[Cites 19, Cited by 0]
Jharkhand High Court
Amit Kumar Jha vs Rani Devi on 17 February, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
[2026:JHHC:4543-DB]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 38 of 2022
Amit Kumar Jha, aged about 46 years, son of Subodh Kumar Jha,
resident of Ward No.21, Mohalla Karpoori Nagar, P.O. & P.S.-
Madhepura, District-Madhepura, State-Bihar.
... ... Appellant/Petitioner
Versus
Rani Devi, wife of Amit Kumar Jha, permanent resident of Ward
No.21, Mohalla-Karpoori Nagar, P.O. & P.S.-Madhepura, District-
Madhepura, State Bihar, present residing C/o Bishnukant Jha, Village-
Murramkalan, Public K.G.T. School, P.O. & P.S. Ramgarh, District
Ramgarh, State-Jharkhand.
... ... Respondent/Respondent
-------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
-------
For the Appellant : Mr. Anil Kumar Sinha, Advocate
For the Respondent : Mr. Pratik Sen, Advocate
----------------------------
C.A.V. on 12th February, 2026 Pronounced on: 17th February, 2026
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 24.02.2022 and decree signed
on 08.03.2022 passed by the learned Principal District Judge-cum-
Principal Judge, Family Court, Ramgarh in Original Suit No. 174 of 2014,
whereby and whereunder, the petition filed under Section 13 of the Hindu
Marriage Act, 1955 by the appellant/petitioner seeking a decree of divorce
against his wife, has been dismissed.
2. The brief facts of the case leading to filing of the divorce petition by the
appellant/petitioner needs to be referred herein as under:
The case of the petitioner is that, the petitioner Amit Kumar Jha
and the respondent Rani Devi are legally married couple and their
marriage was solemnized on 08.03.2000 according to Hindu rites and
customs. After the marriage, the respondent started living with her
husband, the petitioner, as his lawful wife. In due course of time, the
couple was blessed with three children out of their wedlock.
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It is alleged that, from the very beginning, the respondent had
developed strained relationship with the petitioner and his other family
members. She used to torture the petitioner, his mother as well as his
brother. She was not willing to cook food and was not ready to live with
the petitioner. Their conjugal life had become a hell, but even then, the
petitioner tried his level best to persuade his wife, but all in vain.
Ultimately, she left her matrimonial home on 22.02.2009 alongwith her
two children and started living at village Morramkalan, Ramgarh.
The petitioner had made several attempts to bring her back, but,
instead, he was abused and insulted by his wife and her other family
members and as such, they have been living separately since 22.02.2009.
In the meantime, the petitioner had filed a petition u/s 9 of Hindu
Marriage Act, 1955 for restitution of his conjugal rights, but all his efforts
went futile. Hence, the suit for divorce was filed.
3. The learned Family Judge has called upon the respondent-wife. The wife
has filed written statement and altogether five issues have been framed
which are as follows:
(i) Whether the suit as framed is maintainable?
(ii) Whether after solemnization of the marriage, the respondent has
treated the petitioner with cruelty?
(iii) Whether the petitioner has been deserted for a continuous period of
not less than two years immediately preceding the presentation of
the petitioner?
(iv) Whether the petitioner is entitled for decree of divorce?
(v) To what relief or reliefs the petitioner is entitled for?
4. The evidences have been laid on behalf of both the parties. Thereafter, the
judgment has been passed dismissing the suit by holding that the
petitioner (appellant herein) has failed to prove his case for divorce on the
grounds of cruelty and desertion against the respondent/wife on the
touchstone of preponderance of probabilities, which is the subject matter
of the present appeal.
Submission of the learned counsel for the appellant/petitioner:
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5. It has been contended on behalf of the appellant/petitioner that the factual
aspect which was available before the learned Single 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 issue of cruelty, i.e., not taking care of the
appellant/petitioner and even of the parents and not cooking food as also
the fact of desertion has not been taken into consideration in right
perspective even though the fact about living separately since 22.02.2009
has well been established.
7. Learned counsel for the appellant/petitioner, based upon the aforesaid
ground, 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:
8. Per contra, Mr. Pratik Sen, 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 cruelty and desertion and having come to the conclusion that no
evidence has been adduced to establish either cruelty or desertion, has
dismissed the petition.
9. It has been contended that the allegation so far as alleged of commission
of cruelty is considered, the ground has been raised before the learned
Family Judge that the respondent-wife is not taking care of the
appellant/petitioner and the in-laws.
10. It has been submitted that at the time of marriage, sufficient dowry was
given by the parents of the respondent-wife but the appellant/petitioner
and his parents demanded additional dowry of Rs. 3 lac at the time of her
Bidai, which had taken place after 2½ years. In the meantime, the
appellant/petitioner had been regularly visiting the parental house of the
respondent at Ramgarh and was cohabiting with her. Finally, her Bidai
was effected after the father of respondent presented large number of
articles to the appellant/petitioner and his parents. Thereafter, they lived
peacefully at her matrimonial for about three months. However, the
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appellant/petitioner and his other family members again started
demanding additional sum of Rs. 3 lac as dowry and she was even
subjected to assault on non-fulfillment of their aforesaid demand. In the
meantime, the respondent gave birth to a girl child, who is now 14 years
old. However, respondent was reprimanded for giving birth to a girl child.
11. It has also been submitted that the respondent-wife again became pregnant
in the year 2005, whereupon, the appellant/petitioner and his family
members tried to terminate her pregnancy, but the father of the respondent
brought her back to her parent's house, where she gave birth to her second
girl child. Thereafter, the appellant/petitioner and his family members
again demanded additional dowry and refused to keep her minor daughter.
Lastly, on 22.02.2009, the father of the respondent came to her
matrimonial home situated at Madhepura and took her back to Ramgarh
on 15.03.2009. Subsequently, the petitioner, came to her parent's home
and threatened that, his kids would be killed if his demand was not
fulfilled. Subsequently, the respondent filed a complaint case before
C.J.M., Hazaribag, vide Complaint Case No. 424/09, u/s 498A of IPC and
its other allied sections, wherein, cognizance has been taken against all the
accused persons.
12. The respondent has also filed a case of Maintenance u/s 125 Cr.P.C, vide
Maintenance Case No. 74/09, which was allowed in her favour and the
appellant/petitioner was directed to pay a sum of Rs. 7,000/- per month to
her. Their two children, namely, Mohit Kumar and Muskan are living with
the respondent at her parent's home and her one daughter, namely,
Masoom Kumari, is living with the appellant/petitioner. The case for
restitution of conjugal rights, vide MTS No. 167/09 filed by the
appellant/petitioner was dismissed as withdrawn on 25.06.2014, as in that
case the appellant/petitioner was directed to pay Rs. 6,000/- per month as
ad-interim maintenance to the respondent.
13. Learned counsel, based upon the aforesaid ground, has submitted that if
on that pretext, the factum of cruelty and 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 error.
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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 cruelty and desertion, i.e., by
filing an application under Section 13 of the Hindu Marriage Act, 1955
16. It is evident from the factual aspect that the appellant/petitioner had a
motion by filing a petition under Section 13 of the Hindu Marriage Act,
1955 for decree of divorce on the ground of cruelty and desertion on the
background of the fact, as has been pleading in the suit, that the marriage
of the petitioner and the respondent was solemnized on 08.03.2000,
according to Hindu rites and customs. After the marriage, the respondent
started living with her husband as his lawful wife. The couple was blessed
with three children out of their wedlock. It is the case of the petitioner that
from the very beginning, the respondent used to torture the petitioner, his
mother as well as his brother. She was not willing to cook food and was
not ready to live with the petitioner. Ultimately, the respondent left her
matrimonial home on 22.02.2009 alongwith her two children and started
living at village Morramkalan, Ramgarh. It is also the case of the
petitioner that the petitioner had made several attempts to bring her back,
but, instead, he was abused and insulted by his wife and her other family
members and as such, they have been living separately since 22.02.2009.
In the meantime, the petitioner had filed a petition u/s 9 of Hindu
Marriage Act, 1955 for restitution of his conjugal rights, but all his efforts
went futile.
17. Written statement was filed by the respondent/wife wherein all allegation
has been refuted and accordingly, issues have been framed wherein
primarily issue nos.2 and 3 pertains to cruelty and desertion.
18. The evidence has been led on behalf of both the parties. For ready
reference, the evidence led on behalf of the appellant/petitioner is being
referred as under:
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(i) PW-1 is the appellant/petitioner himself who has stated in
examination-in-chief that two days after his marriage with the
respondent on 08.03.2000, the respondent had developed bitterness
towards the petitioner and his other family members. She used to
pressurize him to live separately from his mother and his
unemployed brother, and when he did not accede to her such
request, she threatened him to leave her company. He stated that,
his daughter, Masoom was under his care and custody. He further
stated that, he had got compassionate appointment in Madhepura
University after the death of his father and the respondent always
insisted upon him to spend his entire earnings on the respondent
and also to neglect his mother and brother; and on raising objection,
the petitioner was ill-treated and abused by the respondent. Her
brother and father also used to instigate her and asked to leave the
company of her husband and lastly, despite objections from the
petitioner, the respondent went away to her parent's home on
22.02.2009 alongwith her two children leaving behind one daughter
with him.
It has also been stated by the appellant/petitioner that in
the meantime, he took several steps to bring the respondent back,
but she did not accede to his request and thereafter, he had filed a
case at Hazaribag, vide Case No. 1167/09, and it was in connection
with the aforesaid case that, both of them were referred before the
mediation center, but even before the Mediator, she refused to join
his company. He had made three attempts to bring her back, but he
was abused by the brother of the respondent and the respondent
herself refused to join his company.
The appellant/petitioner has admitted in his cross-
examination that, the court had directed him to pay Rs. 7,000/- per
month as maintenance to his wife and two children in connection
with case No. 74/09. He claimed to have filed an appeal against the
aforesaid order before the Hon'ble High Court, but he did not have
any knowledge about fate of the case and he candidly admitted that,
he has not paid any maintenance to his wife and children. He stated
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to have paid Rs. 6000/- per month to his wife and children for
continuous six months in connection with MTS Case No. 167/14,
which was dismissed in the year 2014. He stated that his wife had
filed a case of dowry demand against him, vide case No. 424/09. He
did not know in which class his children Mohit and Muskan were
studying. He has denied that, he had withdrawn the MTS Case No.
167/09 as he did not want to pay interim maintenance to his wife.
19. The respondent-wife has also been examined as R.W.-1. For ready
reference, her evidence is being referred as under:
(i) RW-1 (respondent) has stated in her examination-in-chief that after
her marriage, her in-laws did not perform her Gauna and were
deferring it, but her husband used to visit her house and demanded
Rs. 3 lac to get the compassionate appointment after death of his
father. He also used to demand motorcycle, TV and furniture. Her
Gauna was performed 3 years after her marriage. She stated that,
thereafter, her husband and his family members started demanding
additional dowry of Rs. 3 lac and on non-fulfillment of the same,
she was subjected to cruelty. Her daughter Muskan Kumari was
born at her matrimonial home, whereupon, her husband had again
demanded Rs. 3 lac. They had also performed sex determination
test of fetus during her 2nd pregnancy and on coming to know that,
it was a girl child, they pressurized her to terminate her pregnancy.
Thereafter, she narrated the above facts to her parents and, on
26.03.2005, her brother and father came to her matrimonial home
and took her back to her parent's home, where she gave birth to her
2nd daughter. In the meantime, her husband had also got
compassionate appointment and he demanded additional dowry of
Rs. 3 lac and that, then only he would keep the petitioner and her
three children with him. Subsequently, she had given an application
before Women Commission at Patna in the year 2007, and
thereafter, they had executed a compromise wherein her husband
had undertaken not to subject her to physical and mental cruelty in
future. Thereafter, the respondent went to her in-laws' house, but
she was again subjected to cruelty. In the meantime, her husband
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got promoted for class-III service in the year 2009 and now, they
have started demanding Rs. 5 lac from her and she was subjected to
cruelty on non-fulfillment of their such demand. Subsequently, she
again filed a complaint before Women Commission, whereupon,
her husband and her brother-in-law came to her parent's home and
pressurized her to dissolve her marriage as the petitioner wanted to
solemnize his 2nd marriage.
Thereafter, she filed a case of dowry demand, which was
initially filed at Hazaribag and subsequently, it was transferred to
Ramgarh as her lawyer had stopped taking steps and since she was
not examined in that case, the accused persons got acquitted.
It has further been stated that the appellant/petitioner had
entered into compromise before the mediation center with the
respondent and he had agreed to take her alongwith her two
children to Madhepura, but he did not abide by the aforesaid
undertaking and that maintenance case was decided in her favour on
26.03.2015. The appellant/petitioner had preferred criminal revision
vide Cr. Revision No. 450/15 against the aforesaid order, but the
said revision was dismissed on 10.05.2019 by the Hon'ble High
Court. It has further been stated that the appellant/petitioner has not
paid any maintenance to the respondent till date. He had also not
paid the interim maintenance amount, which was allowed to her in
the case of restitution of conjugal rights. She (RW1) asserted that
petitioner had solemnized 2nd marriage and he also have children
from his 2nd wife.
She (RW1) admitted in her cross-examination that, her
husband was unemployed at the time of her marriage and claimed
that her Gauna was performed 2½ years after her marriage. She
stated that, her husband has taken her to Dr. P. Tuti for
determination of her pregnancy and denied that, there was no doctor
named as P. Tuti at Madhepura. She denied that, she does not want
the accompany her husband to Madhepura.
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20. 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 pleading, i.e.,
plaint and written statement, has found that the element of cruelty and
desertion could not have been established and accordingly dismissed the
said suit against which the present appeal has been filed.
21. 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.
22. While on the other hand, argument has been advanced on behalf of the
respondent has submitted that the judgment is well considered one and
merely by committing fraud, the suit for divorce has been filed.
23. 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:
"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
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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.""
24. Thus, a perverse verdict may probably be defined as one that is not only
against the weight of evidence but is altogether against the evidence.
Further "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. Further 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 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.
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26. 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.
27. 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."
28. 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."
29. 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.
30. 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".
31. 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
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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.
32. Further, in the case of Vishwanath Agrawal v. Sarla Vishwanath
Agrawal, (2012) 7 SCC 288, the Hon'ble Apex Court has held as follows:
"22. The expression "cruelty" has an inseparable nexus with human
conduct or human behaviour. It is always dependent upon the social
strata or the milieu to which the parties belong, their ways of life,
relationship, temperaments and emotions that have been conditioned
by their social status.
25. After so stating, this Court observed in Shobha Rani case about
the marked change in life in modern times and the sea change in
matrimonial duties and responsibilities. It has been observed that :
(SCC p. 108, para 5)
"5. ... when a spouse makes a complaint about the treatment of
cruelty by the partner in life or relations, the court should not search
for standard in life. A set of facts stigmatised as cruelty in one case
may not be so in another case. The cruelty alleged may largely depend
upon the type of life the parties are accustomed to or their economic
and social conditions. It may also depend upon their culture and
human values to which they attach importance."
26. Their Lordships in Shobha Rani case referred to the observations
made in Sheldon v. Sheldon wherein Lord Denning stated, "the
categories of cruelty are not closed". Thereafter, the Bench proceeded
to state thus: (Shobha Rani case, SCC p. 109, paras 5-6)
"5. ... Each case may be different. We deal with the conduct of human
beings who are not generally similar. Among the human beings there
is no limit to the kind of conduct which may constitute cruelty. New
type of cruelty may crop up in any case depending upon the human
behaviour, capacity or incapability to tolerate the conduct complained
of. Such is the wonderful (sic) realm of cruelty. 1. These preliminary
observations are intended to emphasise that the court in matrimonial
cases is not concerned with ideals in family life. The court has only to
understand the spouses concerned as nature made them, and consider
their particular grievance. As Lord Reid Gollins v. Gollins : (All ER p.
972 G-H) observed in „... In matrimonial affairs we are not dealing
with objective standards, it is not a matrimonial offence to fall below
the standard of the reasonable man (or the reasonable woman). We
are dealing with this man or this woman.‟"
33. In the case of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 it has been
held by the Hon'ble Apex Court as follows: --
"99. Human mind is extremely complex and human behaviour is
equally complicated. Similarly human ingenuity has no bound,
therefore, to assimilate the entire human behaviour in one definition is
almost impossible. What is cruelty in one case may not amount to
cruelty in other case. The concept of cruelty differs from person to
person depending upon his upbringing, level of sensitivity,
educational, family and cultural background, financial position, social
status, customs, traditions, religious beliefs, human values and their
value system.
100. Apart from this, the concept of mental cruelty cannot remain
static; it is bound to change with the passage of time, impact of
modern culture through print and electronic media and value system,
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etc. What may be mental cruelty now may not remain a mental cruelty
after a passage of time or vice versa. There can never be any
straitjacket formula or fixed parameters for determining mental
cruelty in matrimonial matters. The prudent and appropriate way to
adjudicate the case would be to evaluate it on its peculiar facts and
circumstances while taking aforementioned factors in consideration."
34. 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.
35. It is, thus, evident 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.
36. Thus, from the aforesaid settled position of law it is evident that "Cruelty"
under matrimonial law consists of conduct so grave and weighty as to lead
one to the conclusion that one of the spouses cannot reasonably be
expected to live with the other spouse. It must be more serious than the
ordinary wear and tear of married life.
37. Cruelty must be of such a type which will satisfy the conscience of the
Court that the relationship between the parties has deteriorated to such an
extent that it has become impossible for them to live together without
mental agony. The cruelty practiced may be in many forms and it must be
productive of an apprehension in the mind of the other spouse that it is
dangerous to live with the erring party. Simple trivialities which can truly
be described as a reasonable wear and tear of married life cannot amount
to cruelty. In many marriages each party can, if it so wills, discover many
a cause for complaint but such grievances arise mostly from
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temperamental disharmony. Such disharmony or incompatibility is not
cruelty and will not furnish a cause for the dissolution of marriage.
38. Since the issue of desertion has also been raised therefore, 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.
39. 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.
40. 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
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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.
41. It is, thus, evident from the aforesaid reference of meaning of desertion
that the quality of permanence is one of the essential elements which
differentiates desertion from wilful separation. If a spouse abandons the
other spouse in a state of temporary passion, for example, anger or
disgust, without intending permanently to cease cohabitation, it will not
amount to desertion. For the offence of desertion, so far as the deserting
spouse is concerned, two essential conditions must be there, namely, (1)
the factum of separation, and (2) the intention to bring cohabitation
permanently to an end.
42. 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.
43. 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
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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."
44. 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.
45. Admittedly the petitioner/appellant has not made any allegation of any act
of physical cruelty on the part of respondent. So far as the mental cruelty
is concerned, it has been alleged that two days after his marriage with the
respondent on 08.03.2000, the respondent had developed bitterness
towards the petitioner and his other family members and respondent used
to pressurize him to live separately from his mother and unemployed
brother. It has further been alleged that, petitioner always insisted upon
him to spend the entire earnings on the respondent and neglect his mother
and brother and lastly, despite objections from the petitioner/appellant, the
respondent went away to her parent's home on 22.02.2009 alongwith her
two children leaving behind one daughter with him.
46. In the aforesaid context it needs to refer herein that the respondent has
stated in her cross-examination that, her gauna (second marriage) was
performed two and a half years after her marriage, i.e., she had visited her
matrimonial home only after her gauna, which is a customary practice.
Therefore, the claim of the petitioner gets falsified that only two days after
her marriage she had developed bitterness against him or that she insisted
upon him to live separately from his mother and brother.
47. Further from the impugned order as also from material available on record
it is evident that the petitioner/appellant has not brought on record any
cogent evidence to substantiate his claim that, respondent/wife insisted
upon him to spent his entire earnings upon her and to neglect his mother
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and brother. Further the petitioner/appellant has not examined his mother
or brother as witness to substantiate any of his claims.
48. The learned Family Court has also taken into consideration in the
impugned order that the fact that after two days of the marriage, the
respondent developed bitterness against him cannot be said to be correct
in view of the admitted fact that the respondent visited her matrimonial
home for the first time after 2½ years after the marriage after her gauna
was performed.
49. The learned Family Court has also taken into consideration that the
appellant/petitioner was not paying any maintenance towards his wife
which has been admitted by the appellant/petitioner which shows his
conduct towards his wife and children. Further, the fact of dowry has also
been taken into consideration by the learned Family Judge as the
photocopy of the settlement dated 28.03.2007, arrived at on the basis of
the complaint made by the respondent before the Women Commission at
Patna in the year 2007, which had been exhibited, discloses that the
appellant/petitioner had undertaken before the Commission that he would
keep his wife with full honour and dignity and would not subject her to
cruelty which somehow shows that the respondent was subjected to
cruelty.
50. 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 on her own wish rather it
has been taken note in the impugned judgment as has been contended by
the respondent that the respondent had been ousted from her matrimonial
home on non-fulfillment of the demand of dowry.
51. Further in the instant case, though the factum of separation is there, but
appellant has failed to prove that the respondent had the intention to bring
the cohabitation permanently to an end, therefore, the animus deserendi is
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lacking in this case on part of the respondent who was still willing to live
with the petitioner.
52. The learned Family Judge, on consideration of both the issues, has not
found the ground for dissolution of marriage and therefore, dismissed the
suit.
53. 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.
54. Accordingly, the instant appeal fails and is dismissed.
55. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
I agree,
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
17th February, 2026
Saurabh /
A.F.R.
Uploaded on 17.02.2026
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