Jharkhand High Court
Dhrubendra Pandey Aged About 28 Years ... vs Priya Pandey on 25 November, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 38 of 2025
Dhrubendra Pandey aged about 28 Years S/O Narayan
Pandey, R/O-Vidya Sagar Coloney, P.O. & P.S. -Nirsa,
District-Dhanbad (Jharkhand).
... ... Petitioner/Appellant
Versus
Priya Pandey, aged about 25 Years W/O Dhrubendra
Pandey, R/O Village-Laghla, P.O. & P.S. Chandankayari,
District-Bokaro Steel City (Jharkhand).
... ... Respondent/Defendant
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellant : Mr. Md. Sajid Yunus, Advocate
For the Respondent : Mr. Mukesh Bihari Lal, Advocate
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CAV on 14.11.2025 Pronounced on 25/11/2025
Per Sujit Narayan Prasad, J.
1. The instant appeal under Section 19(1) of the Family Court
Act, 1984 is directed against the order/judgment dated
23.08.2024 and decree signed on 05.09.2024 passed by the
learned Additional Principal Judge, Additional Family Court
No. II, Dhanbad in Original Suit No. 26 of 2019, whereby
and whereunder, the suit filed by the petitioner-appellant
[husband] for dissolution of marriage by decree of divorce
u/s 13(1)(i-a)(i-b) of Hindu Marriage Act, 1955 against
respondent/wife, has been dismissed.
2. The brief facts of the case leading to filing of the divorce
petition by the appellant-petitioner, as taken note in the
impugned order, needs to be referred herein as under:
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3. The marriage between the appellant and respondent was
solemnized on 02-03-2010 according to Hindu Rites and
Customs. After the marriage both the petitioner-appellant
and respondent lived together as husband and wife at Nirsa,
Dhanbad. However, out of the said wedlock the couple was
blessed with no child. It is further stated that after marriage
respondent-wife came to her sasural and stated that she is
not happy with this marriage. It is further stated that this
marriage was solemnized with him forcibly. She also did not
allow him for cohabitation and after seven days of marriage
she went away to her maika. It is further stated that the
behaviour of respondent towards him and his family
members was not good and she used to quarrel and
threatened to implicate them in false case. It is stated that
on various occasions the respondent assaulted her mother-
in-law and always used to humiliate the petitioner-husband
and his family in front of the guest and threatened that if the
petitioner or his family member will compel the respondent
to stay at Nirsa, she will commit suicide. Thereafter the
respondent went away to her maika on the eve of Holi in
year 2016. It is further stated that on 09-05-2016 petitioner
visited to his sasural to bring his wife back but she refused
to come with him.
4. It is further stated that after return from sasural he filed
O.S. Case No-298/16 for Restitution of Conjugal life against
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his wife in which compromise took place and respondent-
wife assured that she will come to her sasural after Bhaiduj
festival but she did not return. It is further stated that he
again visited his Sasural in December, 2017 but she again
refused to join the company of her husband. It is further
stated that on 23-04-2018 respondent along with her
brother and father came to his house and abused him and
also had broken the household articles and thereafter
respondent-wife by taking her all Stridhan went away to her
maika. In this regard he has made complaint at Nirsa police
station but no action was taken. Thereafter the father of the
petitioner filed CP Case No. 1728 of 2018, which is still
pending.
5. In the plaint, it has further been stated that the cause of
action for the petition arose on 09-05-2016 and 23-04-2018
and on various dates when the marriage of the petitioner
with respondent was performed and it also arose on several
occasion when the respondent misbehaved and committed
cruelty to the petitioner.
6. Respondent-wife appeared before the learned Additional
Family Court and contested the suit by filing written
statement and stated that the present suit filed by the
petitioner is not maintainable. It has been contended that
the real fact is that on the pressure of the petitioner and
petitioner's relative respondent's parents had provided dowry
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to the petitioner in cash to the tune of Rs. 2.5 lakh, one
motorcycle, golden ornaments, silver ornaments, etc.
7. It is further stated that the entire allegation made by the
petitioner-husband is totally baseless. It is further stated
that after marriage at the very first night the petitioner after
conjugating with respondent asked that her parents have
not provided the four wheeler car for which they agreed at
the time of marriage. It has further been stated that
somehow the respondent spent her marital life with the
petitioner-husband and have conjugated with each other but
after a week the petitioner started torturing and demanded
four wheeler car. It is further stated that the father of
respondent, brother and other well-wishers came to the
matrimonial house of the respondent and they also tried to
convince the petitioner expressing their inability to provide
four-wheeler. Submission has been made that during the
period 10.03.2010 to 09.05.2016, the respondent was
brought by the father of the respondent to her sasural
[petitioner‟s house] but they refused to keep the respondent
in the matrimonial house. She has further stated that she
does not want to get divorce to the petitioner.
8. On the basis of the pleadings of both the parties, the learned
family court framed the issue as to whether the petitioner,
the appellant herein [husband] is entitled for a decree of
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divorce and accordingly evidence was adduced on behalf of
parties.
9. The learned Principal Judge, family court, after appreciating
the evidence adduced on behalf of parties, came to the
conclusion that the plaintiff-husband, the appellant herein,
could not prove the ingredients of cruelty and desertion
against the respondent-wife, as such it was held that the
petitioner-husband is not entitled to get a decree of divorce,
against which, the instant appeal has been preferred.
Submission of the learned counsel for the appellant:
10. It has been contended on behalf of the appellant that the
factual aspect which was available before the learned family
court supported by the evidences adduced on behalf of the
appellant has not properly been considered and as such, the
judgment impugned is perverse, hence, not sustainable in
the eyes of law.
11. It has been submitted that the issue of cruelty has not been
taken into consideration in the right perspective even though
the fact about living separately has well been established.
12. Learned counsel for the appellant has submitted that the
learned family court did not consider the vital evidence of
the appellant that respondent/wife was indifferent to his
parents and insisted not to have any relation with them and
thereby subjected him to acute mental torture. Further, from
time to time she threatens that she will take her life and
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thereby put them in jail, but these facts have not been
considered by learned family court.
13. Learned counsel for the appellant, based upon the aforesaid
grounds, has submitted that the judgment impugned suffers
from perversity, as such, is not sustainable in the eyes of
law.
Submission of the learned counsel for the respondent:
14. Per contra, learned counsel appearing for the respondent-
wife, while defending the impugned judgment, has submitted
that there is no error in the impugned judgment. The
learned Principal Judge has considered the issue of cruelty
and desertion and having come to the conclusion that no
evidence has been adduced to establish cruelty and
desertion has dismissed the suit.
15. It has been contended that the allegation so far as allegation
of commission of cruelty is considered, the ground has been
raised before the learned Principal Judge that the
respondent-wife is not taking care of the in-laws and
assaulted her mother-in-law, which is totally false and
baseless.
16. Submission has been made that during the period
10.03.2010 to 09.05.2016, the respondent was brought by
the father of the respondent to her sasural [petitioner‟s
house] but they refused to keep the respondent in the
matrimonial house.
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17. It has further been submitted that the respondent is always
ready to live with the appellant. She never subjected the
appellant to mental or physical cruelty rather the appellant
and his family members had been harassing her owing to
the demand of dowry and started ignoring her on instigation
of his family members. Furthermore, the allegation of
intimidation of doing suicide has been denied.
18. Learned counsel, based upon the aforesaid ground, has
submitted that if on that pretext, the factum of cruelty
and/or desertion has not been found to be established,
based upon which the decree of divorce has been refused to
be granted, the impugned judgment cannot be said to suffer
from an error.
Analysis:
19. 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.
20. The admitted fact herein is that the suit for divorce has been
filed on the ground of cruelty and desertion i.e., by filing an
application under Section 13 (1) (i-a) (i-b) of the Hindu
Marriage Act, 1955 and accordingly, issues have been
framed and decided against the petitioner-appellant.
21. The evidence has been led on behalf of both the parties. On
behalf of petitioner-husband, two witnesses have been
examined, namely, Roshan Singh [PW 1] and Dhrubendra
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Pandey [PW 2]. Whereas on behalf of respondent-wife three
witnesses have been examined, namely, Anant Mandal [DW
1]; Anil Kumar Pandey [DW 2] and Priya Pandey [DW 3].
Besides that several documents have been produced by the
parties, which has marked exhibits.
22. P.W. 1-Roshan Singh is an independent witness, who has
supported the evidence of P.W. 2 in examination-in-chief.
23. In cross-examination, he has stated that this case is pending
for Restitution of conjugal life. His house is adjacent to the
house of Dhurb Pandey [appellant]. He cannot say the date
and day when quarrel took place between both parties.
Dhurb Pandey has filed case for restitution of conjugal life in
year 2016. It is not true that in the aforesaid case after
compromise petitioner took his wife and thereafter again
after being beaten he has ousted his wife. He is having
friendly relation with Dhurb Pandey. It is true that at the
time of marriage of Dhurb pandey was minor.
24. P.W. 2- Dhrubendra Pandey, the appellant-husband has
deposed in examination-in-chief that he has filed the divorce
case against his wife Priya Pandey with whom he was
married on 02-03-2010. After marriage, respondent came to
her sasural and stated that she is not happy with this
marriage. She has further stated that this marriage had got
solemnized with him forcibly. She also did not allow him for
cohabitation and after seven days of marriage she went away
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to her maika. He has further deposed that his wife
threatened to implicate him in false case. He has further
stated that on 11-03-2016 she insulted him and humiliated
him before his relatives who have come at the marriage
anniversary of his parents and thereafter on the eve of Holi
she again went away to her maika. On 09-05-2016 petitioner
visited his sasural to bring his wife back but she refused to
return in her sasural and thereafter he has filed Original
Suit No.298/16 for Restitution of Conjugal life against his
wife in which compromise took place and respondent
assured that she will come to her sasural after Bhaiduj
festival but she did not return. He again visited to his
sasural on December, 2017 but she again refused to join the
company of her husband. He has further stated that on 23-
04-2018 respondent along with her brother and father came
to his house and abused to his father and also had broken
the household articles and thereafter respondent by taking
her all Stridhan went away to her maika. In this regard his
father has made complaint in Nirsa Thana but no action was
taken. Thereafter his father has filed CP case no-1728/18
against his wife and other family members which is still
pending.
25. In cross-examination he has stated that due to his non-
appearance in this case the suit stood dismissed and prior to
restoration of this case his wife has filed CP case no-
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2532/18 against him and his family members for demand of
dowry and cruelty. She has filed a maintenance case no-
O.M. - 84/19. It is not true that on the first night of the
marriage he misbehaved his wife after cohabitation because
of non- fulfillment of demand of dowry of four wheeler car. It
is not true that despite suffering torture his wife continued
to lead the marital life with him but his behaviour towards
his wife grew cruel day by day. His wife had gone to maika in
March 2016 and he had gone to take her back on 09-05-
2016 but she did not return to her sasural. He does not
remember that he has given an undertaking at the time of
compromise that he will keep his wife with full dignity and
honour and he will not misbehave with her. It is not true
that after disposal of the case for bedai his wife again started
living in her sasural but he again has demanded dowry and
started torturing with her. It is true that there are several
cases pending between both parties.
26. D.W. 1-Anant Mandal, is an independent witness who has
supported the evidence of DW-3 [respondent-wife].
27. In cross-examination he has stated that he is acquainted
with both the parties and he knows to the family of
respondent since year 1978. He had gone to the house of
petitioner two times. First of all he had gone after nine days
of the marriage and second time he had gone in year 2017
when petitioner took his wife. His house is situated at the
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distance of 12 Km from the house of Bhanu Priya Pandey.
He had gone to the sasural of Bhanu Priya. When quarrel
took place between both parties, the father of respondent
had gone to pacify the matter but all in vain and thereafter
her father took her in his house. It is not true that father of
Bhanu Priya is his good friend and so he has given his
evidence in the favour of respondent.
28. Dw-2-Anil Kumar Pandey, is father of the respondent who
has supported the evidence of DW-3 in examination-in-chief.
In cross-examination he has stated that whatever has been
written in the affidavit was told to him by his daughter. He
had gone to the sasural of his daughter on 09-03-2010. He
had not given any application in Thana. He took his
daughter on 09-03-2010 and since then she is residing with
him. After compromise in the case of bidai his son-in-law
again took his daughter on 10-09-2017. His daughter did
not misbehaved to her mother-in-laws.
29. D.W. 3-Priya Pandey is the respondent-wife herself. She has
deposed in her examination-in-chief that she married with
Dhurbendra Pandey on 02-03-2010. After marriage she
came to her sasural where she was leading conjugal life
happily with her husband. After marriage cohabitation also
took place between both parties but due to non-fulfillment of
demand of four-wheeler as dowry she was misbehaved by
the petitioner. Even after torturing by the petitioner, she was
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residing with her husband to maintain the marital life. But
after one week her husband and family members demanded
again a four wheeler car and started torturing her. Her
family members came to her sasural and they persuaded the
petitioner but he was rigid on his demand and then her
father took her in her maika. She has further stated in her
evidence that only to save his skin her husband has filed a
case no-298/16 u/s 9 of Hindu Marriage Act and after
compromise he again took her on 09-09-2017. But after one
month her husband and in-laws again started torturing her
physically and mentally and on 29-07-2018 she was beaten
mercilessly and by snatching all stridhan she was driven out
from her matrimonial home. She was deserted by her
husband and so now she is residing in her maika. She has
filed complaint case no-2532/18 before Dhanbad Civil Court
for demand of dowry and cruelty against petitioner which is
still pending. She has further stated that in maintenance
case no-84/19 an order was passed by learned Family Court
to pay maintenance Rs. 12000/- per month but in spite of
order of court he is not providing maintenance. She still
wants to lead conjugal life with her husband and she is
interested to reside in her sasural but her husband has filed
false case for decree of divorce against her.
30. In cross-examination, she has stated that regarding
torturing to her she has made complaint in Nirsa Thana but
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no any action was taken by police. She was beaten by the
petitioner but in this regard she cannot file any medical
paper in court. After marriage she resided in her sasural for
only one week. She has filed a case for demand of dowry and
cruelty against her husband and in-laws in year 2018. She
has further stated that it is not true that after marriage she
assaulted her mother-in-law and misbehaved with her father
in law and also tried to commit suicide when she was
restrained from going to her maika at Bokaro. It is not true
that she loved with another person and when she could not
succeeded to perform marriage with him, she has filed the
case for demand of dowry and cruelty u/s 498A IPC against
her husband in year 2018 so that she could reside with her
husband.
31. On the basis of the pleading of the parties the learned
Principal Family Judge had framed issues for proper
determination of the lis, and after due appreciation of the
ocular as well as documentary evidence had negated the
claim of the husband/appellant and observed that the
petitioner/husband has totally failed to prove and establish
the allegation of cruelty and desertion on the part of wife for
dissolution of marriage.
32. Herein, the learned counsel for the appellant has argued
that the evidence of desertion and cruelty has not properly
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been considered and as such, the judgment suffers from
perversity, hence, not sustainable in the eyes of law.
33. While on the other hand, argument has been advanced on
behalf of the respondent that the judgment is well
considered one and the learned family court has rightly
come to the conclusion by denying the decree of suit of
divorce in favour of petitioner-husband accordingly,
dismissed the suit which requires no interference by this
Court.
34. From the pleadings available on record and the arguments
advanced on behalf of parties, the issue which requires
consideration is as to:
"Whether the judgment and decree passed by
the learned family court denying the decree of
divorce on the ground of cruelty under Section
13(1)(ia) of the Hindu Marriage Act and/or on
the ground of desertion under Section 13(1)(ib)
requires interference?"
35. 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.,
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(2009) 10 SCC 206 while elaborately discussing the word
perverse has held that it is, no doubt, true that if a finding of
fact is arrived at by ignoring or excluding relevant material
or by taking into consideration irrelevant material or if the
finding so outrageously defies logic as to suffer from the vice
of irrationality incurring the blame of being perverse, then,
the finding is rendered infirm in law. Relevant paragraphs,
i.e., paras-24, 25, 26 and 27 of the said judgment reads as
under:
"24. The expression "perverse" has been dealt with in a number
of cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501]
this Court observed that the expression "perverse" means that
the findings of the subordinate authority are not supported by
the evidence brought on record or they are against the law or
suffer from the vice of procedural irregularity.
25. In Parry's (Calcutta) Employees' Union v. Parry & Co.
Ltd. [AIR 1966 Cal 31] the Court observed that "perverse
finding" means a finding which is not only against the weight of
evidence but is altogether against the evidence itself. In Triveni
Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994
SC 1341] the Court observed that this is not a case where it can
be said that the findings of the authorities are based on no
evidence or that they are so perverse that no reasonable person
would have arrived at those findings.
26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58]
the Court observed that any order made in conscious violation of
pleading and law is a perverse order.
In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed
that a "perverse verdict" may probably be defined as one that is
not only against the weight of evidence but is altogether against
the evidence. In Godfrey v. Godfrey [106 NW 814] the Court
defined "perverse" as turned the wrong way, not right; distorted
from the right; turned away or deviating from what is right,
proper, correct, etc.
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27. The expression "perverse" has been defined by various
dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English,
6th Edn.
"Perverse.--Showing deliberate determination to behave in a
way that most people think is wrong, unacceptable or
unreasonable."
2. Longman Dictionary of Contemporary English, International
Edn.
Perverse.--Deliberately departing from what is normal and
reasonable.
3. The New Oxford Dictionary of English, 1998 Edn.
Perverse.--Law (of a verdict) against the weight of evidence or
the direction of the judge on a point of law.
4. The New Lexicon Webster's Dictionary of the English
Language (Deluxe 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."
36. Herein, cruelty has been taken by the appellant as the main
ground for dissolution of marriage.
37. So far the allegation of cruelty is concerned, it requires to
refer herein the definition of „cruelty' as has been defined by
Hon‟ble Apex in the judgment rendered in Dr. N.G. 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
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will be harmful or injurious for him to live with the
respondent.
38. 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.
39. 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."
40. The Hon'ble Apex Court has further observed therein that
while dealing with such complaints of cruelty that it is
important for the Court to not search for a standard in life,
since cruelty in one case may not be cruelty in another case.
What must be considered include the kind of life the parties
are used to, "their economic and social conditions", and the
"culture and human values to which they attach
importance."
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41. 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.
42. 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".
43. 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.
44. 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
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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. This Court, based upon the aforesaid discussions on the
issue of cruelty, as per evidence of petitioner it appears that
admittedly petitioner and respondent are legally wedded
husband and wife whose marriage was solemnized on 02-03-
2010. As per evidence of petitioner/husband since the very
first day of the marriage his wife was not interested to lead
conjugal life with him. On the next day of bedia, she has
stated that this marriage was performed against her will.
She also never permitted him to have made physical relation
and lead the conjugal life. She used to quarrel and after
seven days of marriage and she went away to her maika.
46. The averment of petitioner was denied by the respondent
and she stated in her pleadings as well as in her evidence
that after marriage she came to her sasural and she resided
for seven days in her sasural and during aforesaid period
cohabitation took place between husband and wife. But in
sasural she was tortured physically and mentally due to
demand of four-wheeler by the petitioner and his family
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members. His father tried to persuade them but they did not
ready to hear any things and thereafter she called to the
family members of her maika who also tried to persuade her
in-laws but all in vain and seeing no any option her parents
took her to her maika. Thereafter to safe himself with legal
proceedings her husband filed a case no-298/16 u/s 9 of
Hindu Marriage Act. On perusal of evidence of witnesses it
further appears that since the date of marriage and till the
filing of the case respondent-wife several times came to her
maika but as it is stated by the respondent supported with
other witnesses, whenever she came to her maika to lead
conjugal life her husband started torturing her again due to
demand of four wheeler car and they were adamant that
until the demand was fulfilled they will not keep her.
Petitioner has deposed that after filing of the case u/s 9 of
Hindu Marriage Act compromise took place and respondent
assured to return back in her sasural after Bhaiduj but she
did not return and then he had visited to his sasural in the
month of December 2017 to bring her back but she refused
to return in her sasural. But the allegation made by the
petitioner was denied the respondent stating that after
compromise she had come to her sasural but in sasural she
was again tortured and she was again driven out from her
matrimonial home. But the petitioner has not mentioned
specific date as to when he had gone to bring her wife back.
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47. Appellant-husband has further deposed that on 23-04-2018
the respondent along with her family members came to his
house and they abused his father and took all Stridhan and
fled away. In this regard his father has filed CP case no.-
1728 of 2018. One complaint case being C.P. No. 2532 of
2018 has been filed by respondent-wife.
48. Respondent has deposed that in sasural she was tortured
physically and mentally since the date of marriage. She tried
to persuade her in laws but she did not file the suit for
demand of dowry and cruelty as because she wants to lead
conjugal life with her husband but when the behaviour and
the conduct of the husband towards her did not change, she
left no any option but to reside in her maika and thereafter
she has filed a maintenance case as well as criminal case for
demand of dowry and cruelty against her in-laws. In
maintenance case being O.M. Case No. 84 of 2019, an order
was passed directing the petitioner to provide Rs. 12,000/-
per month as maintenance to respondent but in spite of
order of court he did not provide maintenance to respondent
and she was being fully neglected by her husband which
prove the fact that petitioner has no any interest to keep his
wife with full dignity and honour and due to cruel behavour
of petitioner, his wife is now residing in her maika.
49. Though respondent has filed criminal case for demand of
dowry and cruelty at belated stage in year 2018 whereas she
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has stated that she was tortured since the time of marriage
in year 2010, but as it transpires from the evidence of
respondent supported with other witnesses that in the
instant case several time compromise took place between
both parties and whenever she came to her sasural she was
again and again tortured by her husband and in-laws and
with hope that everything will be good over the passage of
time, she did not file the case for demand of dowry and
cruelty so it transpires that only to save her marital life, she
did not file case under section 498 A IPC against her
husband at an earlier stage. So it appears to be genuine
ground for respondent to institute the case under section
498A IPC against her husband at some belated stage.
50. From the discussions made hereinabove, it is evident that no
cruelty has been meted out to the appellant-husband by the
respondent-wife rather it is the appellant-husband who
tortured the respondent-wife for non-fulfilment of dowry and
not accepting her to live in her matrimonial house.
51. On the basis of the discussion made hereinabove, this Court
is of the considered view that the appellant/husband has
failed to brought any cogent evidence on record in order to
establish the alleged cruelty by the respondent/wife as such
the behaviour of the respondent wife as alleged, does not
amount to cruelty justifying dissolution of the marriage.
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52. Now coming to the issue of desertion, which is also taken as
a ground for decree of divorce.
53. The word „desertion' has been given in Explanation to
Section 13 (1) wherein it has been stated that "the
expression desertion means the desertion of the petitioner by
the other party to the marriage without reasonable cause
and without the consent or against the wish of such party,
and includes the wilful neglect of the petitioner by the other
party to the marriage, and its grammatical variations and
cognate expressions shall be construed accordingly.
54. It is pertinent to note that the word „desertion‟, as has been
defined in Explanation part of Section 13 of the Act, 1955,
means the desertion of the petitioner by the other party to
the marriage without reasonable cause and without the
consent or against the wish of such party, and includes the
wilful neglect of the petitioner by the other party to the
marriage, and its grammatical variations and cognate
expressions shall be construed accordingly.
55. 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
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not necessarily make that spouse the deserting
party."
56. 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.
57. 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.
58. 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.
59. 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
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inchoate, until the suit is constituted, desertion is a
continuing offence.
60. It is, thus, evident from the aforesaid reference of meaning of
desertion that the quality of permanence is one of the
essential elements which differentiate desertion from wilful
separation. If a spouse abandons the other spouse in a state
of temporary passion, for example, anger or disgust, without
intending permanently to cease cohabitation, it will not
amount to desertion. For the offence of desertion, so far as
the deserting spouse is concerned, two essential conditions
must be there, namely, (1) the factum of separation, and (2)
the intention to bring cohabitation permanently to an end.
61. Similarly two elements are essential so far as the deserted
spouse is concerned: (1) the absence of consent, and (2)
absence of conduct giving reasonable cause to the spouse
leaving the matrimonial home to from the necessary
intention aforesaid.
62. The Hon'ble Apex Court in Debananda Tamuli vs.
Kakumoni Kataky, (2022) 5 SCC 459 has considered the
definition of „desertion‟ on the basis of the judgment
rendered by the Hon'ble Apex Court in Lachman
Utamchand Kirpalani v. Meena, AIR 1964 SC 40 which
has been consistently followed in several decisions of this
Court.
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63. The law consistently has been laid down by this Court 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.
64. This Court, has again delved into the testimony of witnesses
and found that the appellant-husband could not prove that
it is the respondent-wife, who deserted her husband rather
the testimony of the parties and materials available on
record shows that the due to cruelty meted out by the
husband, the respondent-wife is forced to live in her maika.
65. Accordingly, issue as framed by this Court is decided against
the appellant-husband and it is held that the judgment and
decree passed by the learned family court, denying the
decree of divorce passed to the appellant-husband on the
ground of cruelty under Section 13(1)(ia) of the Hindu
Marriage Act and on the ground of desertion under Section
13(1)(ib), requires no interference by this Court.
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66. This Court, based upon the aforesaid discussion, is of the
view that the appellant/petitioner has also failed to establish
the element of perversity in the impugned judgment as per
the discussion made hereinabove, as such, this Court do not
find any merit in the appeal.
67. Accordingly, the instant appeal fails and is dismissed.
68. Pending interlocutory application(s), if any, also stands
disposed of.
I Agree (Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
25th November, 2025
A.F.R.
Alankar/
Uploaded on 25.11.2025
