondent. When she denied, he
threatened to get her divorced and to solemnize another
marriage and left her for one year with their 08 months
infant. During this period, her mother-in-law died, then she
came to her matrimonial home, but she was ousted from
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there. She with a view to preserve her conjugal life, had
given Rs.50,000/- in cash in the year 2015 and Rs.50,000/-
through cheque in the year 2017 to the petitioner. She tried
her level best to preserve her conjugal life, but due to her
limited source of income, she could not fulfill the demand of
the petitioner and his parents every time. Due to demand of
money, he always threatened her. In the year 2014, when
she was pregnant, she incurred her all expenses and the
petitioner with a view to take Rs.1,50,000/- (amount of her
maternity leave), used to threaten her to solemnize another
marriage. She lived with the petitioner-appellant till
08.02.2019 and discharged her all marital obligations. When
his demand of taking amount of her maternity leave could
not be fulfilled, he stopped coming Dumka. Since 2014, she
is not going to her matrimonial home. Her father-in-law
always abuses her. She has further stated that her articles
are in her matrimonial home. Till 08.02.2019, she used to go
to the workplace of the petitioner during leave or taking
leave and lived there as man and wife. Their children are
minor. She works in Dumka and the petitioner-appelllant
works in Muzaffarpur, Bihar. Her in-laws do not want to
keep any relationship with her. Their children are living with
her in Dumka. During family counseling in YMCA, she
agreed not to leave her service and agreed to live with the
petitioner in Muzaffarpur and also in Dumka. The petitioner
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always demanded money from her. The petitioner and his
family members has eye on her earning only. In spite of
giving money and living with him, he always threatens to
divorce her. When she denied to give her earning, the
petitioner, his father and others came to her parents‟ home
and assaulted them. They also assaulted to snatch her sons,
for which she had filed Harla P.S.Case No. 96 of 2019. On
the basis of aforesaid ground, it has been contended that the
suit filed by the appellant is liable to be dismissed.
7. On the basis of the pleadings of both the parties, the learned
family court framed the issue as to whether the respondent
(Wife) committed cruelty against the Petitioner (Husband)
after marriage? and; whether the respondent (wife) deserted
her husband (petitioner) since last two years prior to filing of
the suit and whether husband is entitled to get a Decree of
dissolution of marriage on the basis of Section-13(1) (ia) (ib)
of Hindu Marriage Act, 1955.
8. The learned Principal Judge, family court, after appreciating
the evidence adduced on behalf of parties, came to the
conclusion that admittedly, both the parties were living
together as man and wife till February 2019 and this case
was filed on 26.04.2019. The mandatory requirement to file
any case u/S. 13 1 (ib) of Hindu Marriage Act, 1955 is of
separation of two years. So, the case is not maintainable
u/S. 13 (1) (ib) of Hindu Marriage Act, 1955. As far as
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Section 13 1 (ia) of Hindu Marriage Act, 1955 is concerned,
there is absolutely no evidence of any kind of mental and
physical cruelty meted out to the petitioner-husband by the
respondent-wife. Accordingly, the issues were decided
against the Petitioner and the suit was dismissed.
Submission of the learned counsel for the appellant:
9. It has been contended on behalf of the appellant that the
factual aspect which was available before the learned family
court supported by the evidences adduced on behalf of the
appellant has not properly been considered and as such, the
judgment impugned is perverse, hence, not sustainable in
the eyes of law.
10. It has been submitted that the issue of cruelty has not been
taken into consideration in the right perspective even though
the fact about living separately has well been established.
11. Submission has been made that the judgment passed by
learned court below is perverse in the eye of law as the wife
has committed mental cruelty and physical cruelty towards
the appellant by filing false case against the appellant.
12. Learned counsel for the appellant has submitted that the
respondent-wife does not allow the appellant-husband to
stay with her in her work place, which itself amounts to
cruelty in the relationship of husband and wife, but these
aspects of the matter has not properly been considered by
the learned family judge.
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13. Learned counsel for the appellant, based upon the aforesaid
grounds, has submitted that the judgment impugned suffers
from perversity, as such, is not sustainable in the eyes of
law
Submission of the learned counsel for the respondent:
14. Per contra, learned counsel appearing for the respondent-
wife, while defending the impugned judgment, has submitted
that there is no error in the impugned judgment. The
learned Principal Judge has considered the issue of cruelty
and came to the conclusion that no evidence has been
adduced to establish cruelty. Further, the appellant and the
respondent were living together as man and wife till
February 2019 and this case was filed on 26.04.2019, as
such the mandatory requirement to file any case u/S. 13 (1)
(ib) of Hindu Marriage Act, 1955 of separation of two years
does not meet. Therefore, it has been held that this case is
not maintainable u/S. 13 (1) (ib) of Hindu Marriage Act,
1955.
15. Learned counsel, based upon the aforesaid ground, has
submitted that if on that pretext, the factum of cruelty
and/or 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 error.
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Analysis:
16. 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.
17. The admitted fact herein is that the suit for divorce has been
filed on the ground of cruelty and desertion i.e., by filing an
application under Section 13 (1) (i-a) (i-b) of the Hindu
Marriage Act, 1955 and accordingly, issues have been
framed and decided against the petitioner-appellant.
18. The evidence has been led on behalf of both the parties. On
behalf of petitioner-husband, four witnesses have been
examined, namely, Ram Pravesh Choudhary [PW 1], the
brother of the appellant; and Ramayan Choudary [PW 2], the
father of the appellant; Manju Devi [PW 3] and Om Prakash
Choudhary [PW 4], the petitioner-appellant himself.
19. Whereas on behalf of respondent-wife two witnesses have
been examined, namely, Renu Kumari, the respondent
examined herself as R.W- 1, Rina Kumari, sister of the
respondent.
20. This Court in order to appreciate the testimony available on
record has gone through the testimonies of the witnesses.
21. P.W. 1-Ram Pravesh Choudhary, has stated that the
petitioner and the respondent were married on 07.07.2011.
Out of their wedlock, they have two sons viz. Anurag Kumar
and Ashutosh Kumar. The respondent is a Teacher in
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Katurva Gandhi Girls School, Dumka. She used to spend
her salary on her parents. On 10.02.2017, the respondent
without informing the petitioner returned to her parents‟
home taking away jewelleries and Stridhan. Further, he
states that since before marriage, the respondent is working
as a Teacher in Katurva Gandhi Girls School, Dumka. She
has filed criminal case against them. The petitioner is also
working and getting salary of Rs.80,000/-. He is living in
Muzaffarpur for the last 03 years and he is working in
Croption Company. Earlier, he was working in
Bhubaneshwar. Respondent is living in the school since it is
a residential school. Earlier they were living in
Bhubaneshwar and Dumka on rent. He has denied the
allegation of the respondent.
22. PW-2 Ramayan Choudhary is the father of the appellant,
who has stated the same facts as stated by PW-1 in his
examination-in-chief filed on oath and further states that
since before marriage, the respondent was in service. Both
the children of the parties are living with their maternal
grand-mother (Nani). The respondent is Teacher in Katurva
Gandhi Girls School, Dumka. The appellant is working in
Sorlite Company, Patna in marketing field. He has not filed
any case for restitution of conjugal rights. On 08.02.2019,
both the parties came to attend marriage ceremony of the
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sister of the respondent at Bokaro. In the LIC policy of the
respondent, the petitioner is nominee.
23. PW-3 Manju Devi has stated the same facts as stated by
PWs' 1 & 2 in their examinations-in-chief filed on oath and
further states about marriage and children of the parties and
also about service of the respondent. On 08.02.2019, both
the parties had stayed in Qrs. No. 481, Street 35, Sector
9/D, Bokaro.
24. PW-4 Om Prakash Choudhary is the petitioner himself, who
has stated the same facts as stated by PWs' 1,2, & 3 in their
examination-in-chief filed on oath and further states that on
10.02.2019, the respondent returned to her parents‟ home
with clothes and jewelleries. He has paid Rs.40,000/-for
admission of their son Anurag in Aayappa School, Bokaro.
Ashutosh (second son), their second son is living in Dumka
with the respondent. On 02.03.2019, notice was issued for
family counseling, where the respondent appeared on
09.04.2019 but she is not ready to live with him. At present
he is Sales Manager in Magadh Steel. He has admitted that
on 08.02.2019 he has attended a family function in Sector-
9, Bokaro. He also admits that he has not filed any case for
restitution of conjugal rights. He categorically stated that
from the year 2014-19, the respondent was living with him
during vacation in Dumka, Patna, Ranchi and
Bhuwaneshwar. As stated earlier, PW-3 has stated that both
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the parties stayed together on 08.02.2019 during a family
function at Bokaro. PW-1 has stated that for last one year
both the parties are living separately. The petitioner (PW-4)
himself has stated that on 10.02.2019 after birth of their
second child, the respondent left her matrimonial home and
returned to her parents‟ home.
25. In his cross-examination at para-17, he has admitted that in
between 2014-19, they were living together during vacation
in Dumka, Patna, Ranchi and Bhuwaneshwar. He also
admits that on 08.02.2019, he has attended a family
function at Bokaro.
26. On behalf of respondent, the respondent-wife herself has
been examined as RW-1 Renu Kumari (respondent), who
has stated about her marriage with the petitioner and
further states that out of their wedlock, they have two sons.
Since before her marriage, she was a Teacher in Katurva
Gandhi Girls School, Dumka and it was agreed before their
marriage that she will continue her service. After their
marriage, they were living together for 03 years. She has
incurred the expenses of birth of their first son Anurag. She
got maternity leave and saving of Rs.1,50,000/-, but her
husband was demanding the money and threatened to
divorce her. Then he left her and their infant baby, aged
about 08 months and for one year he has not made any
contact with them. In between, her mother-in-law died.
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There also the petitioner and his family members demanded
money, then she has given Rs.50,000/- to the in the year
2015 and also Rs.50,000/- in the year 2017 by way of
cheque. She has deposited photo copy of her Bank passbook
in support of her claim. In her LIC Policy, the petitioner is
her nominee and she used to pay the premium. But to meet
out the expenses of her son, she stopped paying premium.
Not even this, in the Post Office she has a Policy and her
husband was a nominee. She used to pay Rs.12,000/- per
month but to meet out the expenses of their son, she
stopped paying premium. She has paid Rs.20,000/- in
November 2017 for payment of EMI of Car of the petitioner.
Till 2019 she was living with the petitioner in Patna, Ranchi
Muzaffarpur and Bhuwaneshwar with their children as a
family. On 08.02.2019, they have attended marriage of her
sister in Sector-9, Bokaro. She has filed Harla P.S.Case No.
96 of 2019 in lieu of demand of cash and threatening of
divorce and also threatening for snatching of her children.
The petitioner, his father, their nephew and one Singhji
came to her parents‟ home and tried to snatch their
children.
27. She has categorically deposed that she is ready to live with
her husband/petitioner. She is working in Kasturva Gandhi
Girls residential School, Dumka since 11.10.2010. She is
M.Sc. B.Ed. and working as teacher of Math in that school.
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It was agreed that she will continue her service. She has
filed documents related to birth of her children. She admits
that she has not filed any case against her husband and in-
laws, when she was ousted from her matrimonial home. She
denied that she has not allowed her husband/petitioner to
meet with their children.
28. RW-2 Rina Kumari (sister) has supported the case of the
respondent in her examination-in-chief filed on oath and
further states that she has no knowledge about talk between
the parties. But admits that the respondent used to come to
her parents‟ home. She does not know about the LIC Policy
and any other policy of Post Office of the respondent. Her
sister (respondent) is ready to live with her
husband/Petitioner. She denied the case of the petitioner.
29. Besides oral evidence, the documentary evidence was also
adduced before the learned family Court in support of the
deposition made by the respondent-wife.
30. On the basis of the pleading of the parties the learned
Principal Family Judge had framed issues for proper
determination of the lis, and after due appreciation of the
ocular as well as documentary evidence had negated the
claim of the husband/appellant and observed that the
petitioner/husband has totally failed to prove and establish
the allegation of cruelty and desertion on the part of wife for
dissolution of marriage.
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31. Herein, the learned counsel for the appellant has argued
that the evidence of desertion and cruelty has not properly
been considered and as such, the judgment suffers from
perversity, hence, not sustainable in the eyes of law.
32. While on the other hand, argument has been advanced on
behalf of the respondent that the judgment is well
considered and the learned family court has rightly come to
the conclusion by denying the decree of suit of divorce in
favour of petitioner-husband accordingly, dismissed the suit
which requires no interference by this Court.
33. From the pleadings available on record and the arguments
advanced on behalf of parties, the issue which requires
consideration is as to
"Whether the judgment and decree passed by the
learned family court denying the decree of divorce on
the ground of cruelty under Section 13(1)(ia) of the
Hindu Marriage Act and/or on the ground of
desertion under Section 13(1)(ib) requires
interference?"
34. 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.
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State [Represented by the Public Prosecutor] and Anr.,
(2009) 10 SCC 206 while elaborately discussing the word
perverse has held that it is, no doubt, true that if a finding of
fact is arrived at by ignoring or excluding relevant material
or by taking into consideration irrelevant material or if the
finding so outrageously defies logic as to suffer from the vice
of irrationality incurring the blame of being perverse, then,
the finding is rendered infirm in law. Relevant paragraphs,
i.e., paras-24, 25, 26 and 27 of the said judgment reads as
under
"24. The expression "perverse" has been dealt with in a number
of cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501]
this Court observed that the expression "perverse" means that the
findings of the subordinate authority are not supported by the
evidence brought on record or they are against the law or suffer
from the vice of procedural irregularity.
25. In Parry's (Calcutta) Employees' Union v. Parry & Co.
Ltd. [AIR 1966 Cal 31] the Court observed that "perverse finding"
means a finding which is not only against the weight of evidence
but is altogether against the evidence itself. In Triveni Rubber &
Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341] the
Court observed that this is not a case where it can be said 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.
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27. The expression "perverse" has been defined by various
dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English, 6th
Edn.
"Perverse.--Showing deliberate determination to behave in a
way that most people think is wrong, unacceptable or
unreasonable."
2. Longman Dictionary of Contemporary English, International
Edn.
Perverse.--Deliberately departing from what is normal and
reasonable.
3. The New Oxford Dictionary of English, 1998 Edn.
Perverse.--Law (of a verdict) against the weight of evidence or
the direction of the judge on a point of law.
4. The New Lexicon Webster's Dictionary of the English
Language (Deluxe EncyclopedicEdn.)
Perverse.--Purposely deviating from accepted or expected
behavior or opinion; wicked or wayward; stubborn; cross or
petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, 4th Edn.
"Perverse.--A perverse verdict may probably be defined as one that
is not only against the weight of evidence but is altogether against
the evidence."
35. Herein, cruelty has been taken by the appellant as the main
ground for dissolution of marriage.
36. So far the allegation of cruelty is concerned, it requires to
refer herein the definition of „cruelty' as has been defined by
Hon‟ble Apex in the judgment rendered in Dr. N.G.
DastaneVs. Mrs. S. Dastane [(1975) 2 SCC 326], wherein
it has been held that the Court is to enquire as to whether
the charge as cruelty, is of such a character, as to cause in
the mind of the petitioner, a reasonable apprehension that,
it will be harmful or injurious for him to live with the
respondent.
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37. The cruelty has also been defined in the case of Shobha
Rani Vs. Madhukar Reddi [(1988) 1 SCC 105], wherein the
wife alleged that the husband and his parents demanded
dowry. The Hon‟ble Apex Court emphasized that "cruelty"
can have no fixed definition.
38. According to the Hon'ble Apex Court, "cruelty" is the
"conduct in relation to or in respect of matrimonial conduct
in respect of matrimonial duties and obligations". It is the
conduct which adversely affects the spouse. Such cruelty
can be either "mental" or "physical", intentional or
unintentional. For example, unintentionally waking your
spouse up in the middle of the night may be mental cruelty;
intention is not an essential element of cruelty but it may be
present. Physical cruelty is less ambiguous and more "a
question of fact and degree."
39. The Hon'ble Apex Court has further observed therein that
while dealing with such complaints of cruelty that it is
important for the Court to not search for a standard in life,
since cruelty in one case may not be cruelty in another case.
What must be considered include the kind of life the parties
are used to, "their economic and social conditions", and the
"culture and human values to which they attach
importance."
40. The nature of allegations need not only be illegal conduct
such as asking for dowry. Making allegations against the
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spouse in the written statement filed before the court in
judicial proceedings may also be held to constitute cruelty.
41. In V. Bhagat vs. D. Bhagat (Mrs.), (1994)1 SCC 337, the
wife alleged in her written statement that her husband was
suffering from "mental problems and paranoid disorder". The
wife's lawyer also levelled allegations of "lunacy" and
"insanity" against the husband and his family while he was
conducting cross-examination. The Hon‟ble Apex Court held
these allegations against the husband to constitute "cruelty".
42. In Vijay kumar Ramchandra Bhate v. Neela Vijay Kumar
Bhate, (2003) 6 SCC 334 the Hon'ble Apex Court has
observed by taking into consideration the allegations levelled
by the husband in his written statement that his wife was
"unchaste" and had indecent familiarity with a person
outside wedlock and that his wife was having an
extramarital affair. These allegations, given the context of an
educated Indian woman, were held to constitute "cruelty"
itself.
43. 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
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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.
44. This Court, based upon the aforesaid discussions on the
issue of cruelty, has gone through the testimony of witnesses
and found that regarding cruelty meted out to the petitioner-
husband by the respondent-wife, there is absolutely no
evidence on record, except the allegations that the
respondent used to spend her salary on her parents.
Further, ground has been taken that when the petitioner-
husband used to go to Dumka at the working place of
respondent-wife, she refused to stay with her.
45. While on the other hand, the respondent-wife has stated
that before her marriage, she was a Teacher in Kadturva
Gandhi Girls School, Dumka and it was agreed before their
marriage that she will continue her service. She further
deposed that when her mother-in-law died, the petitioner
and his family members demanded money, then she has
given Rs.50,000/- to the petitioner in the year 2015 and also
Rs.50,000/- in the year 2017 by way of cheque. She has
deposited photo copy of her Bank passbook in support of her
claim. In her LIC Policy, the petitioner is her nominee and
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she used to pay the premium. She has categorically deposed
that she is ready and willing to stay with her husband.
46. From the discussions made hereinabove, it is evident that no
cruelty has been meted out to the appellant-husband by the
respondent-wife rather it is the appellant-husband who
tortured the respondent-wife for one reason or the other.
There is absolutely no evidence on record, except the
allegations that the respondent used to spend her salary on
her parents. But, admittedly, the appellant-husband even is
not paying expenses towards his sons rather it is the
respondent-wife who is incurring all expenses of both the
sons, who are residing with the respondent-wife. It further
appears that the respondent-wife is working in residential
school far away from the place of working appellant-
husband with his consent and nowhere it has come in
evidence that he ever insisted to reside together.
Furthermore, it appears that at no point of time the
appellant tried to save the marriage and admittedly no suit
for restitution of conjugal right has been filed by him.
47. On the basis of the discussion made hereinabove, this Court
is of the considered view that the appellant/husband has
failed to brought any cogent evidence on record in order to
establish the cruelty has been meted out to him by the
respondent/wife as such the behaviour of the respondent
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wife as alleged, does not amount to cruelty justifying
dissolution of the marriage.
48. Now coming to the issue of desertion, which is also taken as
a ground for decree of divorce.
49. 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 wilfull neglect of the petitioner by the other
party to the marriage, and its grammatical variations and
cognate expressions shall be construed accordingly.
50. It is pertinent to note that the word „desertion‟, as has been
defined in Explanation part of Section 13 of the Act, 1955,
means the desertion of the petitioner by the other party to
the marriage without reasonable cause and without the
consent or against the wish of such party, and includes the
wilful neglect of the petitioner by the other party to the
marriage, and its grammatical variations and cognate
expressions shall be construed accordingly.
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
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act of 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.
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.
55. Desertion as a ground of divorce differs from the statutory
grounds of adultery and cruelty in that the offence founding
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the cause of action of desertion is not complete, but is
inchoate, until the suit is constituted, desertion is a
continuing offence.
56. It is, thus, evident from the aforesaid reference of meaning of
desertion that the quality of permanence is one of the
essential elements which differentiate desertion from wilful
separation. If a spouse abandons the other spouse in a state
of temporary passion, for example, anger or disgust, without
intending permanently to cease cohabitation, it will not
amount to desertion. For the offence of desertion, so far as
the deserting spouse is concerned, two essential conditions
must be there, namely, (1) the factum of separation, and (2)
the intention to bring cohabitation permanently to an end.
57. 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.
58. 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.
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59. The law consistently has been laid down 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.
60. This Court, has again delved into the testimony of witnesses
and found that till 2019 the respondent-wife was living with
the petitioner in Patna, Ranchi, Muzaffarpur and
Bhuwaneshwar with their children as a family. This fact has
also been confirmed by the appellant-husband in the cross-
examination wherein at paragraph -17, he has admitted that
in between 2014-19, they were living together during
vacation in Dumka, Patna, Ranchi and Bhuwaneshwar. He
also admits that on 08.02.2019, he has attended a family
function at Bokaro.
61. The mandatory requirement to file any case u/S. 13 (1) (ib)
of Hindu Marriage Act, 1955 is of separation of two years.
Therefore, it is evident that the case is not maintainable
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u/S. 13 (1) (ib) of Hindu Marriage Act, 1955 making out a
case of divorce on the ground of desertion.
62. Accordingly, issue as framed by this Court is decided against
the appellant-husband and it is held that the judgment and
decree passed by the learned family court, denying the
decree of divorce passed to the appellant-husband on the
ground of cruelty under Section 13(1)(ia) of the Hindu
Marriage Act and on the ground of desertion under Section
13(1)(ib), requires no interference by this Court.
63. This Court, based upon the aforesaid discussion, is of the
view that the appellant/petitioner has also failed to establish
the element of perversity in the impugned judgment as per
the discussion made hereinabove, as such, this Court do not
find any merit in the appeal.
64. Accordingly, the instant appeal fails and is dismissed.
65. Pending interlocutory application(s), if any, also stands
disposed of.
(Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.)
5th December, 2025
A.F.R.
Alankar/
Uploaded on 09.12.2025
