Jharkhand High Court
Jaykant Jayhind vs Jyoti Kumari on 18 June, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No.124 of 2022
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Jaykant Jayhind, aged about 45 years, S/o Gangadhar Mandal, R/o Village-
Korka, PO-Korka, PS-Pathargama, District-Godda, Jharkhand
.......... Appellant
Versus
Jyoti Kumari, W/o Jaykant Jayhind, R/o Village-Korka, PO-Korka, PS-
Pathargama, District-Godda, Jharkhand, At present residing at D/o
Praduman Sah, PO + PS-Asarganj, District-Munger, Bihar
... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Manoj Kumar Choubey, Advocate
For the Respondent : --------------
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C.A.V on 12.06.2025 Pronounced on 18/06/2025
Per Sujit Narayan Prasad, J.
The instant appeal under section 19(1) of the Family Courts Act,
1984 is directed against the judgment dated 30.09.2022 and the decree
dated 15.10.2022 passed in Original Suit No.112 of 2020 by the learned
Principal Judge, Family Court, Godda (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 marriage between the parties was solemnized on 17.11.2016
according to Hindu Rites and Custom. After the marriage the
respondent-wife went to her matrimonial home at village-Korka and
started to lead her conjugal life with the appellant-husband.
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(ii) It is alleged that the respondent-wife has no obeisance towards the
appellant-husband and after three months of the marriage she started
torturing the appellant-husband in various ways with cruelty and she
never treated him as husband. She always used to quarrel with the
petitioner and hurl abuses upon him in scandalous languages and
threatened to kill him. The respondent-wife was reluctant to lead
matrimonial life with the appellant-husband and used to disrespect
him and even refused to serve food to him.
(iii) The respondent-wife stopped wearing "Mangal Sutra" in her neck
and when the appellant-husband requested to wear the same she
started abusing the appellant-husband in filthy and vulgar languages
and showed intention to snap the tie of sacrosanct nuptial bond.
(iv) It is alleged that the respondent-wife used to talk with another
person by her mobile phone. She always used to open the main gate
of the house in the mid-night and when the appellant-husband asked
about the same, she started quarreling with him.
(v) The appellant reported the matter to her parents but the brother of
the respondent-wife threatened the appellant with dire
consequences. The life of the appellant become hell due to ill
behavior of his wife.
(vi) It is alleged that the respondent-wife used to keep "Ether" with her
and she used it in making the appellant-husband unconscious during
the nights. Due to that reason, the appellant fell ill and treated
himself and the doctor advised him to avoid consuming
wine/alcohol whereas the appellant is a teetotaler. The appellant
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revealed that his wife keeps 'Ether" and incense liquid scent with
her.
(vii) The appellant was working as teacher at Government Upgraded
Middle School at Jitalpur, Littipara, Pakur. It is alleged that the
respondent-wife used to threaten the appellant with dire
consequences by saying to kill him and would take his job, due to
which the appellant-husband was compelled to leave his job of a
teacher on 01.06.2019.
(viii) It is alleged that the respondent-wife used to go to her 'maike'
without consent of the appellant or his family members. It is alleged
that the respondent-wife has illicit relationship with Dipak Baidh
and for that reason, she refused to make physical relationship with
the appellant. It is stated that out of the wedlock of the appellant and
the respondent, no child was born.
(ix) It is alleged that the respondent-wife openly threatened the appellant
to kill him due to which he was compelled to make a complaint
against her on 22.08.2020 to the Officer-in-charge, Pathargama PS
and the S.P, Godda about the threats and her illicit relationship.
(x) It is alleged that on 30.07.2019, the respondent-wife left the
matrimonial home with all her belongings including gold ornaments
and clothes on her own without consent of the appellant and since
then she is living in her 'maike'. Thus, she has deserted the appellant
and since then there is no physical relation with her. Due to ill
behaviour of the respondent, the life of the appellant-husband has
become hell.
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3. On the aforesaid ground of cruelty, adultery 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 Original Suit No.112 of 2020,
the notices were issued upon the respondent through Nazarat as well as
through Registered Post and lastly through local daily Hindi Newspaper,
namely, Prabhat Khabar on 26.07.2021 by the learned Family Judge but
the respondent-wife did not appear and thereafter vide order dated
02.09.2021 the matter was proceeded for ex-parte hearing against the
respondent-wife.
5. Learned Family Judge, after institution of the said case, taking in
to consideration of the pleading of the appellant has formulated the issues
and has decided the lis by refusing to grant divorce to the
petitioner/appellant.
6. The aforesaid judgment by which divorce has not been granted
is under challenge by filing the instant appeal.
Submission of behalf of the appellant-husband:
7. Mr. Manoj Kumar Choubey, 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 in to consideration but without appreciating the same
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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 suffers from an error.
(iii) It has been contended that the appellant has been meted out
with the cruelty as also the respondent is living separately and, as
such, both the grounds are available as would be evident from the
evidence adduced on behalf of the appellant-husband, but the
same has not been taken into consideration.
(iv) It has been contended that though the learned Family Judge
has proceeded the matter for ex-parte hearing after complying due
course of law 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 deserted the
appellant and committed cruelty upon him by her cruel behaviour
and act.
8. The learned counsel, based upon the aforesaid ground, has
submitted that the impugned judgment and decree, therefore, needs
interference said to be perverse.
Analysis:
9. It needs to mention herein that vide order dated 08.11.2023
notices were issued to the respondent-wife by a co-ordinate Bench of this
Court but the respondent-wife has refused to accept the notice and vide
order dated 22.02.2024 the notice has been deemed to be validly served
and the instant appeal was admitted.
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10. We have heard the learned counsel appearing for the appellant,
gone through the Trial Court Records, the impugned judgment, as also the
testimonies of the witnesses and the documents exhibited therein.
11. The learned Family Judge has formulated altogether six issues,
for ready reference the same are being quoted hereinbelow:
i) Whether the suit as framed is maintainable?
ii) Whether the plaintiff has valid cause of action for the suit?
iii) Whether the defendant/opposite party wife, after her
solemnization of marriage with plaintiff/petitioner-husband, had
sexual intercourse with any person other than plaintiff and thus
guilty of extra marital intercourse or adulterous act under section
13 (1) (i) of Hindu Marriage Act, 1955 ?
iv) Whether the defendant/opposite party-wife, after her
solemnization of marriage with plaintiff/petitioner, treated the
plaintiff-husband with cruelty under section 13 (1) (i-a) of Hindu
Marriage Act, 1955 ?
v) Whether the he defendant/opposite party-wife has deserted the
plaintiff/petitioner-husband for a continuous period of not less
than two years immediately preceding the presentation of this
petition, and thus committed desertion of her husband
(plaintiff/petitioner) under section 13 (1) (i-b) of Hindu Marriage
Act, 1955?
vi) Whether the plaintiff/petitioner-husband Jaykant Jayhind is
entitled for relief of 'dissolution of his marriage with
defendant/opposite party-wife Jyoti Kumari, by passing the
decree of divorce under section 13 (1) (i) and/or Sec.13 (1)
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(i-a) and/or sec. 13 (1) (i-b) of Hindu Marriage Act, 1955 and
any other relief or reliefs?
12. The issue pertaining to ground for divorce is by formulating a
specific issue whether the plaintiff is entitled for dissolution of marriage
by passing the decree of divorce as issue no.VI.
13. But first of all, the learned Family Judge has taken into
consideration the issue no.(iii) i.e., the ground of adultery. The learned
Family Judge has considered the evidence adduced on behalf of the
plaintiff/appellant for deciding the issues involved in Original Suit No.112
of 2020.
14. 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 appellant wherein the element of cruelty, adultery and
desertion has been shown by the plaintiff-husband.
15. During the trial, four witnesses have been examined on behalf of
the appellant-husband who himself has been examined PW1.
16. At para-21 he has admitted that his wife (the respondent) has not
lodged any case with regard to dowry prohibition against him.
17. In his examination on oath, the appellant-husband has narrated
entire things as pleaded in the plaint about his marriage with the
respondent. He has stated on oath that he has no issue out of the wedlock
with the respondent. He has stated about change in behaviour of the
respondent just after three months of marriage. He has stated that the
respondent started quarreling with him and she used to subject him to
mental cruelty, abused him with filthy language and threatened to kill him.
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He has deposed that during stay with him at her matrimonial house the
respondent never wore 'Mangal Sutra'.
18. She used to talk over her mobile phone with another man. She
used to keep the main gate of house open in the mid night and on asking
to do so, she never replied in a satisfactory manner rather started quarreling
with the appellant. When the appellant reported the matter to his in-laws,
they rebuked him and threatened with dire consequences.
19. He has deposed that in the month of July, 2018 he fell seriously
ill and went for his treatment to Gwalior where doctor advised him to avoid
alcohol as the doctor detected much alcohol content inside his body. The
appellant never used to take alcohol as he is teetotaler. He has deposed that
his wife(respondent) used to administer 'Ether' to him through smell by
his nose and she used to sprinkle it on his body, in night he having found
her using 'Ether' for making him smell. Then he tried to snatch it from her
hand but she threatened him and then he realized the alcohol content
detected in his body has actually come from 'Ether' which has been
regularly administered upon him by the respondent.
20. At para-13 of his examination-in-chief on oath, he has stated that
due to cruel behaviour of the respondent he resigned from his service as
she threatened him to kill and after that she would take his service. At para-
14 he has deposed that the respondent has illicit relation with Dipak Baidh
and she has gone several times to her 'maike' with the said person without
informing him and she also refused to make any physical relationship with
the appellant.
21. In cross-examination, the appellant-husband admitted the factum
of his marriage with the respondent as per Hindu rites and custom. At para-
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19 of his cross-examination by the learned Family Court, he has
specifically stated that he went to Gwalior to got himself treated by the
doctor in the month of July 2019. He further stated in the same paragraph
that he went to Gwalior as there was a Teacher Training Programme. On
Court question, the appellant has stated that he got treated by the doctor at
Jain Hospital, Ashok Nagar, Gwalior and the relevant prescriptions were
given to his learned counsel who advised him that now there is no
requirement of the said documents. He further stated that he does not
remember the name of the doctor who has treated him. He further stated
that his wife (the respondent herein) did not return with him from Gwalior.
He again stated that he does not know whereabouts of the respondent.
At para-22 of his cross-examination, he has stated that her wife has
threatened to kill him over mobile phone but he does not know the number
of that mobile phone/sim. He further stated that in this regard he informed
the Pathargama PS and office of S.P, Godda through the registered post
but never instituted a case for the said occurrence.
At para-24 he has deposed that he does not know the person with whom
the respondent has illicit relationship as she used to make him smell 'Ether'
for his unconsciousness and then she was having sexual relations with
other man. Again, in the same paragraph, he has deposed that he never seen
the respondent to have illicit sexual relation with another person. He
further deposed that on the return journey from Gwalior in the year 2019,
his wife took the picture of the said person from his mobile phone but she
never returned the said mobile phone to him.
At para-26 he has admitted the fact that he never instituted any
case against the respondent to make him unconscious at night by making
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him smell 'Ether'/scented oil. He further deposed that when he reported
the same to her inlaws, they used to threaten him with dire consequences.
He has admitted that he never instituted any case against his inlaws about
the said threatening.
At para-27, he has stated that he suspected 'Dipak Mandal' of having
illicit relationship with his wife but he did not array 'Dipak Mandal' as
opposite party in the divorce suit. He has admitted that he is having no
proof of any illicit relationship of Dipak Mandal with the respondent.
At para-28 he has admitted that due to cruel behaviour of his wife
(respondent) he was compelled to resign from his service which he has
written in the said resignation letter but the copy of the same has not been
produced in the Court as documentary evidence.
22. PW2 Diwakar Pandit has stated in his affidavited examination-
in-chief dated 09.03.2022 that he knows both the parties. Further stated
likewise PW-1 that OP used to abuse and assault petitioner (appellant
herein) and spoke with him in objectionable language, used to threaten him
with dire consequences and also did not cook food. She never put on
'Mangal Sutra' and never apply sindur (vermilion) and if petitioner ask her
for same, she used to humiliate him. She used to talk with another man and
in nights she used to keep main gate of his house open, she has illicit
relation with stranger. She used to administer 'Ether' upon petitioner to
make her unconscious and for that reason when he fell seriously ill and
went to Doctor at Gwalior then doctor told him that his blood had alcohol
content whereas he never took any alcohol.
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Due to threat by wife, petitioner resigned from his service as he was
teacher in Government school. On 30.06.2019 she went to her 'maike' and
she has no relation with petitioner.
In Court question, he has stated that petitioner is his friend.
Petitioner's marriage has been solemnized with Jyoti Kumari. Petitioner
used to tell him that his wife kept main gate of his house open in nights
and she always remained busy in talking with other man and when he
forbids her, she used to humiliate her by abusing. Petitioner used to say
that his wife does not wear 'Mangal Sutra' and she does not apply vermilion
in her head. Petitioner used to say that when he goes to sleep, his wife used
to sprinkle intoxicants due to which his health had deteriorated and doctor
said that he has addictive inside her body. Petitioner was a teacher in Govt.
School, but on account of quarrel with the O.P. he lost his job. O.P. left the
house of the petitioner in the year 2016 since then she is living at her
'maike'.
23. PW-3 Patel Rana has stated in his examination-in-chief that he
knows both the parties. Further stated "exactly like PW-2 and PW1. He
has added vide para 9 that petitioner bas snatched bottle of 'Ether' from
her several times in nights, as she was in habit of making him unconscious
in nights and going outside the house. He has also stated that on
30.06.2019 she left his house and went to her 'maike' and since then there
is no relation.
On court question, he has stated that he knows the petitioner because
he is his neighbour and he used to teach his children. Jaykant Jayhind's
marriage has been solemnized with Jyoti Kumari six years before, they
have no any issue/child. After marriage his wife lived for one year with
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him in proper way thereafter dispute erupted between them. After one year
of marriage petitioner started telling him (this witness) that his wife's
behaviour is not good, she abuses him and threatens him to kill, she never
wears 'mangal-sutra' or apply sindur (vermilion), never cook food and
threatens him to assault. After that petitioner fell ill and on diagnosis at
Ashok Nagar, Gwalior (M.P.) the doctor told him that his blood has
alcohol content. Later due to torture by OP he resigned from service.
Petitioner has told all these things. For last three years his wife does not
live with him. His wife has not filed any case. He seldom goes to
petitioner's home, instead petitioner used to come to give tuition to his
children.
24. PW-4 Rupesh Kumar has stated in his affidavited examination-
in-chief dated 11.07.2022 stated likewise PW-1 & PW-2 & PW-3.
In Court question, he has stated that this case has been filed by the
petitioner/Jaykant Jayhind against his wife Jyoti Kumari for dissolution of
marriage. Petitioner's marriage has been solemnized with Jyoti Kumari on
17.11.2017 as per Hindu rites and customs. At present Jyoti Kumari lives
at her 'maike'. When the O.P. lives with the /petitioner then her behavior
was not good. O.P. pressurized the petitioner to leave his job, at that time
petitioner was a govt. teacher. On 30.09.2020 O.P. left the petitioner and
went to her 'maike' and since then she never came back. Both have no any
issue. The witness has stated that as he has been his student so he is
acquainted with facts of the case.
25. The learned Family Judge has appreciated the entire facts and
evidence and has come to the conclusion that the appellant-husband has
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failed to make the ground either cruelty, adultery or desertion and, as such,
has dismissed the suit which is under challenge in the instant appeal.
26. The fact about filing of suit on the ground of cruelty, adultery
and desertion is admitted one as per the evidences adduced on behalf of
the appellant.
27. The appellant-husband has tried to establish the element of
cruelty, adultery and desertion upon him at the hands of the respondent-
wife.
28. The appellant-husband all along has alleged the issue of cruelty,
adultery and desertion which he was subjecting to by his wife and in order
to establish the same the evidences has been laid as has been referred
hereinabove.
29. This Court while appreciating the argument advanced on behalf
of the appellant on the issue of perversity needs to refer herein the
interpretation of the word "perverse" as has been interpreted by the
Hon'ble Apex Court which means that there is no evidence or erroneous
consideration of the evidence.
30. The Hon'ble Apex Court in Arulvelu and Anr. vs. State
[Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206
while elaborately discussing the word perverse has held that it is, no doubt,
true that if a finding of fact is arrived at by ignoring or excluding relevant
material or by taking into consideration irrelevant material or if the finding
so outrageously defies logic as to suffer from the vice of irrationality
incurring the blame of being perverse, then, the finding is rendered infirm
in law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27 of the said
judgment reads as under:
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"24. The expression "perverse" has been dealt with in a
number of cases. In Gaya Din v. Hanuman Prasad [(2001) 1
SCC 501] this Court observed that the expression
"perverse" means that the findings of the subordinate
authority are not supported by the evidence brought on
record or they are against the law or suffer from the vice of
procedural irregularity.
25. In Parry's (Calcutta) Employees' Union v. Parry & Co.
Ltd. [AIR 1966 Cal 31] the Court observed that "perverse
finding" means a finding which is not only against the weight
of evidence but is altogether against the evidence itself.
In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC
665 : AIR 1994 SC 1341] the Court observed that this is not
a case where it can be said that the findings of the authorities
are based on no evidence or that they are so perverse that no
reasonable person would have arrived at those findings.
26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant
58] the Court observed that any order made in conscious
violation of pleading and law is a perverse order.
In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed
that a "perverse verdict" may probably be defined as one
that is not only against the weight of evidence but is
altogether against the evidence.
In Godfrey v. Godfrey [106 NW 814] the Court defined
"perverse" as turned the wrong way, not right; distorted
from the right; turned away or deviating from what is right,
proper, correct, etc.
27. The expression "perverse" has been defined by various
dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current
English, 6th Edn.
"Perverse.--Showing deliberate determination to behave
in a way that most people think is wrong, unacceptable or
unreasonable."
2. Longman Dictionary of Contemporary English,
International Edn.
Perverse.--Deliberately departing from what is normal
and reasonable.
3. The New Oxford Dictionary of English, 1998 Edn.
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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."
31. In the instant case, the ground for divorce has been taken on the
ground of cruelty, adultery and desertion.
32. 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.
33. 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.
34. 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.
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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."
35. 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."
36. 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.
37. 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".
38. In Vijaykumar Ramchandra Bhate v. Neela Vijay Kumar
Bhate, (2003)6 SCC 334 the Hon'ble Apex Court has observed by taking
into consideration the allegations levelled by the husband in his written
statement that his wife was "unchaste" and had indecent familiarity with a
person outside wedlock and that his wife was having an extramarital affair.
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These allegations, given the context of an educated Indian woman, were
held to constitute "cruelty" itself.
39. It needs to refer herein that it is settled position that a proceeding
under Hindu Marriage act is not criminal proceeding where proof beyond
reasonable doubt is required rather preponderance of probability" is
enough. However, the character of spouse affects his/her reputation in the
society. Therefore, it is established proposition of law, that not only the
pleading in respect of charge of adultery should be specific, it should also
be established in all probabilities. The accepted rule, therefore, is that
circumstantial evidence is all that can normally be expected in proof of
charge; However, the circumstances must be such as to lead to fair
inference, as a necessary conclusion. In other words, proof required to
prove adultery need not necessarily be what is at times said to be proof
beyond a shadow of doubt, "It need not reach certainty but must carry a
high degree of probability".
40. Now adverting to the factual aspect it is evident from the
impugned order that the allegations specific to the ground of alleged
adultery has been made by petitioner/plaintiff-Husband vide paras-
9,10,12 and 14 of his petition/plaint. Starting with paras-9 and 10 of the
petition/plaint, the plaintiff-husband has alleged that OP/his wife always
uses to talk with another person on her mobile phone and in the mid-nights,
she used to open the main gate of the house and on inquiry she did not give
satisfactory reply instead started quarreling. It is further alleged that she
used to keep 'Ether' with her, make petitioner unconscious, several times
such 'Ether' bottle and petitioner several times had seen the said bottle in
her hand as such the allegation of petitioner is that OP used to make him
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unconscious in nights under spell of 'Ether' and incense liquid and then
she used to go out of his house for her illicit relation with someone. In
para-14, his specific allegation is that OP has illicit relation with Dipak
Baidh and she has gone several times to her 'maike' with said person
without informing petitioner and she also refuse to make any physical
relationship with petitioner.
41. The aforesaid pleading has been taken care of by the learned
Family Judge and has observed that the petitioner has not alleged that he
has ever seen any specific incident confirming his suspicion that she being
in adulterous relationship. The learned Family Judge while taking in to
consideration the established proposition of law, that not only the pleading
in respect of charge of adultery should be specific, it should also be
established in all probabilities has negated the claim of the petitioner.
42. The learned Family Judge further observed that the petitioner
has not pleaded that if she used to keep open the gate, where she used to
go or who used to come to meet her, even if he allegedly remained lying
unconscious at that time, but naturally he must have inquired from the
neighboring people or noticed anything incriminating regarding her going
out in nights or coming of somebody inside, What he gathered from
neighboring people or other evidences on this point has not been pleaded
by him.
43. Thus, from the aforesaid it is evident that the learned Family
Judge has considered the fact that the appellant-husband has miserably
failed to establish the allegation of illicit relationship of the respondent-
wife with other person which also amounts to "cruelty' upon the
respondent-wife at the hands of the appellant.
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36. At para-16 to 20 of the impugned judgment, the learned Family
Judge after going through the evidence on record has explained in detail
about the non-proving of the allegation of the adulterous life of the
respondent-wife which reads as under:
16. Point No.iii (contd.): Now coming to the evidence brought on the
record on this point. Altogether, 4 witnesses have been examined on
behalf of plaintiff.
Let us start with deposition of petitioner himself who has examined
himself as PWI (Jaikant Jayhind). He has stated in para 2 of his
affidavited chief examination that OP used to talk with another man on
mobile phone. In para 8 he alleges that in nights she used to keep open
main gate of house and on asking she never gave satisfactory reply and
she had illicit relation with some one. In paras 10.11 and 12 he has stated
that when once he fell ill and doctor detected that his blood has alcohol
content then he came to understand that his wife/OP used to administer
him ether to make him unconscious and also sprinkle incense liquid on
his body and when in nights he tried to snatch ether from her and she
resisted then he could realize that alcohol in his body has come due to
her administering ether through his nose smell.
However, In his examination by Court, he has conceded that has no
knowledge with whom she use used to talk on mobile (Para 23), that she
used to talk on phone and administer ether to her making his brain weak
[para 23 of court examination). In para 24 he has conceded that he has
no knowledge as to with whom his wife has illicit relation. He has
conceded that he has never seen any relation making by her with any
man and he alleges that because she used to make him unconscious.
In para 24 he has stated that once in TRAIN his wife/OP took photo "her
another man" in his mobile phone but she kept that mobile with her, and
this incident is of the time when he was returning from Gwalior in year
2019 after treatment. Here it may be noted that at one place in para 20
petitioner himself states that on returning from Gwalior his wife/OP did
not come with him, but on the other hand he alleges in para 24 that on
return journey from Gwalior she took photo of said man with whom she
has illicit relation using petitioner's mobile which mobile she kept with
her. How both narrations could coexist.
In para 26 he has stated that in nights OP used to make him unconscious
sometimes by administering ether or sometimes by making him smell
incense liquid etc but has never lodged any case in any police station. In
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para 24 he has admitted that he suspected that Deepak Baidh had illicit
relation with his wife but he has no any proof about this.
17. Re: POINT No. III (contd.): A look to entire narration of events show
that petitioner has not mentioned name of Dipak Baidh in his chief-
examination and in his examination by Court vide para 27 he has
admitted that he just suspects but he has no proof that Deepak has any
illicit relation with his wife; whereas in his petition he has made specific
allegation against Deepak vide para 14 of petition.
Secondly, whatever he has inferred/suspected is his own Suspicion and
surmises based on his own assumptions or may be, illusory perception,
that if alcohol has been found in his body despite his being teetotaler, it
must have been due to OP who must have administered ether and other
incense liquid upon her to make him unconscious. Whereas there is
neither any medical document produced by him showing that such
detection of alcohol was actually made by doctor and nor there is no
scientific opinion before this court that an ether if administered as smell
through nose may appear as alcohol content in body.
His another allegation of her remaining busy in calling another persons
is hardly tenable as in examination by court he has conceded in para 23
that he has no knowledge with whom /which man his wife used to talk on
mobile phone. The petitioner has neither any knowledge with which man
his wife has illicit relation nor he has ever seen her in any relation with
any man [Para 24] and his claim that she took photo of said man in train
while coming back from Gwalior in year 2019 which his wife snatched
from him is negated by his own statement of para 20 that his wife did not
come back from Gwalior with him. Thus it is found that plaintiff has not
made this allegation with any specificity rather his allegation appears
based on just suspicion and surmises.
Re: POINT No. III (contd.): Now coming to testimonies of other
witnesses. PW3 Deewakar Pandit who in his affidavited typed chief-
examination has been seen supporting the case of plaintiff but in his
examination by Court he has admitted that everything has been told to
him by petitioner himself [PW2 in para 14.15.16 etc). Likewise PW3 is
Patel Rana who has also supported entire allegation of petitioner in hiş
affidavited typed chief examination but in his Examination by Court he
has admitted vide para 14 that it is the petitioner who has told these
things to him. In para 17 he has added that he seldom goes to House of
petitioner. PW4 is Rupesh Kumar who has claimed that as he has been
student of petitioner so he is acquainted with the facts.
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Re POINT No. III (contd.): A look to testimonies of all these witnesses
show that none of the witness have any personal observation OR any
personal independent knowledge about the fact of the case and
allegations raised by petitioner and everything they told is based upon
what petitioner told or narrated to them. None of the witness, some being
nearest neighbour too like PW2, has claimed that they have ever seen OP
going out of house in night or someone coming to her house while she
used to keep the gate open, none of the witness stated that they have seen
the petitioner's diagnostic prescription showing alcohol content in is
body, even that medical document not produced by petitioner, none of
the witness stated that they ever saw OP with any other man or ever saw
the petitioner lying unconscious under influence of any intoxicant
administered by OP. The petitioner has neither produced the mobile
phone or any document like call details etc showing any frequent talks,
chats of his wife with any other man. The allegation that OP did not allow
petitioner to make physical relation with her is not substantiated either,
and even if it is so, it does not lead to any inference that OP may be in
adulterous relationship with any other person.
Re: POINT No. III (contd.): In short it may be concluded that the
petitioner has alleged the circumstances which led him to his suspicion
and surmises in his doubtful mind as to adulterous behaviour of OP but
he has miserabiy failed to prove those circumstances. The inference
drawn by him is not based with any cogent and acceptable evidence.
The charge of adultery should be specific, it should be established in all
probabilities and the evidences required to prove adultery must carry a
high degree of probability.
Having given scrupulous consideration to all the above facts and
findings, this court is led to conclude that plaintiff (Jaykant Jaihind) has
miserable failed to prove the ground of adultery against his wife-the
opposite Party (Jyoti Kumari) under section 13 (1) (i) of Hindu Marriage
Act.
Thus in conclusion, the POINT NO. III is decided in NEGATIVE against
the plaintiff.
44. Now again coming on the issue of cruelty, 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
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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.
45. It is, thus, evident that the Hon'ble Apex Court in the recent
judgment passed in Joydeep Majumdar v. Bharti Jaiswal Majumdar
(supra) has been pleased to lay down 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.
46. 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.
47. 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."
48. 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.
49. 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.
50. The offence of desertion is a course of conduct which exists
independently of its duration, but as a ground for divorce it must exist for
a period of at least two years immediately preceding the presentation of
the petition or, where the offence appears as a cross-charge, of the answer.
Desertion as a ground of divorce differs from the statutory grounds of
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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.
51. 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.
52. 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.
53. 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
that there is a factum of separation and there is an intention on the part of
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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."
54. 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.
55. 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.
56. 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
as discussed hereinabove.
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
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or coercion, then only such type of separation will come under the fold of
desertion. But what we have seen from the evidence of the appellant and
the witnesses adduced on his behalf during the trial that the appellant has
committed cruelty upon the respondent-wife by alleging that she is leading
an adulterous life and she has illicit relationship with Dipak and, as such,
she was forced to leave the house due to mental and physical torture.
58. 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, adultery and desertion has well been
considered by the learned Family Judge.
59. 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, adultery and desertion against the
respondent-wife, rather it is the appellant-husband, who himself has
committed cruelty upon the respondent by accusing her of adultery.
60. The aforesaid reason has led the learned Family Judge to dismiss
the suit.
61. 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 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, both ocular and
documentary, as would be evident from the impugned judgment.
62. This Court, therefore, is of the view that the judgment dated
30.09.2022 and the decree dated 15.10.2022 passed in Original Suit
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No.112 of 2020 by the learned Family Judge need no interference and,
accordingly, the instant appeal stands dismissed.
63. Pending I.As, if any, stands disposed of.
(Sujit Narayan Prasad, J.)
I Agree.
(Rajesh Kumar, J.)
(Rajesh Kumar, J.)
Sudhir
Dated:18/06/2025
Jharkhand High Court, Ranchi
AFR
