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IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 111 of 2025
Ashutosh Kumar, aged about 37 years, Son of Late Bimal Rai Chauhan,
Permanent Resident of Village- Bara Pahari, Mansoor Nagar, P.O. & P.S.-
Sosarai, District-Nalanda (Bihar) and presently residing at Dimna Basti, Near
N.H. 33, P.O. & P.S. - M.G.M., Town-Jamshedpur, District-East Singhbhum
(Jharkhand) --- ---Petitioner/Appellant
Versus
Kala Devi @ Kalavati Devi, wife of Ashutosh Kumar, Daughter of -Shambhu
Sharan Chauhan, Resident of Village-Bela, P.O.-Dosut, P.S.-Bena Rahui, District
- Nalanda (Bihar). --- --- Respondent/Respondent
.......
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
For the Appellant : Mr. Abhilash Kumar, Advocate
For the Respondent :
Order No.02 / Dated 21st July, 2025
Per; Sujit Narayan Prasad, J.
The instant I.A. has been filed for condoning the delay of 23 days in filing
the instant appeal.
2. We have gone through the instant I.A. filed for condonation of delay under
section 5 of the Limitation Act.
3. Considering the reason assigned in the instant I.A., delay in filing the
instant appeal is hereby condoned, the instant I.A. is allowed and accordingly
stands disposed of.
Prayer
4. This appeal filed under Section 19(1) of the Family Court Act is
directed against the judgment dated 06.12.2024 and decree dated 12.12.2024
passed in Original Suit No. 755 of 2022 by Learned Additional Principal
Judge, Additional Family Court-2, East Singhbhum, Jamshedpur whereby
and whereunder the application filed under Section 13(1)(i-a) of the Hindu
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Marriage Act, 1955 (hereinafter referred to as '1955 Act') has been
dismissed ex-parte.
Submissions advanced by the learned counsel appearing on behalf of the
appellant:
5. Learned counsel for the appellant has taken the following grounds in
assailing the impugned judgment: -
(i) There is no concrete finding in arriving at by discarding the
evidence which has been produced on behalf of the appellant in order
to prove the case under Section 13(1)(i-a) of the Hindu Marriage Act,
1955 and as such the impugned judgment suffers from error and not
sustainable in the eye of law.
(ii) It has been contended that the Learned Family Judge merely on
the basis of the contradictions said to be therein the evidence of the
witnesses has passed the impugned judgment even though without
examining the true spirit of the said deposition.
(iii) The Learned Family Judge has also not appreciated the fact that
merely on the ground of non-availability of a particular date on which
the cruelty has been said to be committed by the husband upon the
wife, the impugned judgment has been passed.
6. Learned counsel for the appellant based upon the aforesaid grounds
has submitted that the impugned judgment therefore suffers from error and
hence not sustainable in the eye of law.
Analysis
7. We have heard the learned counsel for the appellant, at this stage and
needs to be referred herein that we have not issued notice to the
respondent-wife rather we thought it proper to go through the argument so as
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to come to the conclusion as to whether the case has been made out by the
appellant in warranting to issue notice upon the respondent-wife.
Factual Matrix
8. Before coming to the aforesaid submission, the factual background of
the case based upon that the application was filed by husband/appellant
under Section 13(1)(i-a) of the 1955 Act needs to be referred hereinbelow:
The appellant and respondent are governed by Hindu Law and the
respondent is the legally wedded wife of the appellant and their marriage
was solemnized on 09.06.2011 at the paternal house of the respondent at
Village Bela, P.S Bena Rahui, Nalanda, Bihar according to Hindu rituals.
After the solemnization of marriage, the respondent accompanied the
appellant to the house of the appellant at Dimna Basti, N.H. 33, P.S M.G.M,
Jamshedpur, East Singhbhum, Jharkhand. The marriage between the parties
has been duly consummated and both the parties were blessed with one
child.
From the beginning of the marriage, the nature and behavior of the
respondent towards the appellant and the relatives was very cruel and she
had no regard and respect for the appellant and the elderly members of his
family and she has the habit of quarreling with the appellant and his other
elder members in petty matters. The respondent is a sadistic lady and she
had/has the habit to insult the appellant in presence of their relatives and
friends.
The relation between the appellant and the respondent became strained
due to apathetic attitude of the respondent and from the inception the
respondent was not interested to make physical relation with the appellant
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without any cause. The respondent lost the decorum of family behavior. She
always used filthy and abusive language to the appellant and his family
members. The respondent frequently calls her parents to interfere in the
domestic matter of the appellant. The respondent wants to make the
appellant as hen pecked husband and the respondent and her parents all the
time threatened the appellant and his family members to implicate in false
case. The persistent demand by the respondent to stay away from the joint
family without any reasonable reason caused severe panic to the appellant.
The mother of the respondent also supported her matter and as such
the appellant is suffering from mental agony. However, the appellant decided
to live in separate accommodation with the respondent even then the
respondent mentally tortured the appellant. The appellant tolerated the ill
treatment of the respondent with a hope that the nature and behavior of the
respondent will be changed and the appellant will be able to lead a happy
conjugal life with the respondent but all the efforts made by the appellant
went in vain and the cruel nature and character of the respondent instead of
reducing it gradually increased towards the appellant.
The appellant was several times assaulted by the respondent and she
used filthy language and she never lived in peace with the appellant and the
appellant was surprised to know that the respondent without giving any
information and without taking any permission, left the matrimonial house
on 08.05.2022 and took shelter at her parental house at Village Bela, PS
Bena Rahui, District Nalanda, Bihar after taking all her belonging such as
gold ornaments, silver ornaments and the valuable articles and since then the
respondent is residing there along with her child without having concern or
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connection or relation with the appellant.
Immediately on coming to know about the aforesaid facts of leaving of
the respondent for her parent's house, the appellant went to the parents house
of the respondent to bring back the respondent to his own house and
requested the mother of the respondent as well as the respondent to come
back to her matrimonial house but the respondent stated that she is no more
interested to live as a wife of the appellant.
The respondent has deserted the appellant without any rhyme and reason
and the respondent has no right to desert the appellant from his conjugal life.
The cause of action arose against the respondent on and from 08.05.2022
when the respondent left the matrimonial house at Dimna Basti, near NH33,
PO & PS M.G.M, Jamshedpur, East Singhbhum, Jharkhand. The respondent
is now leading a free life of her own choice and she has abandoned her
marriage with the appellant and the respondent has been residing separately
since 08.05.2022 and both the parties last resided together before separation
at Jamshedpur.
Therefore, it has been prayed that it is desirable and necessary that the
marriage dated 09.06.2011 should be dissolved by a decree of divorce. And
there is no collusion or connivance between the parties in bringing the suit
for divorce. Accordingly, a suit for a decree of divorce dissolving the
marriage of the appellant with the respondent has been filed.
9. The Learned Family Judge on institution of the suit has issued notice
to the respondent-wife. It appears from the impugned judgment that the
respondent-wife even after taking endeavor for securing her appearance has
not chosen to appear, hence the matter was posted ex-parte.
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10. The appellant-husband has been provided an opportunity to adduce
evidence on his behalf and accordingly altogether three witnesses have been
examined:
(i) P.W.1-Ashutosh Kumar (appellant herein)
(ii) P.W.2-Shipu Kumar Verma
(iii) P.W.3- Ashok Kumar
11. P.W.-1, Ashutosh Kumar (Appellant) has stated that he got married
with the respondent on 09.06.2011 and started their marital life in
Jamshedpur but from the beginning his wife did not behave properly with
him and his family and from her wedlock one daughter was born who is
aged about 5 years. It is stated that his wife always fought with him and his
family without any reason and used to insult by saying that he is a scavenger
and did not provide her with marital happiness and did not respect him.
It is stated that when he was out for job, her wife used to abuse and
oust his father and never wanted to live with his old father and thus being
compelled he started living separately with his wife but only after two three
months she started fighting there also and one day when he came home for
lunch in the afternoon he saw that cahapati has been given to his father on
the floor and water in tin box and when he asked about that she got angry
and she said that she will not give food and water to his father and she had
no interest in having physical relation with him and due to which he suffered
mental torture.
It is further stated that he sent her wife in skill development center to
get trained where she made connection with some youths and used to chat
with those youths late in the night and used to talk vulgar things when he
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objected, she threatened him that he will be implicated in false case of
dowry and in spite of all efforts, she insulted him and also assaulted him.
It is also stated that his wife did not allow his elder brother and sister in
law to enter the house and misbehaved with them and used to give
intoxicating substance in tea and she wanted that he should be killed in road
accident and due to mental torture of his father he became mentally ill and
finally he was found dead beside a road and she compelled his father to
sleep in the floor during corona time.
On 08.05.2022, his wife left his house on the pretext of bringing
medicine and did not come back. She was searched by him but did not find
and then informed her in-laws then her in-laws started abusing him and
threatened him. It is stated that after three days, he came to know that his
wife stayed at Jamshedpur for 2-3 days with one youth and then went her
parental house along with her daughter when he went to bring her back, he
was assaulted by her in-laws and did not allow him to enter their house and
his wife also refused to have marital relation with him and then a panchayat
was held in presence of his family and relatives but she clearly said that she
is not willing to live with him and did not come back to Jamshedpur.
He further stated that he came to know that his wife lodges a case
against him and his family. He has again deposed on the question of Court
that since 08.05.2022 they are living separately and he has not filed any case
for bringing back his wife and his wife filed a case of torture regarding
dowry against him in Nalanda.
12. P.W.-2, Shipu Kumar Verma stated that the appellant got married with
the respondent and starting their marital life in Jamshedpur. It is stated that
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he used to come to the shop of petitioner/appellant and become friendly with
him. It is also stated that the petitioner/appellant is having a daughter but his
wife is a quarrelsome lady and misbehaved with the petitioner/appellant and
old father-in-law and she used to address her husband as a beggar and
scavenger and insulted in the presence of the neighbors and her wife
pressurized her husband to send his father to the village and whenever he
used to visit the house of the petitioner/appellant he saw that
petitioner/appellant's father is lying in the Verandah and sometimes
respondent/wife ousted her father-in-law and used to give water in tin
container and chapati on floor.
It is stated that even during Corona period she(respondent) never
allowed her father-in-law to enter in the house. It is stated that P.W-2 himself
as well her neighbors tried to maker her understand but they were threatened
not to interfere in her domestic matter and when the appellant did not send
his father to the village, she becomes crueler. It is stated that appellant even
got his wife trained in skill development center but there she got friendly
with some youths and started chatting with them when her husband objected
to it, she threatened her husband to implicate a false case against him and
appellant told him that his wife is not ready to continue conjugal relation
with him and did not allow the appellant to enter the room.
It is stated that Kalawati Devi during the lifetime of father of the
appellant was adamant in ousting her father-in-law and several times ousted
him from the house after abusing him in his presence due to which her
father-in-law remained mentally ill and started moving here and there after
being fed up with this torture. It is also stated that the petitioner/appellant
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told P.W-2 that his wife several times used to put some narcotics powder in
his tea and he used to feel drowsiness while driving motorcycle and
appellant told him that on 08.05.2022 his wife on the pretext of taking
medicine went out from the house and did not come back, appellant
searched but did not found and came to know that she has gone to her
parental house and then appellant went there to bring back her wife but she
misbehaved and refused to live with him. On the court question, he has
stated that petitioner is his friend and the girl was having affair, so she fled
away and the petitioner/appellant tried to bring back her but she refused.
13. P.W.-3, Ashok Kumar has stated that he is a tenant in the house of the
appellant and respondent is a wife of appellant and without any reason her
wife used to fight with her husband saying rag picker and also used to insult
his old father-in-law and pressurized her husband to send his father to
village and whenever, the appellant was out of house his wife used to oust
her father-in-law from the house.
It is stated that several times he saw that her wife give chapati to her
father-in-law on floor and water in tin container and always threatened her
husband to be implicated in false dowry case and to such an extent he
became mentally ill and several times P.W.-3 and his wife tried to make
Kalawati Devi understand but she was adamant.
She never respected her husband and used to put intoxicating substance
in food and due to this misbehavior petitioner/appellant remained unhappy
and it is also stated that Kalawati Devi had illicit relationship with youths in
skill development center and used to chat with them and on 08.05.2022
Kalawati Devi left her matrimonial home on the pretext of taking medicine
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along with her daughter and never come back and after making search,
appellant came to know that she had gone to her parental place at Nalanda
when appellant went there to bring back, he was also abused by his in-laws
and his wife refused to have conjugal relation with him.
14. It is evident from the evidences so deposed by the witnesses, the
learned family judge has considered the issues framed as to whether the
appellant has been able to make out a case for divorce with the respondent
on the ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act,
1955.
15. Learned Family Judge on consideration of the evidence has found that
the element of cruelty has not been proved and therefore the judgment has
been passed answering the issue against the appellant-husband which is the
subject matter of the present appeal.
16. This Court has gathered from the arguments advanced on behalf of the
learned counsel for the appellant and factual aspect as referred hereinabove
that the seminal issue involved in this appeal as to whether the findings
recorded by the learned Family Judge with respect to element of cruelty
having not found to be substantiated can be said to suffer from an error.
17. The ground which has been taken on behalf of the appellant needs to be
considered in the light of the factual as also the legal background taking into
consideration the issue that the divorce has been filed under Section 13(1)(i-a)
of the 1955 Act.
18. Cruelty has not been defined under the statute however the cruelty has
been interpreted by the Hon'ble Apex Court in the catena of decisions, three
of the same is being referred herein below:
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(i) Dr. N.G. Dastane Vs. Mrs. S. Dastane [(1975) 2 SCC 326]
(ii) Shobha Rani Vs. Madhukar Reddi [(1988) 1 SCC 105]
(iii) V. Bhagat vs. D. Bhagat (Mrs.), (1994)1 SCC 337
19. The word 'cruelty' has been defined by Hon'ble Apex Court in the
judgment rendered in Dr. N.G. Dastane Vs. Mrs. S. Dastane [(1975) 2 SCC
326], wherein it has been held that the Court is to enquire as to whether the
charge as cruelty, is of such a character, as to cause in the mind of the
petitioner, a reasonable apprehension that, it will be harmful or injurious for
him to live with the respondent.
20. 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.
21. 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."
22. 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
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used to, "their economic and social conditions", and the "culture and human
values to which they attach importance."
23. 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.
24. 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".
25. 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.
26. 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,
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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.
27. 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 one which is adversely affecting the other.
28. It is evident from the aforesaid decisions that day to day quarrel or
normal wear and tear of marriage would not constitute mental cruelty as a
ground for divorce, rather, cruelty is a word which can be sensed by taking
into consideration the nature of cruelty in its entirety.
29. This court, based upon the proposition which has been laid so far as
the interpretation of the word "cruelty" is concerned is now reverting to the
evidence which has been recorded on behalf of the appellant.
30. The evidences are being again reiterated so as to come to the
conclusion as to whether the element of cruelty can be said to be proved as
per the material which has been placed before the learned Family Judge.
31. It has been deposed by P.W.1 who is the husband that he got married
with the respondent-Kalavati Devi on 09.06.2011 as per Hindu Rites and
Customs and started their marital life in Jamshedpur but from the beginning
his wife did not behave properly with him and he is having one daughter out
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of the wedlock aged about five years. His wife always without any reason,
fought with him and his family and she used to insult him by saying that he
is a scavenger and did not provide her with marital happiness and did not
respect him. It has been deposed by him that she never wanted to live with
his old father and used to abuse his old father as also used to oust his father
when he used to be out for job. The reference of such cruel behavior has
been uttered.
32. P.W.-2, namely, Shipu Kumar, has also supported the element of
marriage said to be solemnized in between the husband and the wife. It has
been stated by P.W.-2 that one daughter has taken birth from the wedlock but
his wife is quarrelsome lady and misbehaved with the petitioner as also his
old father. He has stated that even during the period of Corona, she has
misbehaved with his father. He has also stated that he has taken all care to
improve in skill development center but even then, the cruel behavior was
continued towards father and appellant himself.
33. P.W.-3, namely Ashok Kumar has also stated regarding the issue of
insulting by the wife towards the husband and his old father. It has been
stated that on 08.05.2022, her wife left her matrimonial home on the pretext
of taking medicine along with her daughter and thereafter, did not come
back.
34. Since, we have referred the judgment passed by the Hon'ble Apex
Court regarding the leniency of interpretation of the word "cruelty" and the
minor or pretty behavior cannot be termed to be a cruelty rather the cruelty
has been defined that if a cruel behavior, serious in nature, can only be
construed to be cruelty.
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35. This court has examined the evidence of P.W-1, P.W-2 and P.W-3 so as
to come to the conclusion that whatever instances have been given in the
evidence cannot be construed to be cruelty within the meaning of cruelty as
defined by the Hon'ble Apex Court.
36. The Hon'ble Apex Court since has interpreted the word "cruelty" that
all type of the quarrel or the lenient penny issues cannot come under the fall
of the cruelty. Here what has been deposed either by P.W.1 or P.W.2 or P.W.3
the same is nothing but a routine affair. However, the fact has come of
misbehaving with the old father but the learned Family Judge has considered
the same and has given specific finding that the same cannot be said to be
cruel behavior meted out by her wife in absence of any cogent evidence to
prove the same.
37. The learned Family Judge has also taken into consideration that the
evidence which has been recorded either of the P.W.1 or P.W.2 or P.W.3 all
are in contradiction. P.W.2 and P.W.3 has said that they saw the respondent
used to give chapati to her father-in-law on the floor and water in tin
container but they have not mentioned a single date as to when they saw the
said incident. Even P.W.-1 has corroborated the said allegation but he has
also not stated any single date as to when his wife gave chapati to his father
on floor and water in a tin container.
38. The learned Family Judge has also considered the testimony of two
other witnesses who have corroborated the allegations made in the plaint that
from the beginning of the marriage the respondent Kalawati Devi quarreled
with the petitioner and his father and misbehaved with them and insulted the
petitioner and his old father and addressed the petitioner as rag picker and
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beggar but these aspects of the matter has not been corroborated by giving
specific date in the plaint nor any date has come in the evidence of the
petitioner or other two witnesses as to when the respondent quarreled with
his father and caused and assaulted them.
39. Learned Family Judge, based upon the aforesaid, has come to the
conclusion that levelling such allegation cannot be construed to be element
of cruelty. It has been taken into consideration that a case has been instituted
under Section 498A of the Indian Penal Code and to that the observation has
been given that why a married female would file a case under Section 498A
without any rhyme or reason. P.W.3 has stated in the evidence that the wife
on her own has left the matrimonial home to go parental house without
informing her husband but even the learned Family Judge has not found any
cogent evidence to that effect as to whether the respondent-wife on her own
has left the house or she was forced to leave house so as to amount the
element of cruelty.
40. The learned Family Court has also made an observation that if the
appellant-husband is willing to live with the wife then he should have filed a
case under Section 9 of the Hindu Marriage Act to show his bona fide but he
has not done so.
41. Learned Family Judge based upon the aforesaid consideration
particularly non-availability of element of cruelty as per the evidence so
recorded on behalf of the P.W-1, P.W-2 & P.W-3 has come to the conclusion
that the element of cruelty could not be proved.
42. This Court in view of the aforesaid consideration made by the learned
Family Judge and taking into consideration the evidence of the witnesses
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P.W-1, P.W-2 & P.W-3 as also taking into consideration the definition of the
word "cruelty" is of the view that the element of cruelty has correctly not
been found to be proved by the learned Family Judge.
43. Accordingly, this Court is of the view that impugned judgment needs
no interference and the appeal is dismissed, accordingly.
44. Pending I.A, if any also stands disposed of.
(Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.)
Arpit/Basant/ (A.F.R)
