[Cites 27, Cited by 0]
Jharkhand High Court
Diwakar Kumar Sharma vs Safalta Sharma on 18 February, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 155 of 2022
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Diwakar Kumar Sharma, aged about 37 years, son of
Ramchandra Sharma, r/o Village-Koriyana, P.O.-
Maheshtikri, P.S.-Basantrai, District- Godda, Jharkhand
...... Appellant/petitioner
Versus
Safalta Sharma, aged about 32 years w/o Diwakar Sharma,
r/o Village- Koriyana, P.O.- Maheshtikri, P.S.-Basantrai,
District- Godda, Jharkhand at present C-III,Inder Enclave
Face I Kirari Suleman Nagar Sultanpuri C Block North
Western Delhi- 110086.
...... Opposite party/Respondent
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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. Vinay Kumar Tiwary, Advocate
For the Respondent : Mr. Rakesh Ranjan Advocate
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CAV on 10.02.2026 Pronounced on 18/02/2026
Per Sujit Narayan Prasad, J.:
1. The instant appeal under Section 19(1) of the Family
Court Act, 1984 is directed against the judgment dated
15.10.2022 and Decree dated 03.11.2022 passed by the
learned Principal Judge, Family Court, Godda in Original Suit
No.75 of 2021, whereby and whereunder, the petition filed
under Section 13(1)(i),(i-a),(i-b) of the Hindu Marriage Act,
1955 by the plaintiff (appellant herein) seeking a decree of
divorce against his wife (respondent herein), has been
dismissed.
Factual Matrix
2. The brief facts of the case leading to filing of the
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divorce petition by the appellant/ plaintiff needs to be referred
herein as under:
The appellant/plaintiff and respondent/defendant
are legally married husband and wife and their marriage has
been solemnized in 08.12.2011 at Bhartikitta as per Hindu
rites and customs in a simple ceremony.
The petitioner/husband (appellant herein) and the
respondent/OP/wife lived together in relation of husband-
wife since the date of marriage till 30.04.2021. The petitioner
and the respondent got blessed with two children out of their
wedlock namely, Aryan Raj (son) and Anshika Kumari
(daughter) aged about 9 and 5 years old respectively.
It has been stated that differences arose between the
petitioner and the respondent/OP due to the misconduct and
misdeeds of the respondent/OP. The respondent/OP used to
flee from the house of the petitioner despite the objection
made by the petitioner. It has been alleged that the
respondent/OP developed illicit relationship with Sonu
Sharma alias Sourav Kumar Sharma who used to visit the
petitioner's house regularly. It has further been stated that
the respondent has not made physical relation with the
petitioner for more than a year.
It is alleged that the respondent/OP along with two
children, fled away with Sonu Sharma alias Saurav Sharma
on 0.04.2021 after taking all her ornaments and petitioner's
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golden chain and ring. The respondent also took Rs. 60,000/-
kept by the petitioner for which Basantrai P.S. Case no.
34/2021 state Vrs- Sonu Sharma alias Saurav Sharma has
been registered u/s-364, 379, 120(B)/34 of the I.P.C.
Thereafter being aggrieved with the conduct of
respondent-wife, the appellant-husband had preferred a suit
being Original Suit No. 75 of 2021 before the learned Family
Court Godda.
3. Thereafter notice was issued on due address through
Nazarat as well as through Registered Post and thereafter
publication/advertisement of said notice in the local daily
Hindi newspaper was made for appearance of
respondent/OP's/defendant/wife, but she did not appear.
Therefore, vide order dated 20.06.2022 the suit has been
ordered to be proceeded ex-parte (in absence of defendant).
4. Based upon the pleading, the learned Family Court
altogether has framed six issues which are as follows:
"I. Whether the Suit as framed is maintainable?
II. Whether the plaintiff has valid Cause of Action for the
suit?
III. Whether the defendant/Opposite Party-wife, after her
solemnization of marriage with plaintiff/petitioner-
Husband, had sexual intercourse with any person other
than plaintiff and thus guilty of extra marital sexual
intercourse or ADULTEROUS ACT Under section 13 (1)(i)
of Hindu Marriage Act, 1955?
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IV. Whether the defendant/Opposite Party-wife, after her
solemnization of marriage with plaintiff/petitioner, treated
the plaintiff-husband with CRUELTY under section 13 (1)
(i-a) of Hindu Marriage Act, 1955?
(V) Whether defendant/opposite Party-wife has deserted
the plaintiff/petitioner-husband for a continuous period of
not less than two years immediately preceding the
presentation of this petition, and thus committed
"DESERTION" of her husband (plaintiff/petitioner) under
section 13 (1) (i-b) of Hindu Marriage Act, 1955?
VI. Whether the plaintiff/petitioner-husband Diwakar
Kumar Sharma is entitled for relief of "Dissolution of his
Marriage with defendant/opposite party-wife Safalta
Sharma." by passing the Decree of Divorce under section
13 (1)(i) and/or sec 13 (1) (i-a) and/or sec 13 (1) (i-b) of
Hindu Marriage Act, 1955 and any other relief or reliefs?"
5. The suit has been filed on the ground of adultery,
cruelty, and desertion but the issues could not be proved and
accordingly, the prayer for dissolution of marriage has been
dismissed by the learned Family Court which is the subject
matter of the present appeal.
Submissions advanced by the learned counsel appearing
for the appellant:
6. Learned counsel appearing for the appellant-husband has
submitted that the Learned Family Court has failed to
appreciate that the appellant has produced credible evidence
which are sufficient to establish his case and the appellant is
entitled for grant of decree of divorce on ground of adulterous
act of respondent wife.
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7. Further, it has been submitted that the findings
recorded by the learned Trial Court while answering issue
no.(iii) adultery, and (iv)(cruelty) are perverse and based on
mere presumption, therefore, the same will not stand in the
eye of law.
8. Submission has also been made that the learned
Court below also failed to appreciate that the appellant has
successfully substantiated the allegation that the respondent
has extramarital affairs and, therefore, the petitioner /
appellant is entitled for grant of decree of divorce. But that
aspect of the matter has not been taken into consideration by
the learned Family Court.
9. It has been contended on behalf of the appellant that
the factual aspect which was available before the learned
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.
10. Learned counsel for the appellant has submitted that
the specific pleadings of the plaintiff/ appellant to the effect
that the respondent wife has eloped with another person on
30.04.2021 even though the aforesaid fact has not been
properly appreciated by the learned Family Court.
11. He has further submitted that the learned court
committed an error in observing that the appellant could not
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prove any act of cruelty on the part of respondent No.1 either
in his plaint or in his evidence adduced on his behalf. Such
observation/finding is completely perverse as would be
evident from a bare perusal of the plaint as well as evidence
of PWs who have categorically stating that the respondent
/OP/wife had adulterous relationship but such fact has
totally been ignored by the learned court.
12. The learned court further failed to take note of the
fact that the relationship between the parties had deteriorated
to such an extent that it has become impossible for appellant
to live with the respondent wife but the same has not been
properly taken into consideration by the learned Family
Court.
13. Learned counsel for the appellant has submitted that
such categorical statements on the part of different PWs
clearly proves factum of cruelty as well as the factum of
adultery.
14. Learned counsel for the appellant, based upon the
aforesaid grounds, has submitted that the judgment
impugned suffers from perversity, as such, not sustainable in
the eyes of law.
Submissions advanced by the learned counsel appearing
for the respondent:
15. Learned counsel for the respondent-wife, defending
the impugned order, has submitted that the appellant has
sought divorce on the ground that the behaviour of
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respondent-wife towards the appellant and his family
members is torturous and she has extramarital affairs and,
therefore, the appellant cannot reasonably be expected to live
with the respondent but the learned Family Court, after taking
into consideration the evidence, has held that the appellant-
husband has not succeeded to prove and establish the ground
of cruelty as also failed to prove that the respondent had any
illicit relation and has rightly dismissed the suit.
16. It has been contended that allegation against
respondent as to her illicit relation is also based on mere
suspicion of the appellant because except the generalized
statement made about illicit relation of respondent/wife, the
appellant has not alleged/claimed that he has ever seen any
specific incident of the adulterous/sexual act, therefore the
finding of learned Family court is absolutely correct based
upon the evidences led by the appellant/husband.
17. Learned counsel for the respondent has further
submitted that learned trial court has rightly held that the
appellant is not entitled for the decree of divorce on the
ground of cruelty, adultery and desertion because the
appellant has miserably failed to prove his case even to the
extent of preponderance of probabilities.
18. Learned counsel for the respondent-wife on the
aforesaid grounds has submitted that the impugned judgment
requires no interference by this Court.
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Analysis:
19. We have heard the learned counsels appearing for the
parties, gone through the Trial Court Records, as also the
impugned judgment, the testimonies of the witnesses and the
documents exhibited therein.
20. This Court, before looking into the legality and
propriety of the impugned order, requires to refer the
testimonies of the witnesses, as available on record.
21. The appellant, in support of his case, has adduced
four witnesses including himself. The relevant portion of the
testimonies of the witnesses are mentioned as under:-
P.W.-1 Diwakar Kumar Sharma (petitioner/appellant
himself) has stated in his affidavited examination-in-chief
that the O.P. is the wife of the petitioner, she used to run
away from the house. The O.P. has an illicit relation with
one Sonu Sharma alias Sourav Kumar Sharma who used
to frequently visit the house of the petitioner. The O.P.
stopped making physical relation with the petitioner and
thus deprived petitioner of his marital right. On
30.04.2021, O.P. Safalta Sharma accompanied with her
children fled away with her lover Sonu Sharma taking
away all her jewelry and also golden chain, ring of the
petitioner and also cash Rs. 60,000/- of the petitioner.
O.P. treated the petitioner with cruelty by her cruel
behaviour and she had made illicit relation with her lover.
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In court question he has stated that defendant/OP
is his wife. Their, marriage has been solemnized on
08.12.2011 as per Hindu customary rites and ceremonies.
They (petitioner and OP) lived as husband and wife
properly from year 2011 to 2019 and they got blessed with
two children out of their wedlock. Thereafter since 2019
her behaviour changed and he found that she used to talk
on phone with someone. He checked record of her call
details and also overheard her talking on phone and then
he found that his wife(OP) used to talk offensive and
obscene things with another boy named Sonu Sharma
alias Saurav Kumar Sharma, who is in his relation and
who used to frequently visit his house.
He had further deposed that his wife stopped
making physical relation with him after year 2019. On
30.04.2021 while he had gone out of his house in
connection with his work as journalist and at that time,
his Parents were in the house but they were sick being
infected with corona virus and thus they were staying in
isolation. He had left house on that day at 9:30 AM in
morning and when he returned his house at around 12:30
PM, he found that his wife (OP) and children were not
present at home, all the gate and doors of house were open,
TV and fans were on and house-hold articles were missing.
His parents could not say anything as they were confined
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in the room due to illness. But when inquired from the
neighbours then they told him that his wife fled away with
Sonu Sharma along with his children. When he tried to
contact his wife and children on their phone but their
phone found switched off.
Thereafter his wife never contacted him and since
30.04.2021 his wife (OP) along with his children left
him/abandoned him forever. As his wife used to have
obscene talks with Sonu Shama and she fled with said
Sonu Sharma not to ever return back, hence he has reason
to believe that she has illicit relation with Sonu Sharma.
That due to conduct of OP as she left him not alone but
also took away his children hence, he has suffered much
mental pain and agony. The OP has not filed any case
against him. He does not know where his wife/OP resides
right now.
P.W.-2 Bal Kishore Thakur has stated in his affidavited
examination-in-chief dated 19.07.2022 likewise PW-1. He
stated that OP Safalta Sharma had illicit relationship with
one Sonu Kumar Sharma @ Saurav Kumar Sharma s/o
Late Sushil Sharma and said Sonu Sharma used to visit
his house regularly, and it was known and discussed
everywhere in the village. That OP stopped making any
physical relation with petitioner. The witness further
stated that due to illicit relation and bad behavior of OP,
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the petitioner used to remain under mental stress. That on
30.04.2021, the OP fled away with Sonu Sharma which
was witnesses by villagers.
In court question he has stated that petitioner is his
co-villager hence he is acquainted with the fact of the case.
Petitioner's marriage has been solemnized with the O.P. in
the year 2011 as per Hindu rites and customs. After
marriage she went to her sasural and she lived there for
two-three years properly. Thereafter their relation got sour
and they started fighting/quarrelling with each other. She
used to frequently go to her maike and used to return to
her sasural. However, for last one year she has gone to her
maike and has not returned to her sasural. There are two
children born out of wedlock of petitioner with OP. He
doesn't know as to why O.P./Safalta Sharma does not
want to live with the petitioner. He does not know as to
why they quarrelled. On 30.04.2021 O.P. went to her
'maike'. The witness claims that he had witnessed her
going on that day with Sonu, relative of hers. He came to
know from the petitioner and his family members that she
went to her maike taking the jewelry and money of the
petitioner. In para 14 he has stated that he has not heard
about any illicit relation of OP with anyone. In para 16 the
witness states that his house is just two three houses
apart from petitioner's house and whatever happens in
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petitioner house he can hear.
P.W.-3 Pradeep Kumar Sharma has stated in his
affidavited examination-in-chief dated 29.08.2022 that he
knows both the parties. Further, stated likewise as in chief
examination of PW-1 and PW-2. In para 1 he has stated
that Safalta Sharma has illicit relation with one Sonu
Kumar Sharma @ Saurav Kumar Sharma who used to visit
his house. That due to her illicit relation with Sonu
Sharma, OP used to defy/disobey petitioner and had also
stopped making any physical relation with him. The
behavior and conduct of OP perpetrated mental and
physical cruelty to petitioner. That on 30.04.2021 Sonu
Sharma took away OP with him which was witnessed by
villagers who gave information.
On court question he has stated that petitioner is his
own brother; that Diwakar Sharma's marriage has been
solemnized with the O.P./Safalta Sharma on 08.11.2011
as per Hindu customary rites and ceremonies. After
marriage she went to her 'sasural' but the quarrel between
them erupted from the very beginning. O.P.'s behaviour
was very much different as she was brought up in Delhi
and she used to talk with different boys on phone. Many
strangers used to come to meet her. She used to talk to
different boys on phone. On 30.04.2021 O.P. fled away
with Sonu Sharma along with her children, at that time
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petitioner had been out in connection with his work and
his old aged father-mother were lying sick and were
confined into their room. When at around 12 noon,
petitioner came back, he found that TVs, fans etc were on
and gate is left open and OP with children had not been
there. Then on asking, the neighbours told them that at
11:30 PM two boys had come by red colored motorcycle
and they were accompanied with another two boys on
another motorcycle, of them one boy was same who used
to come to his house often. That OP has illicit relation with
Sonu Sharma and that is why she fled away with him and
since then her whereabouts is not known. That a case has
been lodged against said Sonu Sharma.
P.W.-4 Ram Chandra Sharma has stated in his affidavited
examination-in-chief stated likewise PW-1, PW-2 & PW-3
and added that petitioner is his son and OP is his
daughter-in-law. That one Sonu Sharma @ Saurav Kumar
Sharma used to come to petitioner's house with whom OP
had established illicit relation. That due to her illicit
relation OP started ignoring petitioner and also stopped
making physical relation with him, causing mental agony
to petitioner. That on 30.04.2022 Sonu Kumar Sharma @
Saurabh took away OP which was witnessed by villagers
who informed. That OP has perpetrated mental and
physical cruelty upon petitioner.
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In court question he has stated that he is the father
of the petitioner, O.P./Safalta Sharma is his daughter-in-
law (Putohu). Their marriage has been solemnized as per
Hindu rites and customs. After marriage both lived at his
house as husband and wife for two-three years properly
and out of their wedlock they got blessed with two
children. After 2-3 years, their relation started souring and
both used to quarrel and O.P. leaving sasural went to her
maike. The petitioner went to her maike and brought her
back. Thereafter she used to frequently go to her maike
and lastly on 30.04.2021 she went to her maike and since
then she never came back to her sasural. On 30.04.2021
when O.P. was in her sasural, O.P. called Sonu Sharma on
his phone and without any information she left sasural
and went with him along with her children. When
Deewakar came back from his work, he found entire house
open and no trace of OP and children there, then he
inquired from his neighbours who told him that she has
left with Sonu Sharma by red coloured motorcycle. OP
used to tell that Sonu Sharma is her cousin but he does
not know exact relation. Since 30.04.2021 she never came
back, they do not know where does she live, that is why
they did not go to her maike for bringing her back.
22. The learned Family Judge has gone into the
interpretation of the word "cruelty" and adultery and
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assessing the same from the material available on record as
also the submission made in the pleading, i.e., plaint and has
found that the element of cruelty, adultery and desertion has
not been established. The said finding of the learned Family
Court has been assailed herein by way of filing the instant
appeal.
23. Herein since appellate jurisdiction has been invoked
therefore, before entering into merit of the case, at this
juncture it would be purposeful to discuss the appellate
jurisdiction of the High Court.
It needs to refer herein that under section 7 of the Family
Courts Act, the Family Court shall have and exercise all the
jurisdiction exercisable by any District Court or any Sub-
ordinate Civil Court under any law for the time being in force
in respect of suits and proceedings of the nature which are
described in the explanation to section 7(1).
24. Sub-section (1) to section 19 of the Family Courts Act
provides that an appeal shall lie from every judgment or order
not being an interlocutory order of a Family Court to the High
Court "both on facts and on law". Therefore, section 19 of the
Family Courts Act is parallel to section 96 of the Code of Civil
Procedure, the scope of which has been dealt with by the
Hon'ble Apex Court in series of judgments.
25. The law is well settled that the High Court in a First
Appeal can examine every question of law and fact which
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arises in the facts of the case and has powers to affirm, reverse
or modify the judgment under question. In "Jagdish Singh
v. Madhuri Devi" (2008) 10 SCC 497 the Hon'ble Supreme
Court observed that it is lawful for the High Court acting as
the First Appellate Court to enter into not only questions of
law but questions of fact as well and the appellate Court
therefore can reappraise, reappreciate and review the entire
evidence and can come to its own conclusion. For ready
reference the relevant paragraph of the said judgment is being
quoted as under:
25. It is no doubt true that the High Court was
exercising power as the first appellate court and hence
it was open to the Court to enter into not only questions
of law but questions of fact as well. It is settled law that
an appeal is a continuation of suit. An appeal thus is a
rehearing of the main matter and the appellate court
can reappraise, reappreciate and review the entire
evidence--oral as well as documentary--and can come
to its own conclusion.
26. Further, it requires to refer herein that under section
3 of the Indian Evidence Act a fact is said to be proved when
the Court either believes it to exist or considers its existence
so probable that a prudent man under the circumstances
would proceed on the supposition that such fact really exists.
Therefore, the normal rule of preponderance of probability
is the rule which governs the civil proceedings but herein since
grave allegation of extra-marital affair has been alleged
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therefore cogent evidence is required to be laid by the
plaintiff/appellant.
27. The expression "preponderance of probability" is not
capable of exact definition nor can there be any strait-jacket
formula or a weighing machine to find out which side the
balance is tilted. The preponderance of probability would
imply a positive element about possibility of existence of a
fact. This means a higher degree of probability of happening
of something and existence of a fact.
28. In "A. Jayachandra v. Aneel Kaur" (2005) 2 SCC
22 the Hon'ble Apex Court has observed that the concept, a
proof beyond the shadow of doubt, is to be applied to criminal
trials and not to civil matters and certainly not to matters of
such delicate personal relationship as those of husband and
wife. Therefore, the Court has to see what are the probabilities
in the case and legal cruelty has to be found out, not merely
as a matter of fact, but as the effect on the mind of the
complainant spouse caused by the acts or omissions of the
other.
29. Since this Court are exercising the power of appeal
as referred hereinabove and as per the settled position of law
which require the consideration of the appellate Court is that
the order/judgment passed by the appropriate Forum, if
suffers from perversity, the same is to be taken as a ground
for its reversal.
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30. It needs to refer herein that 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 so 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
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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.
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5. Stroud's Judicial Dictionary of Words &
Phrases, 4th Edn.
"Perverse. --A perverse verdict may probably be
defined as one that is not only against the weight of
evidence but is altogether against the evidence.""
31. Thus, from the aforesaid it is evident that if any order
made in conscious violation of pleading and law then it will
come under the purview of perverse order. Further "perverse
verdict" may probably be defined as one that is not only
against the weight of evidence but is altogether against the
evidence.
32. In the backdrop of the aforesaid settled position of
law this Court is now adverting to examine that whether the
prayer of the appellant for dissolution of marriage is fit to be
allowed on the ground of adultery, cruelty and desertion
alleged to be committed by the respondent wife.
Issue of adultery
33. Since the allegation of extramarital affair has also
been levelled by the plaintiff/appellant therefore in the
aforesaid context, it needs to refer herein that Section 13(1)(i)
of the Hindu Marriage Act, 1955, allows for divorce if the other
spouse has, after the marriage, had voluntary sexual
intercourse with anyone other than their spouse and
providing a ground for divorce for either husband or wife. This
is one of several grounds under Section 13(1) for dissolving a
Hindu marriage, alongside cruelty (13(1) (ia)), desertion (13(1)
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(ib)), conversion, mental disorder, and venereal disease. For
ready reference the said section is being quoted herein which
reads as under:
"13. Divorce.--(1) Any marriage solemnised, whether
before or after the commencement of this Act, may, on a
petition presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that the
other party--
[(i) has, after the solemnisation of the marriage, had
voluntary sexual intercourse with any person other than
his or her spouse; or"
34. It needs to refer herein that the petition for
dissolution of marriage can lie at the instance of husband or
wife, even if respondent has committed even a single act of
adultery [ if he or she has voluntary sexual intercourse with
any person other than his or her spouse).
35. It is settled proposition of law that a proceeding
under Hindu Marriage act is not any criminal proceeding
where proof beyond reasonable doubt is required rather here
"preponderance of probability" is enough. However, the charge
of adultery is a serious charge as it casts aspersion on the
character of spouse and affects his/her reputation in the
society. Therefore, it is established proposition of law, that not
only the pleading in respect of charge of adultery should be
specific, it should also be established in all probabilities.
36. It needs to refer herein that the Hon'ble Apex Court,
while striking down the offence of adultery in Joseph
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Shine v. Union of India, (2019) 3 SCC 39 also
acknowledged how the notion of marriage had changed since
the enactment the Penal Code in 1860:
"102. The background in which this provision was
enacted now needs to be stated. In 1860, when the Penal
Code was enacted, the vast majority of the population in
this country, namely, Hindus, had no law of divorce as
marriage was considered to be a sacrament. Equally, a
Hindu man could marry any number of women until
1955. ...
Two of the fundamental props or bases of this archaic
law have since gone. Post 1955-1956, with the advent of
the "Hindu Code", so to speak, a Hindu man can marry
only one wife; and adultery has been made a ground for
divorce in Hindu Law.
37. It is considered view of this Court that since adultery
is a very grave allegation in the context of matrimonial life,
therefore, a very high degree or standard of proof is required
and the offence of adultery should be proved beyond
reasonable doubt. Further a husband or wife can ask for
divorce only if at the time of filing the suit, the other party 'is
in adulterous relationship and merely a bald allegation
without any cogent evidence of extra marital intercourse is not
sufficient to dissolve the marriage.
38. In the instant case the allegations specific to the
ground of alleged Adultery has been alleged by the appellant
and it has been alleged that OP/his wife developed illicit
relationship with Sonu Sharma alias Sourav Kumar Sharma
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who used to visit the petitioner's house regularly. It has
further been alleged that Opposite Party/ wife along with her
children fled away with said Sonu Sharma @ Saurabh Sharma
on 30.04.2021 taking away all her ornaments as well the gold
chain and ring as well as cash Rs. 60,000/- of the appellant.
It has been stated by the appellant that he has lodged FIR
against Sonu Sharma after incident of alleged elopement of
his wife with Sonu Sharma leading to registration of Basantrai
PS Case No. 34 of 2021.
39. It is evident from the statement of the appellant that
his allegation against OP as to her illicit relation is based on
his suspicion as she (respondent wife) had stopped making
any physical relation with appellant for last one year.
40. From the impugned order it is evident that even
petitioner/appellant's allegation of his having seen and
overheard her talking with Sonu objectionable things and
having checked her call details has not been stated by him in
his chief-examination or anywhere in his petition and only in
examination by learned Family court for the first time
petitioner as PW1 has claimed that he overheard the
objectionable talks between respondent/wife and Sonu.
However, petitioner/appellant has neither stated/narrated
with specificity as to when he heard and what they were
talking, nor produced the said call details even.
41. From the statement of the appellant, it is apparent
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that the generalized statement has been made about illicit
relation of respondent wife and further the
petitioner/appellant has not alleged that he has ever seen any
specific incident of respondent adulterous/sexual act
confirming or supporting his suspicion that respondent being
in adulterous relationship with Sonu Sharma or anyone else.
Thus, it appears that the allegation made in petition gives
impression that whatever he has alleged is based on his
suspicion and surmises.
42. As we discussed hereinabove in the preceding
paragraph that it is established proposition of law, that not
only the pleading in respect of charge of adultery should be
specific and the circumstances must be such as to lead to
inference, as a necessary conclusion and the proof required to
prove adultery must carry a high degree of probability.
43. Further, it is evident from record that altogether, 3
witnesses except the appellant, have been examined on behalf
of the petitioner/appellant before the learned Family Court
and the statement of all the said witnesses have been referred
hereinabove in the preceding paragraphs.
44. The petitioner's brother namely Pradeep Kumar
Sharma examined as PW3., in his chief-examination, he has
just made generalized statement that OP developed illicit
relation with Sonu Sharma who used to regularly sit his house
and this has become common talk in village. But in his
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examination by Family court, he has stated that he believes
that she has illicit relation with Sonu. This witness has
himself nowhere said that he has either seen them in any
adulterous relation or any instance suggestive of their being
in such relation. Nor he has himself seen with whom the OP
left her 'sasural'. He stated that neighbour Balkishore Thakur
and others told them that she has eloped with Sonu Sharma.
45. Likewise, PW4 is father of petitioner who has
conceded that there has not been good relation rather relation
has soured between them hence she used to leave her sasural
many times and finally 30.04.2021. The question arises
herein that being father this witness always used to live at
house where allegedly Sonu used to come but he has not
stated any specific incident suggesting adulterous
relationship between respondent and the said Sonu.
46. Thus, even from the statement of the father and
brother (P.W.3 and 4) of the appellant the alleged act of
adultery of the respondent/wife has not found support. Thus,
from testimonies of all these witnesses show that none of the
witnesses have any personal knowledge with certainty about
illicit relation of respondent wife with Sonu or anyone else.
Further the PW2 the neighbour of the appellant and his house
is situated so closely near house of petitioner that anything
happening there is audible, has clearly stated that he has
never heard about any illicit relation of respondent/wife.
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47. Thus, on the basis of the discussion made
hereinabove, this Court is of the considered view that
appellant has miserably failed to prove the ground of adultery
against his wife-the respondent under section 13 (1) (i) of
Hindu Marriage Act.
48. It is evident from the impugned judgment that since
the learned Family Court while negating the claim of the
petitioner/ appellant has also taken into consideration the
aforesaid fact which would be evident from the various
paragraphs of the impugned judgment, for ready reference the
said relevant paragraphs are being quoted as under:
"In short, it may be concluded that the petitioner has alleged
the circumstances which led him to his suspicion and
surmises in his doubtful mind as to adulterous behaviour of
OP but he has miserably failed to prove those
circumstances. The inference drawn by him is not based on
any cogent and acceptable evidence. The charge of adultery
should be specific, it should be established in all
probabilities and the evidences required to prove adultery
must carry a high degree of probability.
Having given scrupulous consideration to all the above facts
and findings, this court is led to conclude that plaintiff
(Diwakar Kumar Sharma) has miserable failed to prove the
ground of adultery against his wife-the opposite Party
(Safalta Sharma) under section 13 (1) (i) of Hindu Marriage
Act."
49. Thus, from the aforesaid, it is evident that the learned
Family Court in his conclusive finding has observed that the
petitioner/appellant has alleged the circumstances which led
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him to his suspicion and surmises in his doubtful mind as to
adulterous behaviour of respondent wife but he has failed to
prove those circumstances and the inference drawn by him is
not based on any cogent and acceptable evidence.
50. Thus, on the basis of the discussion made
hereinabove, it is considered view of this Court that the
finding of the learned Family Court on the issue of alleged
adulterous act of the respondent/wife cannot be said to be
suffer from any perversity.
Issue of cruelty
51. Now this court is adverting to the issue of cruelty. It
needs to refer herein that 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.
52. 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.
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53. 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."
54. 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."
55. 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.
56. 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
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"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".
57. 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.
58. 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.
59. Further in the case of Vishwanath Agrawal v.
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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.
26. 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."
27. 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.
6. 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
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Reid observed in Gollins v. Gollins : (All ER p. 972 G-
H)
'... 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.'"
60. 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, 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.
61. 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
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with the other spouse. It must be more serious than the
ordinary wear and tear of married life.
62. 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
temperamental disharmony. Such disharmony or
incompatibility is not cruelty and will not furnish a cause for
the dissolution of marriage.
63. Herein allegations of cruelty have been specifically
made by plaintiff/appellant wherein it has been stated that
the differences arose between him and respondent (wife) due
to misconduct and misdeed of the respondent as respondent
used to flee from appellant's house despite his objection.
Second allegation is that respondent had stopped making any
physical relation with him depriving him of his right.
64. Now coming to allegation that respondent/wife used
to commit misdeed and tortured the appellant by her
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misconduct. But from testimony of the appellant/petitioner or
his witnesses it is evident that they have failed to state or
prove precisely what sort of misconduct or misdeed the
respondent was indulged into. None of the witness nor the
appellant either in his petition or in his testimony has
specified it.
65. However, all the witnesses have stated that after few
years since marriage the relation of appellant and wife started
getting bitter and they used to be quarrel between them but
from the testimony it is not clear that quarrel or bitterness of
relation was due to any misdeed or misconduct on part of
respondent/wife. So far allegation that respondent stopped
physical relation and deprived petitioner of his conjugal right
is concerned, there is no any substantiating/cogent evidence
direct or circumstantial on this point.
66. Thus, on the basis of the pleading and evidence on
the record, this Court is of the view that the ground of cruelty
has not been substantiated by the appellant and further it
has also not been proved that the extent of cruelty is so much
that it appears absolutely not possible and safe for the
petitioner-husband to live together with respondent-wife and
continue with their married life.
67. Thus on the basis of the discussion made
hereinabove this Court is of the view that the appellant has
failed to substantiate the commission of alleged cruelty of
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respondent upon him and since the learned Family Court
while negating the claim of cruelty has duly appreciated the
evidences brought on record, therefore the finding of the
learned Court on the alleged act of cruelty, is not perverse.
Issue of desertion
68. So far desertion is concerned it needs to refer herein
that 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
willful neglect of the petitioner by the other party to the
marriage, and its grammatical variations and cognate
expressions shall be construed accordingly."
69. 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 wishes of such party, and includes the willful
neglect of the petitioner by the other party to the marriage, and
its grammatical variations and cognate expressions shall be
construed accordingly.
70. Rayden on Divorce, which is a standard work on the
subject at p. 128 (6th Edn.), has summarised the case-law on
the subject in these terms:
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"Desertion is the separation of one spouse from the other,
with an intention on the part of the deserting spouse of
bringing cohabitation permanently to an end without
reasonable cause and without the consent of the other
spouse; but the physical act of departure by one spouse
does not necessarily make that spouse the deserting party."
71. 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."
72. 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.
73. 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,
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where the offence appears as a cross-charge, of the answer.
74. 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.
75. 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.
76. 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.
77. 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
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v. Meena, AIR 1964 SC 40 which has been consistently
followed in several decisions of this Court.
78. The law consistently has been laid down by the 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.
79. Here in this case, it has been stated by the appellant
that on 30th April 2021 the respondent left his house without
his consent and since then she has no relationship with him.
The plaintiff/petitioner in his testimony as PW1 as well as all
his witnesses stated that on 30.04.2021 respondent left her
sasural and since then she never came back, meaning thereby
until 30.04.2021 respondent has lived with petitioner at her
sasural.
80. It has come on record that the appellant has preferred
the suit for dissolution of marriage before the learned Family
Court on 07.06.2021 which is within two years from the
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alleged date of cause of action i.e.30.04.2021, thus the
"factum of separation" for at least two years preceding
presentation of the case has not been satisfied as on date of
presentation of the said suit before the learned Family Court
i.e. on 07.06.2021 the parties had not lived separate for
continuous 2 years rather for only two months which is
contrary to the statutory stipulated time period.
81. From the impugned order it is evident that the learned
Family Court while not accepting the claim of desertion as one
of the ground of dissolution of marriage, has taken into
consideration the aforesaid statutory period, therefore, it is
considered view of this Court that finding of the learned Family
Court on the issue of desertion requires no interference.
82. This Court, based upon the aforesaid discussions is
of considered view that the issue of cruelty and adultery a as
has been alleged by the appellant-husband against his wife
could not be proved because no cogent evidence to that effect
has been produced by the appellant and, as such, this Court
has no reason to take different view that has been taken by
the learned Family Court observing that the petitioner has not
been able to prove the adulterous act of respondent wife and
neither prove that respondent subjected him with cruelty to
the extent required by law.
83. On the perusal of the impugned judgment, it is
considered view of this court that learned Family Court after
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due deliberation of factual aspect as well as evidence led by
both the parties has recorded its finding, therefore, the
contention of learned counsel for the appellant that impugned
judgment is suffering from perversity, is not fit to be accepted,
hence rejected.
84. This Court, on the basis of discussions made
hereinabove, is of the view that the judgment dated
15.10.2022 and Decree dated 03.11.2022 passed by the
learned Principal Judge, Family Court, Godda whereby and
whereunder Original Suit No.75 of 2021 filed by the appellant-
husband under Section 13(1)(i)(i-a)(i-b) of the Hindu Marriage
Act, 1955 for a decree of divorce has been dismissed, requires
no interference by this Court.
85. Accordingly, the instant appeal fails and is
dismissed.
86. Pending interlocutory application, if any, also stands
disposed of.
(Sujit Narayan Prasad, J.)
I agree,
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Date : 18/02/2026
/A.F.R.
Birendra
Uploaded on 18.02.2026
