Jharkhand High Court
Amit Kumar Singh @ Sawan Singh vs Ahuti Priya on 16 September, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 329 of 2023
Amit Kumar Singh @ Sawan Singh, aged about 40 years,
son of Randhir Kumar Singh, Resident of Village Pirpaiti
Road, P.O. Godda, P.S. Godda (T), District - Godda.
...Appellant/Respondent/Opp. Party
Versus
Ahuti Priya, Aged about 38 years, daughter of Salendra
Kumar Singh, W/O Amit Kumar Singh @ Sawan Singh,
Resident of Lohiyanagar, P.O. Godda, P.S. Godda (T),
District-Godda.
...Respondent/Petitioner/Plaintiff
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CORAM: HON'BLEMR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For theAppellant : Mr. Rajendra Krishna, Advocate
Mr. Pratyush Shourikya, Advocate
Mr. Jay Shankar Tiwari, Advocate
For the Respondent : Mr. Alok Anand, Advcoate
Mr. Shivam Pratap Singh, Advocate
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CAV/Reserved on 01.09.2025 Pronounced on 16 09/2025
Per Sujit Narayan Prasad, J.
Prayer:
1. The instant appeal under Section 19(1) of the Family Court
Act, 1984 is directed against order/judgment dated
28.08.2023 and decree dated 16.09.2023 passed by the
learned Principal Judge, Family Court, Godda in Original
Suit No. 137 of 2021, whereby and whereunder the learned
court has allowed the suit and the marriage between the
parties has been dissolved and further the appellant-
husband has been directed to pay a consolidated amount of
Rs. 25,00,000/- [twenty five lakh] to the respondent-wife as
permanent alimony and also directed to return all the
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„stridhan‟ and belongings, gifts of the respondent-wife to her
and both the parties were directed to return all the
respective gifts to each other. It has further been directed
that if the amount of permanent alimony is not paid within
the stipulated period, the appellant-husband was directed to
pay simple interest @ 9% per annum on the unpaid amount
till its realization.
Brief facts of the case:
2. The brief facts of the case, as per the pleading made in the
original suit, needs to be referred herein, which reads as
under:
3. The marriage between the parties was solemnized on
24.06.2012 as per Hindu customary rites and ceremonies.
4. It is the case of the respondent-wife that her father gave Rs
12 lakhs and 10 bhars of Gold ornaments in the marriage.
After marriage the respondent-wife went to her sasural and
started living there consummating the matrimonial life. After
sometime, the respondent-wife came to her parents‟ house
[maika] and then on 'Durgaman' [bedia], she again went to
her sasural, where it is alleged that the husband and his
other relatives started making demand of Rs. 5 lacs as dowry
and they put it as condition precedent for her stay at sasural
otherwise she was said to be ousted from the house. Upon
much pressure, the father of the respondent-wife somehow
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managed an amount of Rs. 3 lacs and paid to the husband
and his parents for safe future of the petitioner, the
respondent herein.
5. It is further case of the respondent-wife before the family
court that in spite of several other demands as well as
continued torture inflicted upon her, she remained in her
sasural with a hope that after a child is born out of the
wedlock, the things will be normal but during stay at
matrimonial house she came to know that her husband, the
appellant herein, has illicit relation with another lady of the
same locality, which she objected but the in-laws of the
respondent-wife assaulted her and ousted her from the
house.
6. In such circumstances, the respondent-wife lodged a case
being Godda (T) Police Station vide Godda (T) P.S. Case no.
218/2016 for offences u/s- 498A, 494, 323, 506 of IPC and
3/4 of the D.P. Act against the appellant-husband and other
matrimonial inmates.
7. It is the case of the respondent, as made out in the plaint
which has been taken note in the impugned order, that
during her stay at her matrimonial house, the appellant-
husband flatly refused to have sex with her saying that there
was another option available for him which gave brutal
mental anxiety and cruelty to her, which continued for four
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years. Because of that even after a long period of married
life, she was not blessed with any child.
8. Further case has been made out that the respondent-wife
was finally ousted from the house and beaten mercilessly
when she questioned about the drunk nature and illicit
relation of the appellant-husband with another lady. It has
been submitted that for the future of the respondent-wife the
entire family members of the respondent-wife tried their best
to convince the appellant-husband so that a healthy
conjugal life may be restored but the appellant-husband
never thought it better to make any solution of dispute
rather became more aggressive and finally ousted the
respondent-wife from her matrimonial house since then she
is living a deserted life for the last three years since filing of
the matrimonial suit.
9. It has been submitted that in spite of several attempts being
made by the respondent-wife, when the appellant-husband
refused to accept the respondent as wife, she left with no
alternative on 03.03.2021 the appellant-husband finally
refused to accept the respondent as wife and when it became
evident that marital ties has irrevertably broken, the
respondent-wife filed the suit being Original Suit No. 137 of
2021 praying therein for a Decree of Divorce.
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10. After filing of suit by the respondent-wife, on being noticed,
the appellant-husband appeared through his counsel and
filed vakalatnama.
11. The parties were sent for mediation but the parties could not
arrive at any mutually agreeable settlement and the case
proceeded.
12. It is evident that in spite of sufficient opportunity granted to
the appellant-husband, the Opp. Party in the suit, the
appellant-husband did not file 'Written Statement'. Finally,
vide order dated 02.07.2022 the Court debarred him from
filing 'Written Statement' and the case proceeded with
petitioner's [respondent herein] evidence. It further appears
that the appellant-husband, never had made any effort to
file Written Statement by filing any application.
13. Thereafter, the respondent-wife produced witnesses,
who were examined and cross-examined but the appellant-
husband did not adduce any evidence.
14. The learned family court, taking into consideration
the submissions advanced by the parties, decreed the suit in
favour of respondent-wife and the marriage between the
parties has been dissolved and further the appellant-
husband has been directed to pay a consolidated amount of
Rs. 25,00,000/- [twenty five lakh] to the respondent-wife as
permanent alimony as also directed to return all the
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„stridhan and belongings, gifts of the respondent-wife to her
and both the parties were further directed to return all the
respective gifts to each other. It has further been directed
that if the amount of permanent alimony is not paid within
the stipulated period, the appellant-husband was directed to
pay simple interest @ 9% per annum on the unpaid amount
till its realization.
15. Against the order/judgment dated 28.08.2023 and
decree dated 16.09.2023 passed in Original Suit No. 137 of
2021 the appellant-husband has filed the present suit.
Submission on behalf of appellant-husband:
16. Learned counsel for the appellant-husband has
submitted that the learned family court did not consider the
fact that the permanent alimony granted in favour of wife is
disproportionate to the income and liability of the appellant-
husband.
17. Further, the learned family court failed to take into
consideration the fact that the respondent-wife is an earning
lady and has been teaching in school since 2013 and has
good source of income.
18. Further submission has been made that it is the
appellant-husband who actually promoted her wife to
complete her studies and to join as a teacher but this aspect
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of the matter has also not been appreciated by the learned
family court.
19. It has been submitted that it is the respondent-wife
who wanted to leave her husband but the wife always finds
reason to fight with the appellant-husband and leave him.
20. Further submission has been made that the ground
of extra-marital relation has been taken against the
appellant-husband for which even a criminal case was filed
but in the said criminal case, the appellant-husband was
acquitted and thereby it is proved that the appellant-
husband had no extra-marital relation but due to the wrong
allegation leveled by the respondent-wife, the appellant-
husband has got mental agony but this fact has not been
taken into consideration by learned family court.
21. Further submission has been made that the
appellant-husband has tried his best to convince his wife for
treatment of her infertility but she was adamant not to live
with him and his family members and get rid of him.
22. Further submission has been made that in the
marriage money has been spent by both the families and
during cross-examination the witnesses examined on behalf
of respondent-wife i.e., the wife [P.W. 1], her father [PW 2]
and mother [PW 3] failed to say that how the money of
dowry, as alleged has been received by them. But the
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learned family court without taking into consideration these
facts and the law laid down in the case of Rajnesh Vs. Neha
[(2021) 2 SCC 324] wherein it has been laid down that while
deciding the quantum of permanent alimony the income of
the wife as also husband is to be considered, has passed the
impugned order awarding the permanent alimony, which
requires interference.
23. Further submission has been made that the learned
family court has erred in finding that appellant is having
monthly income of Rs. 5 lacs based on the oral testimony of
P.W.1, P.W. 2 and P.W. 3, but there is no documentary proof
in this regard.
24. Submission has been made that as a matter of fact,
the appellant-husband is working in his mother‟s shop
wherein he gets monthly salary of Rs. 40,000/- [forty
thousand], accordingly he has filed ITR, copy of which has
been annexed with the supplementary affidavit as Annexure
SA/1 series, wherefrom it is evident that the annual income
of the appellant-husband is Rs.4,25,500/-; Rs.4,59,150/-
and Rs. 4,77,760/- respectively for the FY 2022-23, 2023-24
and 2024-25.
25. Learned counsel for the appellant-husband on the
aforesaid ground has submitted that the impugned order
requires interference.
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Submission on behalf of respondent-wife:
26. Learned counsel for the respondent-wife has
submitted that the marriage between the parties was
solemnized on 24th June 2012 and after few months, the
family members of the appellant-husband and the husband
started making pressure on her for fulfilling their demand of
Rs. 5 lacs by way of dowry, the father of the respondent-wife
somehow managed to pay them Rs. 3 lacs in the hope that it
might secure their daughter's future but the torture
perpetrated by them did not stop there and she continued to
suffer all atrocities in the hope that once she would give
birth of a child, the husband‟s behavior towards her may
change.
27. But the appellant-husband used to stay very
indifferent, disinterested and cold towards her always then
she came to know that her husband is having an
extramarital illicit relation with a woman of the said locality.
This caused great mental pain and trauma to her.
28. Further, during her stay at sasural the husband
had deprived her of any physical relation/sex and denial of
physical relation continued for years and resultantly she has
been deprived of the bliss of motherhood. Besides, the
appellant-husband used to drink on regular basis and he
used to assault and abuse her.
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29. Submission has been made that the learned family
court considering the marriage to be dead for all purposes
has decreed the suit by dissolving the marriage on grounds
of desertion and cruelty, which requires no interference by
this Court.
30. So far as the issue of permanent alimony is
concerned, submission has been made that life of the
respondent-wife has thoroughly been spoiled by the
appellant-husband who continued to torture her mentally
and physically.
31. Further submission has been made that it is true
that the respondent-wife is a very highly educated lady but
she had to sacrifice her opportunity to secure job only for
giving her 100 percent to her marriage with appellant-
husband and at present she has not sufficient earning to
sustain her life. Therefore, the amount as has been awarded
by the learned family court requires no interference for
sustenance of the respondent-wife.
32. It has further been submitted that in the marriage
itself, the respondent‟s family has spent a lot of money
which the learned family court took into consideration and
as such directed to return the same, which also requires no
interference.
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33. Learned counsel for the respondent-wife, on the
basis of aforesaid ground, has submitted that the order
passed by the learned family court requires no interference.
Analysis:
34. We have heard learned counsel for the parties and
gone through the pleading available on record as also the
finding recorded by learned Principal Judge, Family Court,
Godda.
35. The factual aspect involved in the case at hand is
that marriage between the parties was solemnized on
24.06.2012. After some times, the in-laws of the
respondent-wife and her husband stated to have started
torturing the respondent-wife for demand of dowry.
36. The respondent-wife, on the ground of cruelty and
desertion, invoking the jurisdiction of the learned family
court under Section 13(1)(i)(i-a)(i-b) of the Hindu Marriage
Act, 1955 filed suit being Original Suit No. 137 of 2021 for
dissolution of marriage.
37. Before the learned family court efforts were made
for settlement between the parties for which the parties
were sent for mediation but it failed.
38. In the suit, on being noticed though the appellant-
husband appeared but in spite of having been granted
sufficient opportunity he did not file the written statement.
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39. On behalf of respondent-wife [the petitioner in the
suit] three witnesses have been examined, P.W.1-Ahuti
Priya, the respondent-wife; P.W.2-Rekha Kumari, the
mother of the respondent-wife and P.W. 3-Shailendra
Kumar Singh, the father of the respondent-wife. But no
witness has been examined on behalf of appellant-husband.
However, witnesses produced by the appellant-wife has
been cross-examined.
40. This Court in order to appreciate the finding
recorded by learned family court requires to go through the
testimonies of witnesses, as available on record.
41. P.W.-1 Ahuti Priya (respondent-wife) has stated in
her examination-in-chief dated 25.08.2022 that her
marriage was solemnized with the appellant-husband on
24.06.2012 as per Hindu customary rites and ceremonies.
After marriage she went to her 'sasural'. At the time of
marriage, petitioner's father gave Rs. 12 lacs cash and 10
bhar Gold jewelry. When the petitioner came to her 'sasural'
after 'Duragaman', the O.P. [husband] and his family
members started making complain of having got less dowry
and they made demand for Rs. 5 lacs. When demand was
not fulfilled by the petitioner's family, then O.P. started
perpetrating varied mental and physical cruelty and torture
on her. The O.P. refused to cohabit and have physical
relation with the petitioner [wife] so that she may not give
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birth of any child and with intent to deprive her of bliss of
motherhood. During her stay at 'sasural', the petitioner
came to know that O.P. has an illicit relation with another
woman who is divorced. The O.P. always used to come late
in night and sometimes he did not come back whole night
and whenever it was objected to by the petitioner the O.P.
always used to torture her physically and mentally and he
told that he do not want child and he would not keep her.
Having found the torture unbearable, the petitioner filed a
case u/s- 498A of IPC against the O.P. The O.P‟s atrocities
increased so much that he stopped fulfilling even his basic
marital obligations and he used to refuse to have physical
relation with the petitioner. The OP continued to deprive the
petitioner her right of physical relation with him for long
since he has an illicit relation with another lady.
42. It has further been stated that the OP has good
earnings of around Rs. 5 lacs per month from his business
of cement and rod wholesale dealer, hence he does not
respect or care of any body. He always used to tell that he
would not keep her and he hardly showed any interest in
maintaining the relationship. The petitioner has gone
depressed because of her long continuous sufferings at
hands of OP and her entire life has become full of despair
and gloomy. The OP has ousted her from his house. The
family members and relatives made every endeavor to make
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him understand and realize the things and to resume his
marital life to normalcy but he did not agree. It has been
submitted that on 03.03.2021 the O.P. refused to keep the
petitioner. The marital relation between the petitioner and
OP has completely ended since last three years before and it
has reached the point of no return. The petitioner's life with
OP is not safe and it is impossible for her to lead life together
in conjugal relationship. The petitioner wants divorce from
OP on grounds of cruelty and desertion.
43. In her cross examination she has stated that her
parents gifted Rs. 12 lacs cash to the O.P., but she has no
any proof thereof. She has filed a case u/s-498A of IPC
against her husband, in that case her husband has been
acquitted. The O.P. has an illicit relation with another girl,
and she has proof of that relationship. After marriage she
lived at her sasural for one year thereafter she came back to
her maike. In the year 2019 she had gone her sasural where
she lived for three months thereafter O.P. assaulted her and
ousted her from the house. About this matter no any
panchayati was held but her father tried to convince him.
She cannot spend her life with Amit Kumar Singh.
44. P.W.-2 Rekha Kumari has stated in her affidavit
examination-in-chief dated 12.10.2022 that petitioner is her
daughter. She supported the version of her daughter and
reiterated what has been stated by PW 1.
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45. In her cross examination she has stated that this
case has been filed by her daughter against her husband for
divorce. She has gifted 5 bhar gold to her damad and 5 bhar
to her daughter. After marriage her daughter lived at her
sasural for about 6-7 months in three intervals. Her
daughter has done M.Sc. and B.Ed. Presently she is teaching
in Naktolia School, Panjwara. The woman with whom the OP
has an illicit relationship is a divorcee. Her daughter has
filed a case u/s-498A IPC against her husband/OP in which
case her husband/OP has been acquitted. Her damad has
an illicit relation with a lady, about this matter she has not
filed any case. She denied the suggestion that at the time of
marriage she has not gifted Rs. 12 lacs and 10 bhar gold. It
is true that her daughter is not happy with her marital life
and she does not want to live with her husband.
46. P.W.- 3 Shailendra Kumar Singh, has stated in his
examination-in-chief dated 17.11.2022 that petitioner is his
daughter. He has deposed as has been deposed by PW-1 and
PW-2.
47. In his cross examination he has stated that he has
given Rs. 12 lacs to his samdhi in three installments, but he
has no proof. His daughter is living at her maike for last two
years. The O.P. locked the house then his daughter came to
her maike. His daughter does not want to spend her marital
life with Amit Kumar Singh. His Damad [son-in-law] has an
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illicit relation with another lady. His daughter has filed a
case u/s-498A of IPC against O.P. His daughter is a teacher
since 2013. No any panchayati was held between both the
parties. He denied the suggestion that his daughter does not
want to live with Amit Kumar since beginning.
48. This Court on the basis of argument advanced on
behalf of parties as also testimonies of the witnesses has
gone into the issue of dissolution of marriage and found
that the respondent-wife had filed the suit for dissolution
of marriage on the ground of cruelty and desertion.
49. Herein cruelty has been taken by the appellant as
the main ground for dissolution of marriage. It needs to
refer herein that he "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.
50. 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
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Hon‟ble Apex Court emphasized that "cruelty" can have
no fixed definition.
51. 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."
52. 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."
53. 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
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and his family while he was conducting a cross-
examination. The Hon'ble Apex Court held these
allegations against the husband to constitute "cruelty".
54. 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.
55. 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.
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56. From the pleading available on record, it is evident
that there is allegation of demand of dowry and on non-
fulfillment of the same, the wife was subjected to torture.
Further, there is allegation of illicit relationship of
husband. All the witnesses have all along supported the
version of respondent-wife regarding the allegation so
made by the respondent-wife, in their testimonies.
However, in support of appellant-husband no witness has
been examined though sufficient opportunity has been
granted to him. So this Court is of the view that the
factum of cruelty has been proved.
57. So far the issue of „desertion is concerned, this
Court, in order to appreciate the aforesaid argument
needs to refer herein the word „desertion‟. The word
„desertion‟ has been given in Explanation to Section 13 (1)
of the Act, 1955 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."
58. It is pertinent to note that the word „desertion‟, as
has been defined in Explanation part of Section 13 of the
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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.
59. 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."
60. 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.
61. Desertion is not the withdrawal from a place but
from a state of things, for what the law seeks to enforce is
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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.
62. 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.
63. 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.
64. Similarly two elements are essential so far as the
deserted spouse is concerned: (1) the absence of consent,
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and (2) absence of conduct giving reasonable cause to the
spouse leaving the matrimonial home to from the
necessary intention aforesaid.
65. The law consistently has been laid down that
desertion means the intentional abandonment of one
spouse by the other without the consent of the other and
without a reasonable cause. The deserted spouse must
prove that there is a factum of separation and there is an
intention on the part of deserting spouse to bring the
cohabitation to a permanent end. In other words, there
should be animus deserendi on the part of the deserting
spouse. There must be an absence of consent on the part
of the deserted spouse and the conduct of the deserted
spouse should not give a reasonable cause to the
deserting spouse to leave the matrimonial home.
66. The Hon‟ble Apex Court in the case of Ravi Kumar
vs Julmidevi reported in (2010) 4 SCC 476 has observed
that the party alleging desertion must not only prove that
the other spouse was living separately but also must
prove that there is an animus deserendi on the part of the
wife and the husband must prove that he has not
conducted himself in a way which furnishes reasonable
cause for the wife to stay away from the matrimonial
home. For ready reference, the relevant part of the
judgment is quoted as under:
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"13. It may be noted only after the amendment of the
said Act by the amending Act 68 of 1976, desertion per
se became a ground for divorce. On the question of
desertion, the High Court held that in order to prove a
case of desertion, the party alleging desertion
must not only prove that the other spouse was
living separately but also must prove that there is
an animus deserendi on the part of the wife and
the husband must prove that he has not
conducted himself in a way which furnishes
reasonable cause for the wife to stay away from
the matrimonial home."
67. From the aforesaid law laid down by Hon‟ble Apex
Court, it is evident that each and every separation cannot
be said to be „desertion‟ rather if the wife or husband are
living separately on their own wish then only the ground
of „desertion‟ for getting the decree of divorce would be
available to the party concerned.
68. It is further evident that living away on one‟s wish is
to be substantiated by the parties that if either of them,
husband or wife, is forced to live the house then the said
separation would come under the purview of desertion.
The party alleging desertion must not only prove that the
other spouse was living separately but also must prove
that there is an animus deserendi.
69. This Court, on the basis of aforesaid judgment, has
again gone through the impugned judgment passed by the
learned family court in order to see as to whether any
evidence has been led in order to substantiate the ground
of desertion by taking the ground that the wife, the
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respondent herein, has on her own has left the matrimonial
house or it is the appellant who forced her to leave the
matrimonial house.
70. In order to answer this, this Court has again gone to
the relevant part of testimony of the witnesses. From the
testimonies of P.W-1 respondent-wife and P.W-2 and P.W-
3, who are the mother and father respectively of the
respondent, and found that all have repeatedly deposed
about torture given to the respondent at her matrimonial
home and illicit relationship of the appellant husband.
These witnesses have also deposed about non-
cohabitation of husband as a result of which respondent
could not be blessed with any child. Hence, it was
appellant-husband, who forced his wife to leave the
matrimonial house. Appellant has not led any evidence
that any conduct of the respondent made him to desert
her.
71. The learned family court taking into consideration
these facts has passed the order for dissolution of
marriage and decreed the suit for divorce, which cannot
be faulted with.
72. Therefore, the matter was heard on merit on the
issue of permanent alimony.
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73. It requires to mention herein that permanent
alimony has been dealt under Section 25 of the Hindu
Marriage Act, 1955, which reads as under:
"25. Permanent alimony and maintenance.--(1) Any
court exercising jurisdiction under this Act may, at the time
of passing any decree or at any time subsequent thereto, on
application made to it for the purpose by either the wife or the
husband, as the case may be, order that the respondent
shall pay to the applicant for her or his maintenance and
support such gross sum or such monthly or periodical sum for
a term not exceeding the life of the applicant as, having
regard to the respondent's own income and other property, if
any, the income and other property of the applicant, the
conduct of the parties and other circumstances of the case, it
may seem to the court to be just, and any such payment may
be secured, if necessary, by a charge on the immovable
property of the respondent
(2) If the court is satisfied that there is, a change in the
circumstances of either party at any time after it has made
an order under sub-section (1), it may at the instance of either
party, vary, modify or rescind any such order in such manner
as the court may deem jus
(3) If the court is satisfied that the party in whose favour an
order has been made under this section has remarried or, if
such party is the wife, that she has not remained chaste, or,
if such party is the husband, that he has had sexual
intercourse with any woman outside wedlock, it may at the
instance of the other party vary, modify or rescind any such
order in such manner as the court may deem just."
74. The issue of permanent alimony has elaborately
been dealt with by Hon‟ble Apex Court in the case of
Rajnesh v. Neha & Anr. (2021) 2 SCC 324 which is the
leading case law in the field, wherein the Hon‟ble Apex Court
taking into consideration all aspects of the matter in
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granting permanent alimony/maintenance, has given certain
directives and also the yardstick have been given for
assessing the permanent alimony. For ready reference, the
relevant paragraphs of the judgment wherein law has been
laid down for permanent alimony is quoted as under:
"Permanent Alimony:
73. Parties may lead oral and documentary evidence with
respect to income, expenditure, standard of living, etc. before
the court concerned, for fixing the permanent alimony payable
to the spouse.
74. In contemporary society, where several marriages do not
last for a reasonable length of time, it may be inequitable to
direct the contesting spouse to pay permanent alimony to the
applicant for the rest of her life. The duration of the marriage
would be a relevant factor to be taken into consideration for
determining the permanent alimony to be paid.
75. Provision for grant of reasonable expenses for the
marriage of children must be made at the time of determining
permanent alimony, where the custody is with the wife. The
expenses would be determined by taking into account the
financial position of the husband and the customs of the family
76. If there are any trust funds/investments created by any
spouse/grandparents in favour of the children, this would also
be taken into consideration while deciding the final child
support.
75. Further the Hon‟ble Apex Court from paragraphs 77
to 85 has laid down the criteria for determining the quantum
of maintenance taking into consideration the objection of
granting interim/permanent alimony to ensure that
dependent spouse is not reduced to destitution or vagrancy
on account of failure of marriage and not as a punishment to
the other spouse by taking into various factors viz. Status of
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the parties; reasonable wants of the claimant; the
independent income and property of the claimant; the
number of persons, the non-applicant has to maintain etc.
For ready reference, the relevant paragraphs of the judgment
is quotes as under:
"Criteria for determining quantum of maintenance
77. The objective of granting interim/permanent alimony is
to ensure that the dependent spouse is not reduced to
destitution or vagrancy on account of the failure of the
marriage, and not as a punishment to the other spouse.
There is no straitjacket formula for fixing the quantum of
maintenance to be awarded
78. The factors which would weigh with the court inter alia
are the status of the parties; reasonable needs of the wife
and dependent children; whether the applicant is educated
and professionally qualified; whether the applicant has any
independent source of income; whether the income is
sufficient to enable her to maintain the same standard of
living as she was accustomed to in her matrimonial home;
whether the applicant was employed prior to her marriage;
whether she was working during the subsistence of the
marriage; whether the wife was required to sacrifice her
employment opportunities for nurturing the family, child
rearing, and looking after adult members of the family;
reasonable costs of litigation for a non-working wife. [ Refer
to JasbirKaurSehgal v. District Judge, Dehradun, (1997) 7
SCC 7; Refer to VinnyParmvirParmar v. ParmvirParmar,
(2011) 13 SCC 112 : (2012) 3 SCC (Civ) 290]
79. In Manish Jain v. Akanksha Jain [Manish
Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC
(Civ) 712] this Court held that the financial position of the
parents of the applicant wife, would not be material while
determining the quantum of maintenance. An order of
interim maintenance is conditional on the circumstance that
the wife or husband who makes a claim has no independent
income, sufficient for her or his support. It is no answer to a
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claim of maintenance that the wife is educated and could
support herself. The court must take into consideration the
status of the parties and the capacity of the spouse to pay
for her or his support. Maintenance is dependent upon
factual situations; the court should mould the claim for
maintenance based on various factors brought before it.
80. On the other hand, the financial capacity of the
husband, his actual income, reasonable expenses for his
own maintenance, and dependent family members whom he
is obliged to maintain under the law, liabilities if any, would
be required to be taken into consideration, to arrive at the
appropriate quantum of maintenance to be paid. The court
must have due regard to the standard of living of the
husband, as well as the spiralling inflation rates and high
costs of living. The plea of the husband that he does not
possess any source of income ipso facto does not absolve
him of his moral duty to maintain his wife if he is able-
bodied and has educational qualifications.
[ReemaSalkan v. Sumer Singh Salkan, (2019) 12 SCC 303 :
(2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri) 339]
81. A careful and just balance must be drawn between all
relevant factors. The test for determination of maintenance in
matrimonial disputes depends on the financial status of the
respondent, and the standard of living that the applicant
was accustomed to in her matrimonial home.
[Chaturbhuj v. SitaBai, (2008) 2 SCC 316 : (2008) 1 SCC
(Civ) 547 : (2008) 1 SCC (Cri) 356] The maintenance amount
awarded must be reasonable and realistic, and avoid either
of the two extremes i.e. maintenance awarded to the wife
should neither be so extravagant which becomes oppressive
and unbearable for the respondent, nor should it be so
meagre that it drives the wife to penury. The sufficiency of
the quantum has to be adjudged so that the wife is able to
maintain herself with reasonable comfort.
82. Section 23 of the HAMA provides statutory guidance
with respect to the criteria for determining the quantum of
maintenance. Sub-section (2) of Section 23 of the HAMA
provides the following factors which may be taken into
consideration : (i) position and status of the parties, (ii)
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reasonable wants of the claimant, (iii) if the
petitioner/claimant is living separately, the justification for
the same, (iv) value of the claimant's property and any
income derived from such property, (v) income from
claimant's own earning or from any other source.
83. Section 20(2) of the DV Act provides that the monetary
relief granted to the aggrieved woman and/or the children
must be adequate, fair, reasonable, and consistent with the
standard of living to which the aggrieved woman was
accustomed to in her matrimonial home.
84. The Delhi High Court in Bharat
Hegde v. SarojHegde [Bharat Hegde v. SarojHegde, 2007
SCC OnLine Del 622 : (2007) 140 DLT 16] laid down the
following factors to be considered for determining
maintenance : (SCC OnLine Del para 8)
"1. Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.
4. The number of persons, the non-applicant has to
maintain.
5. The amount should aid the applicant to live in a similar
lifestyle as he/she enjoyed in the matrimonial home.
6. Non-applicant's liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical
attendance and treatment, etc. of the applicant.
8. Payment capacity of the non-applicant.
9. Some guesswork is not ruled out while estimating the
income of the non-applicant when all the sources or correct
sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded under Section 125 CrPC is
adjustable against the amount awarded under Section 24 of
the Act."
85. Apart from the aforesaid factors enumerated
hereinabove, certain additional factors would also be
relevant for determining the quantum of maintenance
payable."
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76. Learned counsel for the appellant-husband has
submitted that the wife has earnings. Therefore, this Court
is quoting relevant paragraph from case of Rajnesh (supra),
wherein the factor where the wife is earning some income
has also been dealt with by Hon‟ble Apex Court. For ready
reference, the said paragraph of the judgment is quoted as
under:
"Where wife is earning some income:
90. The courts have held that if the wife is earning, it cannot
operate as a bar from being awarded maintenance by the husband.
The courts have provided guidance on this issue in the following
judgments:
90.1. In Shailja v. Khobbanna [Shailja v. Khobbanna, (2018)
12 SCC 199 : (2018) 5 SCC (Civ) 308; See also the decision of the
Karnataka High Court in P. Suresh v. S. Deepa, 2016 SCC OnLine
Kar 8848 : 2016 Cri LJ 4794 (Kar)] , this Court held that merely
because the wife is capable of earning, it would not be a sufficient
ground to reduce the maintenance awarded by the Family Court.
The court has to determine whether the income of the wife is
sufficient to enable her to maintain herself, in accordance with the
lifestyle of her husband in the matrimonial home.
[Chaturbhuj v. SitaBai, (2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547
: (2008) 1 SCC (Cri) 356] Sustenance does not mean, and cannot be
allowed to mean mere survival. [Vipul Lakhanpal v. Pooja Sharma,
2015 SCC OnLine HP 1252 : 2015 Cri LJ 3451]
90.2. In Sunita Kachwaha v. Anil Kachwaha [Sunita
Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715 : (2015) 3 SCC
(Civ) 753 : (2015) 3 SCC (Cri) 589] the wife had a postgraduate
degree, and was employed as a teacher in Jabalpur. The husband
raised a contention that since the wife had sufficient income, she
would not require financial assistance from the husband. The
Supreme Court repelled this contention, and held that merely
because the wife was earning some income, it could not be a ground
to reject her claim for maintenance.
90.3. The Bombay High Court in Sanjay Damodar
Kale v. Kalyani Sanjay Kale [Sanjay Damodar Kale v. Kalyani
Sanjay Kale, 2020 SCC OnLine Bom 694] while relying upon the
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judgment in Sunita Kachwaha [Sunita Kachwaha v. Anil
Kachwaha, (2014) 16 SCC 715 : (2015) 3 SCC (Civ) 753 : (2015) 3
SCC (Cri) 589] , held that neither the mere potential to earn, nor the
actual earning of the wife, howsoever meagre, is sufficient to deny
the claim of maintenance.
90.4. An able-bodied husband must be presumed to be capable of
earning sufficient money to maintain his wife and children, and
cannot contend that he is not in a position to earn sufficiently to
maintain his family, as held by the Delhi High Court in Chander
Parkash v. Shila Rani [Chander Parkash v. Shila Rani, 1968
SCC OnLine Del 52 : AIR 1968 Del 174] . The onus is on the
husband to establish with necessary material that there are
sufficient grounds to show that he is unable to maintain the family,
and discharge his legal obligations for reasons beyond his control. If
the husband does not disclose the exact amount of his income, an
adverse inference may be drawn by the court.
90.5. This Court in Shamima Farooqui v. Shahid
Khan [Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705 :
(2015) 3 SCC (Civ) 274 : (2015) 2 SCC (Cri) 785] cited the judgment
in Chander Parkash [Chander Parkash v. Shila Rani, 1968 SCC
OnLine Del 52 : AIR 1968 Del 174] with approval, and held that the
obligation of the husband to provide maintenance stands on a
higher pedestal than the wife.
77. This Court, in the touchstone of aforesaid judgment,
is now coming to factual aspect involved in the present case
so as to come to the conclusion that the quantum of
permanent alimony as awarded to the respondent-wife
requires interference or not.
78. The respondent-wife has stated that her husband is
doing wholesale business of cement and rod (building
materials) and he has other sources of income also whereby
he earns rupees 5 lakhs per month though the appellant-
husband has denied the said fact but did not produce any
chit of paper.
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79. However, before this Court appellant-husband has
produced the copy of ITR of the FY 2022-23, 2023-24 and
2024-25, showing his annual income as Rs.4,25,500/-;
Rs.4,59,150/- and Rs. 4,77,760/- respectively. He has
stated that he is working in his mother‟s shop wherein he
gets monthly salary of Rs. 40,000/- [forty thousand].
80. It is worthwhile to mention herein that the ITRs
copy of which has been produced is not of the year when the
suit was filed or before it i.e., before 2021-22 and untenable
ground has been taken he is working in the shop of his
mother.
81. Further, though the ground has been taken that the
respondent-wife is educated lady but it is admitted fact that
after marriage solemnized in the 2012 she is facing the rigor
of divorce and litigation for more than a decade and now she
is about the age of 40, therefore, the learned family court
directed the appellant-husband to pay a consolidated
amount of Rs. 25,00,000/-(Rs. Twenty Five Lacs) as
Permanent Alimony to the respondent-wife as also to return
the stridhan and also directed the parties to exchange the
gifts to each other, according to considered view requires no
interference, for the reasons and discussions made
hereinabove.
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82. Accordingly, the instant appeal fails and is
dismissed.
83. Pending Interlocutory Application, if any, stands
disposed of.
I agree (Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Alankar/A.F.R.
16th, September, 2025
