Jharkhand High Court
Vinay Kumar Verma vs Kiran Devi on 8 May, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 125 of 2022
1. Vinay Kumar Verma, aged about 43 years, Son of Basant Mahto,
Resident of Village-Nunwatta, P.O.-Nunwatta, P.S.-Godda (M), Dist.-
Godda.
... ... Plaintiff/Appellant
Versus
Kiran Devi, Wife of Vinay Kumar Verma, Daughter of Anirudh Mal,
Resident of Village-Kanwara, P.O.-Kanwara, P.S.-Godda(M), Dist.-
Godda
... ... Defendant/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. Niraj Kishore, Advocate
For the Respondent : Mr. Pankaj Kr. Choudhary, Advocate
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CAV on 05/05/2025 Pronounced on 08/05/2025
1. The instant appeal under Section 19(i) of the Family Court Act, 1984 is
directed against the order/judgment dated 30.04.2022 passed by the
learned Principal Judge, Family Court, Godda in Original Suit No. 66 of
2017, whereby and whereunder, the petition filed under Section 13(1)-(i),
(i-a) & (i-b) of the Hindu Marriage Act, 1955 for dissolution of marriage
by a Decree of Divorce, has been dismissed.
2. The brief facts of the case, which required to be enumerated, needs to be
referred as under:
It is the case of the appellant/petitioner that the plaintiff/petitioner and
defendant-respondent are Hindus and are governed by the Mitakshara
school of Hindu Law. The petition for the dissolution of marriage has
been filed on behalf of the petitioner/plaintiff (Husband) against his wife
(defendant) on the grounds of adultery, cruelty and desertion. The
marriage between the petitioner/plaintiff and the respondent/defendant
took place according to Hindu customary rites and ceremonies on
12.12.2009 at village Kanhwara within Godda (M) P.S. After marriage the
Plaintiff/petitioner and Defendant/ respondent lived together at the village
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Nonvatta within Godda district for about 15 days and then defendant
(wife) returned to her parent's house.
In February 2010, when the petitioner/plaintiff was in Dumka, he saw
the defendant/respondent in Hijla Mela with a stranger and when the
petitioner raised this issue before the father of the respondent, the father
behaved very rudely.
It is further alleged that the respondent/defendant (wife) used to come
to her (sasural) in-law's house according to her will and used to leave
sasural without his consent with some unwarranted person. The parents of
the Defendant/ respondent have concealed the material facts regarding the
respondent's nature and behaviour. The respondent not only used to abuse
her husband but also she used to hurl abuses on her old father-in-law and
mother-in-law. She hurt her husband with a heavy metal object, resulting
into serious and grievous injury to him for which the petitioner remained
under one month of treatment. On two occasions, she struck her mother-
in-law with a burning piece of wood and threw hot boiled water on her
father-in-law. Apart from this on 31.12.2011 she pulled her mother-in-
law's hair so badly.
The above matter was reported to her father, who arrived with one
person but instead of resolving the matter, he ended up filing a criminal
case against the entire family of plaintiff vide Godda (M) P.S. Case No.
05/2012, G.R. Case No. 14/12 u/s- 498A IPC. Apart from this, a petition
for maintenance under section 125 Cr. P.C. was also filed by this
Defendant respondent. Since 01.01.2012, the respondent is living
separately at her parents' house. Hence, both have been living separately
for more than five years. The respondent is older than the petitioner and
this is fact had also been concealed by the parents of the respondent.
The marriage took place within Godda district and they are residing
within Godda district. On 26.06.2017 at 10.00 A.M., the respondent and
his father met the petitioner/plaintiff and threatened him to bring him on
the footpath, they claimed that they will take money and also harass him
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by filing cases. Hence, the petitioner/plaintiff had no option but to file this
divorce case for the dissolution of marriage.
It is evident from the factual aspect that the appellant/petitioner had a
motion by filing a petition under Section 13(1)-(i), (i-a) & (i-b) of the
Hindu Marriage Act, 1955 for decree of divorce on the ground of adultery,
cruelty and desertion.
3. The learned Family Judge has called upon the respondent-wife. The wife
has filed written statement and altogether six issues have been framed
which are as follows:
(i) Whether the suit as framed is maintainable?
(ii) Whether the plaintiff has valid cause of action for the suit?
(iii) Whether the defendant/respondent-wife, after her solemnization of
marriage with plaintiff/petitioner-husband, had sexual intercourse
with any person other than plaintiff, and thus guilt of extra-martial
intercourse or adulterous act and whether the suit of plaintiff-
husband is fit to be decreed for dissolution of marriage on this
ground?
(iv) Whether the defendant/respondent-wife, after her solemnization of
marriage with plaintiff/petitioner, treated the plaintiff-husband with
cruelty and whether the suit of plaintiff/petitioner-husband is fit to
be decreed for dissolution of marriage on this ground of cruelty?
(v) Whether the defendant/respondent-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
and whether the suit of plaintiff/petitioner-husband is fit to be
decreed for dissolution of marriage on this ground of Desertion?
(vi) Whether the plaintiff/petitioner-Husband is entitled for relief of
"Dissolution of his Marriage with defendant/respondent-wife Kiran
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Devi" by passing the Decree of Divorce under section 13(1)(i)(i-
a)(i-b) of Hindu Marriage Act, 1955.
4. The evidences have been made on behalf of both the parties. Thereafter,
the judgment has been passed dismissing the suit by holding that none of
the grounds either of adultery, cruelty or desertion has been established by
the appellant/petitioner, which is the subject matter of the present appeal.
Submission of the learned counsel for the appellant/petitioner:
5. It has been contended on behalf of the appellant/petitioner that the factual
aspect which was available before the learned Family Judge supported by
the evidences adduced on behalf of the appellant/petitioner has not
properly been considered and as such, the judgment impugned is perverse,
hence, not sustainable in the eyes of law.
6. It has been submitted that the appellant-husband saw the defendant-wife
in Hijla Mela with a stranger when the petitioner/plaintiff was in Dumka
and when the petitioner raised this issued before the father of the
respondent-wife, the father behaved very rudely. The respondent-wife
used to come to her in-law's house according to her will and used to leave
sasural without his consent.
7. It has further been submitted that the issue of adultery, cruelty and
desertion has not been taken into consideration in right perspective.
8. Learned counsel for the appellant/petitioner, based upon the aforesaid
grounds, has submitted that the judgment impugned suffers from
perversity, as such, not sustainable in the eyes of law.
Submission of the learned counsel for the respondent:
9. Per contra, Mr. Pankaj Kr. Choudhary, learned counsel for the
respondent-wife, while defending the impugned judgment, has submitted
that there is no error in the impugned judgement. The learned Family
Judge has considered the issue of adultery, cruelty and desertion and
having come to the conclusion that no evidence has been adduced to
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establish the issue either of adultery, cruelty or desertion, has dismissed
the petition.
10. It has been contended that the allegation so far as alleged commission of
cruelty is considered, the ground has been raised in the written statement
before the learned Family Judge that the petitioner and his relatives
brutally assaulted the defendant-wife inflicting injuries upon her in order
to coerce her to get their demand of dowry fulfilled from the parents of
defendant, as such, the ground of cruelty as has been raised, is absolutely
correct.
11. It has also been submitted that the petitioner and his parents subjected to
torture to defendant-wife and deserted her to live destitute life in order to
make pressure for fulfilling their unlawful demand.
12. It has been submitted that the defendant, wife has no personal income for
her maintenance and she has been ready to live with the petitioner-
husband but the petitioner denied to keep the defendant-wife with full
respect and dignity and thereafter, filed a case for maintenance which has
already been decided by the Court in favour of defendant-wife. The
petitioner is not obeying the order of maintenance case.
13. Learned counsel, based upon the aforesaid grounds, has submitted that if
on that pretext, the factum of adultery, cruelty and desertion has not been
found to be established, hence, the impugned judgment cannot be said to
suffer from error.
Analysis:
14. 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.
15. The case has been heard at length. The admitted fact herein is that the suit
for divorce has been filed on the ground of adultery, cruelty and desertion,
i.e., by filing an application under Section 13(1)-(i)(i-a)(i-b) of the Hindu
Marriage Act, 1955 and accordingly, issues have been framed wherein
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primarily issue nos.III, IV and V pertains to adultery, cruelty and
desertion.
16. The evidence has been led on behalf of both the parties. For ready
reference, the evidences led on behalf of the parties are being referred as
under:
(i) PW-1 Nand Kishore Mahto has stated in his examination-in-chief
that he know both the parties and their marriage was solemnized on
12.12.2009 as per Hindu customary rites and ceremonies. He has
stated that Binay Kumar Verma (plaintiff/appellant) told this
witness that he had seen the opposite party at Dumka Hijla fair with
another man and when Binay Kumar Verma complained this to her
father, her father misbehaved with him. Kiran
Devi(defendant/respondent) always used to misbehave with her
husband and in-laws and also used to assault and abuses them. One
day she has assaulted her mother-in-law. He has further stated that
opposite party has lodged a false case of torture and dowry demand
against them.
In his cross-examination, he has stated that he has not seen
Hizla Fair himself. He has not seen any person/stranger
accompanying opposite party while she used to go to her maike
from Sasural. At para-27, he has deposed that he has not heard that
opposite party had abused the petitioner or his parents. At para-29,
he has stated that he has not seen opposite party ever pulled out or
extracted hair of her mother-in-law. At para-34, he has stated that
he does not have any complaints against opposite party. At para-36,
he has stated that the petitioner has brought him to Court by his
motorcycle to depose in this case.
(ii) PW-2 Ghanshayam Sah has deposed in his examination-in-chief
that after marriage petitioner's wife lived at her sasural but she used
to not taking any care of her in-laws. She had thrown hot water and
hot "maad" (starch) upon her mother-in-law and opposite party
used to assault them. Kiran Devi assaulted her husband so badly
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and her husband remained injured for six months. He has also stated
that since January, 2012, the opposite party-wife does not live with
her husband and she has lodged false case too wherein the
petitioner has been sent to jail too.
In his cross-examination, at para-26, he had deposed that he
used to suggest and advise the petitioner to keep his wife properly.
At para-27, he has stated that he does not remember the day when
the opposite party allegedly poured hot water upon her mother-in-
law. At para-28, he has deposed that he could not tell the date when
the opposite party allegedly beaten up the petitioner.
(iii) PW-3 Bhagirath Sah in his examination-in-chief has deposed that
she used to not taking any care of her mother-in-law. She had
thrown hot water and hot "maad" (starch) upon her mother-in-law
and opposite party used to assault them.
In his cross-examination, he has deposed that he had seen the
scuffle between the petitioner and his wife but he could not tell the
date/day. At para-20, he has deposed that when the petitioner did
not keep and maintain her then she approached the court by filing a
case in the court of CJM.
(iv) PW-4 Vinay Kumar Verma (Petitioner) has stated in his
examination-in-chief that after 15 days of marriage, opposite
party/wife went back to her parents home and thereafter, in
February, 2010, he saw her at Dumka Hijla Fair with some stranger.
When this matter was complained to her father, he misbehaved.
Opposite party used to misbehave with him and does not give
respect to him and she also used to misbehave with her in-laws. He
has further deposed that opposite party/wife beaten him up very
badly with burning wood-log and rod causing injury to him due to
which he remained hospitalized for treatment in Hospital. She used
to torture her mother-in-law and beaten her with burning woods and
thrown hot "maad" upon her.
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In his cross-examination, he has deposed that his wife has been
living at her maike since 1st January, 2012. She has lodged a case
under Section 498-A against him. He claimed that presently he is
giving maintenance to his wife @ Rs.4,000/- per month and he
claimed that he can say it on affidavit. He earnsRs.10,000/- per
month.
He has further deposed that he could not catch that person at
Hijla Fair as he escaped. She used to come and go there with
stranger boys. The boy used to flee after dropping his wife at his
house.
17. The respondent-wife has also been examined as D.W.-6. For ready
reference, her evidence is being referred as under:
(i) DW-6-Kiran Devi (wife) has stated in her examination-in-chief on
affidavit that after marriage, she went to her sasural at Nunvatta soon
after coming there, petitioner and his family members started
assaulting and abusing her and they used to torture her physically and
mentally. Her father-in-law, Basant Mahto started putting pressure
upon her to aske her father to give his three katha land of Godda (T)
area and even her husband supported his father in his demand. On
01.01.2012, they all assaulted and badly injured her, on getting
information her father and other family members came and took her
go Godda Hospital for treatment, thereafter, she lodged a case of
torture-cruelty and dowry demand against her husband and his family
members. She has brought a case of maintenance in the court, then her
husband on instigation of his father brought this false case for divorce.
She has further deposed that she has never assaulted her husband or
abused her in-laws.
In her cross-examination, she has deposed that her marriage with
Vinay Kumar Verma solemnized on 12.12.2009 and for the first time,
she live at her sasural for one month then she came back her parental
home and again after 10 days she went to her sasural. Lilawati Devi-
mother-in-law has lodged a case of assault and theft against her.
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She has denied that in February 2010 she was with some stranger man
with whom she has illicit relation. She has also denied that she ever
assaulted her husband. She wants to live with her husband. She has
denied that she has deserted her husband rather her husband has
deserted her. She has also denied that she has ever misbehaved with
her in-laws. She has denied that she has got second marriage.
18. The learned Family Judge has gone into the interpretation of the word
"cruelty" and "desertion" and assessing the same from the evidences led
on behalf of the parties as also the submission made in the pleadings, i.e.,
plaint and written statement, has found that the element of cruelty and
desertion could not have been established.
19. The learned counsel for the appellant/petitioner has argued that the
evidence of cruelty and desertion has not properly been considered and as
such, the judgment suffers from perversity, hence, not sustainable in the
eyes of law.
20. While on the other hand, argument has been advanced on behalf of the
respondent has submitted that the judgment has well been considered and
merely by committing fraud, the suit for divorce has been filed.
21. This Court, while appreciating the argument advanced on behalf of the
parties on the issue of perversity, needs to refer herein the interpretation of
the word "perverse" as has been interpreted by the Hon'ble Apex Court
which means that there is no evidence or erroneous consideration of the
evidence. The Hon'ble Apex Court in Arulvelu and Anr. vs. State
[Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206
while elaborately discussing the word perverse has held that it is, no
doubt, true that if a finding of fact is arrived at by ignoring or excluding
relevant material or by taking into 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.
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.""
22. The ground for divorce has been taken of cruelty and desertion. 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
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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.
23. This Court, deems it fit and proper to take into consideration the meaning
of 'cruelty' as has been held by the Hon'ble Apex Court in Shobha Rani
v. Madhukar Reddi, (1988)1 SCC 105 wherein the wife alleged that the
husband and his parents demanded dowry. The Hon'ble Apex Court
emphasized that "cruelty" can have no fixed definition.
24. According to the Hon‟ble Apex Court, "cruelty" is the "conduct in
relation to or in respect of matrimonial conduct in respect of matrimonial
obligations". It is the conduct which adversely affects the spouse. Such
cruelty can be either "mental" or "physical", intentional or unintentional.
For example, unintentionally waking your spouse up in the middle of the
night may be mental cruelty; intention is not an essential element of
cruelty but it may be present. Physical cruelty is less ambiguous and more
"a question of fact and degree."
25. 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."
26. 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.
27. 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".
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28. In Vijaykumar Ramchandra Bhate v. Neela Vijay Kumar Bhate, (2003)6
SCC 334 the Hon‟ble Apex Court has observed by taking into
consideration the allegations levelled by the husband in his written
statement that his wife was "unchaste" and had indecent familiarity with a
person outside wedlock and that his wife was having an extramarital
affair. These allegations, given the context of an educated Indian woman,
were held to constitute "cruelty" itself.
29. The Hon‟ble Apex Court in Joydeep Majumdar v. Bharti Jaiswal
Majumdar, (2021) 3 SCC 742, has been pleased to observe that while
judging whether the conduct is cruel or not, what has to be seen is whether
that conduct, which is sustained over a period of time, renders the life of
the spouse so miserable as to make it unreasonable to make one live with
the other. The conduct may take the form of abusive or humiliating
treatment, causing mental pain and anguish, torturing the spouse, etc. The
conduct complained of must be "grave" and "weighty" and trivial
irritations and normal wear and tear of marriage would not constitute
mental cruelty as a ground for divorce.
30. 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.
31. The definition of "desertion" is required to be referred herein 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.
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32. Rayden on Divorce which is a standard work on the subject at p. 128 (6th
Edn.) has summarised the case-law on the subject in these terms:
"Desertion is the separation of one spouse from the other, with an
intention on the part of the deserting spouse of bringing cohabitation
permanently to an end without reasonable cause and without the consent
of the other spouse; but the physical act of departure by one spouse does
not necessarily make that spouse the deserting party."
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.
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.
33. The offence of desertion is a course of conduct which exists independently
of its duration, but as a ground for divorce it must exist for a period of at
least two years immediately preceding the presentation of the petition or,
where the offence appears as a cross-charge, of the answer. Desertion as a
ground of divorce differs from the statutory grounds of adultery and
cruelty in that the offence founding the cause of action of desertion is not
complete, but is inchoate, until the suit is constituted. Desertion is a
continuing offence.
34. 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
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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.
35. 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.
36. 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
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."
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37. 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.
38. Herein, the main ground of cruelty has been taken by the
appellant/plaintiff that on several times, the respondent-wife assaulted the
petitioner/plaintiff as also his old parents with burning woods, rods,
hurting them by pouring hot maad (starch) upon them and on one occasion
she even pulled out and extracted a lock of hairs from the scalp of her
mother-in-law.
39. The said ground, therefore, cannot be said to be sufficient to prove the
ground of cruelty, as such, the said ground has been disbelieved by the
learned Family Judge.
40. The desertion has also been taken as a ground but the desertion has been
defined and interpreted by the Hon'ble Apex Court that the desertion will
be said to be desertion if either of the party, on his/her own wish, has left
the matrimonial house. But, no such evidence has been produced by the
appellant/petitioner to prove the element of desertion showing that the
respondent-wife has left her matrimonial house.
41. Reference of Section 23(1)(a) of the Hindu Marriage Act needs to be
referred herein wherein it has been provided that one cannot be allowed to
take advantage of its own wrong. For ready reference, Section 23(1) reads
as under:
"23. Decree in proceedings.--(1) In any proceeding under this Act,
whether defended or not, if the court is satisfied that
(a) any of the grounds for granting relief exists and the petitioner 2
[except in cases where the relief is sought by him on the ground specified
in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section
5] is not in any way taking advantage of his or her own wrong or disability
for the purpose of such relief, and
(b) where the ground of the petition is the ground specified in clause (i) of
sub-section (1) of section 13, the petitioner has not in any manner been
accessory to or connived at or condoned the act or acts complained of, or
where the ground of the petition is cruelty the petitioner has not in any
manner condoned the cruelty, and
[(bb) when a divorce is sought on the ground of mutual consent, such
consent has not been obtained by force, fraud or undue influence, and]
2025:JHHC:13895-DB
(c) 4 [the petition (not being a petition presented under section 11)] is not
presented or prosecuted in collusion with the respondent, and
(d) there has not been any unnecessary or improper delay in instituting the
proceeding, and
(e) there is no other legal ground why relief should not be granted, then,
and in such a case, but not otherwise, the court shall decree such relief
accordingly.
(2) Before proceeding to grant any relief under this Act, it shall be the duty
of the court in the first instance, in every case where it is possible so to do
consistently with the nature and circumstances of the case, to make every
endeavour to bring about reconciliation between the parties: 5
[Provided that nothing contained in this sub-section shall apply to any
proceeding wherein relief is sought on any of the grounds specified in
clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of
sub-section (1) of section 13.]
[(3) For the purpose of aiding the court in bringing about such
reconciliation, the court may, if the parties so desire or if the court thinks
it just and proper so to do, adjourn the proceedings for a reasonable
period not exceeding fifteen days and refer the matter to any person named
by the parties in this behalf or to any person nominated by the court if the
parties fail to name any person, with directions to report to the court as to
whether reconciliation can be and has been, effected and the court shall in
disposing of the proceeding have due regard to the report.
(4) In every case where a marriage is dissolved by a decree of divorce, the
court passing the decree shall give a copy thereof free of cost to each of
the parties.]"
42. The applicability of the said provision is very much available herein since
one of the grounds of divorce is desertion and for proving desertion, it is
onus upon the party who is taking the ground for seeking dissolution of
marriage is to substantiate that the party has left the house on her own.
Contrary to that, if the party has been compelled to leave the house on the
basis of cruelty which has been meted out to her then the same will not
come under the fold of desertion and in that view of the matter, Section
23(1)(a) of Hindu Marriage Act is to be made applicable that if the
husband is at wrong, he cannot be allowed to take advantage of its own
wrong.
43. So far as the ground of adultery is concerned, the argument has been
advanced that the appellant-husband saw the defendant-wife in Hijla Mela
with a stranger when the petitioner/plaintiff was in Dumka. The defendant
wife used to come to her sasuaral according to her will and used to leave
sasural without his consent with some unwarranted person.
2025:JHHC:13895-DB
44. As per the statutory provision as provided under Section 13(1)(i) of the
Hindu Marriage Act where the ground for adultery has also been provided
to be taken as a ground for dissolution of marriage but it is incumbent
upon the party to take the ground of adultery for dissolution of marriage to
substantiate the same on the basis of cogent evidence. It is not available
for a party concerned that by merely making submission of adultery, the
adultery will be said to be proved, rather, the issue of adultery since
belongs to the character assassination of a party, is to substantiate with the
cogent and valid evidence.
45. This Court, on consideration of the impugned judgment as also the
material available on record, has found that no such cogent evidence has
been produced by the husband to prove the ground of adultery.
46. The learned Family Judge has taken into consideration the aforesaid
aspects of the matter, as such, the said ground has been held to be not
applicable as a ground for divorce.
47. The learned Family Judge, on consideration of the issues, has not found
the ground for dissolution of marriage and therefore, dismissed the suit.
48. This Court, based upon the aforesaid discussion, is of the view that the
appellant/petitioner has failed to establish the element of perversity in the
impugned judgment as per the discussion made hereinabove, as such, the
instant appeal deserves to be dismissed.
49. Accordingly, the instant appeal fails and is, dismissed.
50. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
I Agree
(Rajesh Kumar, J.)
(Rajesh Kumar, J.)
Rohit /A.F.R.
