[Cites 30, Cited by 0]
Jharkhand High Court
Smt. Champa Kumari @ Sampa vs Saheb Mahakud on 5 February, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
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F.A. No.142 of 2024
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Smt. Champa Kumari @ Sampa, aged about 30 years, wife of Sri Saheb
Mahakud, daughter of Sri Hariya Pradhan, aged about 30 years, resident
of 41, Morakathi Basti, D-Block, PO Luabasa, PS Birsanagar, Town-
Jamshedpur, Dist.-East Singhbhum, Jharkhand, Permanent resident of
Village-Bada Sijulata, PO B.Kutung, PS Rajnagar, Dist. Seraikella-
Kharsawan, Jharkhand. ...... Respondent/Appellant
Versus
Saheb Mahakud, son of Sri Ushakar Mahakud, aged about 42 years, R/o
village Bara Sijulata, PO B.Kutung, PS Rajnagar, Distt. Seraikella-
Kharsawan, Jharkhand. ......Plaintiff/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(s) :Mr. Anurag Kashyap, Advocate
For the Respondent(s) : Mr. P.A.S. Pati, Advocate
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CAV ON: 27.01.2026 PRONOUNCED ON:05. 02.2026
Per Sujit Narayan Prasad, J.
1. The instant appeal has been filed on behalf of the appellant under Section
19(1) of the Family Courts Act, 1984 against the order/judgment dated
30.03.2024 [decree signed on 08.04.2024] passed by the learned Principal
Judge, Family Court, Seraikella-Kharsawan, in Original Suit No. 54 of
2021, whereby and whereunder, the said Suit filed by the respondent-
husbandwas allowed on contest but without cost, holding that marriage of
the petitioner (respondent herein)Saheb Mahakud with the respondent
Smt. Champa Kumari (Appellant herein) solemnized on 28.4.2019 is
hereby dissolved.
2. The brief facts of the case, which required to be enumerated, needs to be
referred as under:
3. The marriage between the parties was solemnized on 28.04.2019as per
Hindu rites and customs at the parent's house of the
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respondent(appellant herein) and the parties started residing together at
the house of the petitioner (respondent herein).
4. It is stated that marriage was solemnized without any demand of dowry
and after consummation of marriage, soon after it was realized by the
petitioner/respondent/husband that respondent/appellant wife is not
very much interested in staying in her matrimonial home but to stay at
her parent's house to lead a luxurious life and for this reason her
behaviour became very rude with the petitioner and his family members
and even refused to cohabit.
5. Further she started making fight and quarrel, abusing entire family
members with filthy languages and the respondent/wife in order to
pressurize regularly insists the applicant to take a house on rent at
Baridih in Jamshedpur and even after efforts to convinced the
respondent about his inability to arrange a house on rent due to his
meager income as driver of an auto, the respondent did not agree and
continued her irrational behaviour and sometimes used to hit her head
on wall with intend to injure and putting blame upon the applicant and
his family members with threatening to implicate in false criminal
cases.
6. This fact has also been stated that considering the aforesaid conduct of
the respondent the petitioner made a written complaint to Mukhiya and
Gram Pradhan of village Bara Sijulata on 04.09.19 where mother and
relative of the respondent came and in the panchayati respondent
assured not to repeat her previous behaviour but went to her maike with
her parents and returned after 3 months on several requests of the
petitioner but again her similar conduct and behaviour continued.
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7. It has further been stated that on 14.10.2020 again a panchayati was
held in presence of members of both the sides and again even after
assurance given by respondent/wife, she after coming from her maike
did not amend her behaviour. On 16.01.2020 respondent/wife again
made quarrel for arranging rented house at Jamshedpur near her parents
house but on refusal she called her parents and went to Rajnagar P.S.
giving threatening lodged complaint against applicant and his family
members and on her complain they were called upon at Rajnagar P.S.
on 17.01.2020 where police did not find the statement of respondent
true and her complaint was not accepted.
8. It is further case that several attempts were made through Rajnagar
police to bring the respondent back in his house, but she refused and
finally on 08.02.2020 when the applicant/husbandwas in house of
respondent, he was abused by the respondent and her mother and also
beaten by her brother with fist and blows and it was told that
applicant/husband has to take rented house at Baridih, since the
respondent will not live in village at matrimonial house.
9. It has also been stated that mother of the respondent demanded rupees 5
lac and if the applicant/husband wants divorce he will have to pay the
said money and mentioning all these facts the applicant made a written
application to D.C., S.P. Seraikella on 24.02.2020, upon which report
was submitted by O/C Rajnagar finding the complaint made by
petitioner as true.
10. After such report again request was made with respondent and her
family members to send her back but they again made a frivolous
complaint to O/c Rajnagar on 26.11.2020 which was refused to be
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registered and on the same day complaint was also made in Mahila
Thana Sakchi, which was sent for mediation but it failed.
11. It has been stated that having failed in sustaining their claim and
complaint before police, a false criminal complaint against the
applicant/husband and his mother and other relatives bearing C/1 Case
No. 544 of 2021 u/s 498A, 321, 323, 307/34 and 3 & 4 of the D.P. Act
was filed which is now pending in the Court of J.M. 1stClass at
Jamshedpur.
12. In the backdrop of the above allegations of cruelty and desertion from
the conjugal life of the applicant/husband since 17.01.2020, the suit for
dissolution of decree of marriage was filed by the applicant/husband.
13. Accordingly, notice was issued to the respondent (Appellant herein) who
appeared and filed her written statement admitting the factum of marriage
with the petitioner-respondent.
14. Thereafter, altogether five issues have been framed by the learned Family
Judge which are as follows:
(i) Whether the suit is maintainable in its present form?
(ii) Whether the petitioner has got valid cause of action for the suit?
(iii) Whether the petitioner is entitled for a decree of divorce on the
ground of cruelty u/s 13(1)(ia) of the Hindu Marriage Act, 1955?
(iv) Whether the petitioner is entitled for a decree of divorce on the
ground of desertion u/s 13(1)(ib) of the Hindu Marriage Act, 1955?
(v) Whether the petitioner is entitled for any other relief or reliefs?
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15. The evidences have been laid on behalf of both the parties. The petitioner
husband had examined himself as P.W.2 and further on his behalf other
witnesses namely Ushakar Mahakud and Ashwani Kumar Pradhan have
been examined as P.W.1 and P.W.-3 respectively.
16. On behalf of the respondent three witnesses had been examined including
herself as D.W.1 and further mother and aunty of the respondent namely
Bharti Devi and Arti Devi had been examined as D.W.2 and D.W.3
respectively.
17. After appreciation of the evidences, the Principal Judge, Family Court,
Seraikella-Kharsawan vide judgment dated 30.03.2024 has allowed the suit
in favour of husband by holding that the petitioner/husband has proved his
case for divorce on the ground of cruelty against the respondent on the
touchstone of preponderance of probabilities.
18. The appellant-wife being aggrieved and dissatisfied with the impugned
judgment dated 30.03.2024 [decree signed on 08.04.2024] passed in
Original Suit No. 54 of 2021 has filed the instant First Appeal
under Section 19(1) of the Family Courts Act, 1984.
Arguments advanced on behalf of the respondent/appellant-wife:
19. The learned counsel for the respondent-appellant has raised the following
points:
(i) It has been contended on behalf of the appellant that the learned Court
below hadoverlooked the material fact that the respondent herein has not
come to the court with clean hands.The respondent and his family
members are guilty of committing cruelties upon the appellant as after
the marriage, they started harassing the appellant. The respondent wants
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to take advantage of his own wrong. The respondent deliberately and
intentionally left the appellant at her parental home and never came back
to take the appellant to her matrimonial home. The appellant has also
filed complaint before CAW Cell, against the respondent and his family
member.
(ii) The Ld. Family Court overlooked the fact that the Respondent was on
continuous medication, which was concealed by them during the time of
the marriage.Appellant was continuously being subjected to the
harassment and mental cruelty and agony for the dowry. The Family
Court stick to the only fact that no dowry was demanded at the time of the
marriage, and failed to observe that the Appellant was continuously
subjected to humiliation by the hand of the Respondent and his family.
The Learned Family Court erred to consider that as per the allegation the
Appellant demanded to take the property on rent in Baridih, Jamshedpur,
as now she is living separately from the Respondent, she did not reside
there.
(iii) The Ld. Family Court failed to appreciate that the Respondent falsely
alleged that the Appellant used to bang her head against the wall, but the
Respondent failed to give any medical or other document regarding the
same. The complaint filed by the Respondent before the panchayat was
false and frivolous and was filed with the mala-fide intention to defame
and mentally harass the Appellant in front of the whole village.
(iv) The Ld. Family Court erred in consider that the allegations alleged by
the Respondent against the Appellant was not supported by any evidence.
The Respondent always made or tried to make the issue out of the petty
acts of the daily household chaos. It is not wrong to say that the
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Respondent is hyper sensitive person who got offended on everything.
The Respondent intentionally take the house matter in the panchayat just
to defame the Appellant in front of whole village.
(v) The Ld. Principal Judge Family Court while passing the impugned
order dated 30.03.2024, had not considered the material fact that the
appellant has been a brilliantstudent and is a highly educated lady having
a graduation degree, therefore it is beyond impossible to believe that a
woman who is highly qualified and having a meritorious academic record,
was unable to perform her marital obligations as per Ld. Family Court.
The said reason itself is sufficient for setting aside the judgment dated
30.03.2024 passed by the Ld. Family court.
(vi) The Ld. Family Court erred in considering that the marriage between
the Appellant and Respondent is the arrange marriage, solemnized with
the consent of both the parties. Thereafter, it is not wrong to say that the
divorce petition is the result of inferiority complex of the Respondent and
all the complaints were filed with the intention to defame and harass the
Appellant.
(vii) The Ld. Family Court erred in considering that the Respondent
alleged that the Appellant forced the Respondent to live separately from
his parents where as the father of the Respondent, who was examined as
PW-1 during trial stated that "he cannot say anything regarding the
medicine of potency taken by his son as his son does not resides with
him". The Respondent intentionally and knowingly deposed the wrong
and false allegation before the Trial Court. The said reason itself is
sufficient for setting aside the judgment dated 30.03.2024 passed by the
Ld. Family Court. as there are no instances and evidence on record to
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show that the Respondent has ever insisted or forced the Respondent to
take a separate accommodation.
(viii) The Ld. Family Court erred in considering that the Respondent
had relied his submissions on the statement of the PW-3 i.e Ashwani
Kumar Pradhan. The Ld. Trial Court failed to observe that he himself has
deposed that "he is fully aware of the case and conduct of the Appellant"
and thereafter he himself has deposed that "all these facts have been
disclosed by the Respondent to him". The statement of the PW-3 is wholly
based on the hear-say. Ld. Family Court also rely on his hear-say evidence
while passing the impugned judgment dated 30.03.2024. The said reason
itself is sufficient for setting aside the judgment dated 30.03.2024 passed
by the Ld. Family court.
(ix) The Ld. Family Court has passed the order dated 30.03.2024 without
application of mind. It is admitted fact that the marriage between the
parties was solemnized with dowry, but thereafter, the Ld. Family Court
failed to observe the harassment and cruelty faced by the Appellant at the
hands of the Respondent and his family members. It is settled law that
harassment and cruelty occurred in the realm of demand of dowry after
marriage is also an offence under Dowry Prohibition Act. The said reason
itself is sufficient for setting aside the judgment dated 30.03.2024 passed
by the Ld. Family court.
(x) The Ld. Family Court erred in considering that the Respondent
alleged that the Appellant left his company and stay at her maternal home
for long durations which was appreciated by the Ld. Family Court while
passing the impugned judgment dated 30.03.2024 but on the other hand
the Ld. Family Court has failed to appreciate the medical evidences placed
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by the Appellant on record. The Ld. Family Court erred in considering
that the statement of Defendant witness where all of them have deposed
that the Respondent several times beaten the Appellant and threw her out
of matrimonial house and there was constant demand of dowry by the
Respondent and his family members.
(xi) The Ld. Family Court erred in considering the action and behaviour of
the Respondent towards the Appellant and their marriage. It is admitted
fact that both the parties went for the mediation which got failed as
alleged by the Respondent in his petition, but he intentionally conceals the
reason behind that. The said mediation was failed because of the
Respondent as he never appears before the mediator. The conduct of the
Respondent was completely overlooked by the Ld. Family Court.The said
reason itself is sufficient for setting aside the judgment dated 30.03.2024
passed by the Ld. Family court.
(xii) The Ld. Family Court erred in considering the fact that alleged
attempt by the Respondent to bring Appellant back to her matrimonial
home was the time when COVID was at its peak. The country was under
quarantine and it was alleged by the Respondent he was making efforts to
bring Appellant back. The Respondent intentionally make the false
statement before the Ld. Court for which he should be punished
separately. The Ld. Court also failed to appreciate the same. The said
reason itself is sufficient for setting aside the judgment dated 30.03.2024
passed by the Ld. Family court.
(xiii) For that the Respondent made the statement before the Ld.
Family Court that he is paying the maintenance regularly, of which the
slips were also shown during the final argument. The Ld. Family Court
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failed to consider the outstanding amount and failed to observe that, that
was the tactic of the Respondent by showing the limited slips as evidence
only.The Appellant was continuously lead her life under the constant
threat. The phone calls made by the aunt of the Appellant to the father of
the Respondent to sort the thing out between the Appellant and
Respondent of which the father of the Respondent never paid any heed.
(xiv) Further, it has been submitted that the findings recorded by the
learned Trial Court while answering issue no.(III) (cruelty) is perverse and
based on mere presumption, therefore, the same will not stand in the eye
of law.
Arguments advanced on behalf of the petitioner/respondent-husband:
20. Per contra, Mr. P.A.S. Pati, the learned counsel appearing on behalf of the
respondent-husband, while defending the impugned judgment, has
submitted that there is no error in the impugned judgment. The learned
counsel has raised the following points:
(i) The learned Family Judge has considered the issue of cruelty and
having come to the conclusion that the petitioner-husband (respondent
herein) has succeeded to make out a case for decree of divorce against the
respondent/wife (appellant herein) on the ground of cruelty, has allowed
the petition.
(ii) It has been submitted that the appellant-wife used to pressurize the
respondent to live separate from his parents to which he was not agreed
then she started to quarrel with him and also started to misbehave with
parents of the respondent.
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(iii) It has further been contended that the she has filed frivolous complaint
before Rajnagar P.S. and even after direction and coming to the
matrimonial home, her behaviour did not change and she remained
adamant for her demand of separate residence and after going to maike,
she did not return.
(iv) The mother of the respondent demanded Rs. 5,00,000/- from the
petitioner and asked divorce. Without any reason a false criminal
complaint was also filed before CJM but the application of the respondent
was not found true by the police and that case is now pending before the
J.M. at Jamshedpur.
(v) Finally, she has left the matrimonial home in the year 2021 and has
not returned to the company of the petitioner despite his effort to bring her
back.
(vi) Learned counsel, based upon the aforesaid grounds, has submitted that
since the factum of cruelty has been sufficiently established, based upon
which the decree of divorce has been granted, as such, no interference is
required in the order impugned.
Analysis:
21. We have heard the learned counsel for the parties as also the finding
recorded by the learned Family Judge in the impugned judgment as also
the record of the learned Family Judge.
22. The case has been heard at length. The admitted fact herein is that the suit
for divorce has been filed by the respondent/husband on the ground of
cruelty and desertion, i.e., by filing an application under Sections 13(1)(i-
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a) (i-b) of the Hindu Marriage Act, 1955 and, accordingly, issues have
been framed by the learned Family Court wherein primarily issue nos.III
and IV pertain to cruelty and desertion.
23. The evidence has been laid on behalf of both the parties. Thepetitioner-
husband had examined himself as P.W.2 and further on his behalf other
witnesses namely Ushakar Mahakud and Ashwani Kumar Pradhan have
been examined as P.W.1 and P.W.-3.
24. The evidence of witnesses examined on behalf of the petitioner-husband is
referred herein under:
(i) PW-2 Saheb Mahakud (respondent-husband himself) has supported
his case.
In cross-examination he admitted that he had mentioned in his
deposition that he was illiterate and only knew how to write his name. He
has repeated the fact that on many occasions he visited the house of the
respondent to bring her, but she always abused by saying that she would
not live in the village and intended to live in a town, has further stated that
she always gave threatening to implicate in a false case. He has also stated
that he has filed the application given to S.P. and D.C. regarding the
torture made by the respondent. He has also said that despite the fact the
respondent does not want to live with him he went to bring her back but
now he does not want to keep her as had his wife any intention to live
with him she would not have sent him to jail.
(ii) PW-1, Ushakar Mahakud is father of the petitioner. In his
examination-in-chief he has repeated the facts of the plaint.
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In cross-examination he had deposed that since his son does not
reside with him as such, he cannot say about taking medicine for potency
by the petitioner. He has denied the allegation regarding torture meted out
to the respondent and has said that only for the purpose of making paper
she admitted herself in hospital. He has further stated that complaint was
made to Mukhiya and Sarpanch, but no paper was made.
(iii) PW-3, Ashwani Kumar Pradhan is Gram Pradhan of village Bara
Sijulta. In his examination-in-chief he has stated that the petitioner is his
own Bhagina whereas O.P. is also his distant relative. He has fully
supported the case by elaborating conduct of the respondent.
In Cross-examination, he stated that O.P. is the daughter of his
Mousi. About behavior of the respondent, he has stated that these facts
have been disclosed by the petitioner. He has stated entire period of
residing in the matrimonial house by the respondent after marriage was
only for 2-3 months is within his knowledge. He has also supported the fact
ofconvening a meeting in his presence as disclosed in para 10 of his
deposition but has said that no paper was prepared in the meeting.
25. On behalf of the respondent (Appellant-wife herein) three witnesses had
been examined including herself as D.W.1 and further mother and aunty of
the respondent namely Bharti Devi and Arti Devi had been examined as
D.W.2 and D.W.3.
26. The evidence of witnesses examined on behalf of the respondent-wife is as
under:
(i)D.W.-1 is Champa Kumari @ Sampa is the appellant-wife herein has in
her examination-in-chief has supported the case negating the claim and
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assertion of the petitioner. She has made disclosure of cruelty attributed to
her in the matrimonial house just after 2 months of her marriage by the
petitioner and in-laws and has mentioned a specific date 16.01.20 when her
husband in the night badly assaulted her for which she went to local P.S.
where her husband admitted his guilt by giving an undertaking for not
doing the thing again and her medical examination was also made on
17.01.20 and thereafter, she was admitted in Tata Main Hospital on
18.01.20 and after discharge on 20.01.20, she is residing in her parental
house. She has also stated about the case lodged by her u/s 498A, 321, 323,
307 of the IPC and Sections 3 & 4 of the D.P. Act in which the cognizance
has been taken. She has also mentioned in her deposition that for
maintenance she filed O.M. case No. 92 of 21 at Jamshedpur in which
judgment was passed on 24.05.23 but despite the judgment, the petitioner is
avoiding payment of maintenance.
In cross-examination, she has denied the allegations made by the
petitioner and has repeated the facts of cases filed by her. She has denied
the allegations that she used to put pressure on her husband to arrange a
separate house in town and always used to go to her maike. She has also
denied the allegation that she caused injury to herself.
(ii)D.W.-2 Bharati Devi is mother of the respondent. In depositions she has
fully supported the facts as stated in the show cause and has denied the
allegations of the petitioner. During her further examination in chief, she
identified three photographs showing injury of her daughter which has been
marked as Exhibit A. She has also identified the documents relating to
admitting and discharge from TMH which has been marked as Exhibit B.
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In her cross-examination she had stated that she is illiterate, the affidavit is
prepared in English and what mentioned therein, she does not know, but
the facts relating to divorce have been mentioned. She has again stated the
demands made after the marriage but has admitted that the marriage was
performed without taking dowry. She has stated that her son-in-law is not
literate, but her daughter is a graduate. She has admitted that after marriage,
her son-in-law called a meeting after marriage which she attended with
several persons. She has stated that the second time she went there when
her daughter was assaulted and after consoling, she returned. She has
denied the fact that since her son-in-law is an illiterate person and is a
driver having less income as such, she does not want to send her daughter
with him. She also denied the fact that she wants to keep her son-in-law in
her own house as gharjamai.
(iii) D.W.-3 Arati Devi, aunt of the respondent has also repeated the same
facts as a replica of the other witnesses. She has stated that the parties are
her close relatives, and she has denied the fact that marriage was performed
at her initiative but has admitted that marriage was solemnized without
dowry. She has stated that she knows that both sides have filed cases
against each other. She has stated that she does not know how many days
have passed since marriage, or how many days the respondent stayed in her
matrimonial house but for 3 to 4 years she has been residing in her parental
house. She has denied being the witness of any assault but has stated that
when the respondent came to her house, she saw signs of being slapped on
her face and has also stated that everything has been explained and
disclosed by her sister on the phone. She has also admitted that the
petitioner is an illiterate person whereas her niece is a graduate and
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knowing all these facts marriage was performed but this is not a fact that
for this reason, her niece does not want to live with the petitioner. She has
stated that in her affidavit several dates have been mentioned but she
cannot say about any date as of now.
27. The following documents have been adduced on behalf of the petitioner-
husband:
(i) Certified copy of written application in Rajnagar P.S. dated
09.02.2020 which is exhibited as Ext.1
(ii) Certified copy of application dated 24.2.2020 to Mukhiya is marked
as Ext. 2.
(iii) Certified copy of application dated 24.2.2020 to D.C. Seraikella is
marked as Ext.3.
(iv) Certified copy of application dated 24.2.2020 to S.P., Seraikella is
marked as Ext.4.
(v) Certified copy of judgment in O.M. No. 92 of 2021 dated
24.05.2023 marked as Ext.5.
21. The following documents have been adduced on behalf of the
respondent-wife:
(i) Three photos of respondent showing injury marked as Ext.A
(ii) Photocopy of discharge summery of TMH the date of admission
18.1.20202 and date of discharge 20.01.2020 marked as Ext.B.
22. The learned Family Judge after taking into consideration the entire
evidenceas well as the documentary evidence adduced on behalf of the parties,
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has decided the suit vide order dated 30.03.2024by holding that the petitioner/
respondent herein has been able to prove his case for divorce on the ground of
cruelty against the respondent/ appellant herein on the touchstone of
preponderance of probabilities.
23. The instant appeal has been preferred against the aforesaid
order/judgment dated 30.03.2024.
24. 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.
25. 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).
26. 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 theHon'ble
Apex Court in series of judgments.
27. The law is well settled that the High Court in a First Appeal can
examine every question of law and fact which 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
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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:
"27. 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."
28. It also 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
circumstanceswould 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 cruelty has
been alleged therefore cogent evidence is required to be laid by the parties in
order to substantiate their claim.
29. 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.
30. 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,
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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.
31. 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.
32. In the backdrop of the aforesaid settled position of law and factual
aspect of the instant case this Court is now adverting to the merit of the case.
33. The learned counsel for the appellant/wife has argued that the
evidence of crueltyhas not properly been considered and as such, the judgment
suffers from perversity, hence, not sustainable in the eyes of law.
34. While on the other hand, argument has been advanced on behalf of
the respondent-husband that the judgment is well considered.
35. This Court while appreciating the argument advanced on behalf of the
parties on the issue of perversity needs to refer herein the interpretation of the
word "perverse" as has been interpreted by the Hon'ble Apex Court which
means that there is no evidence or erroneous consideration of the evidence. The
Hon'ble Apex Court in Arulvelu and Anr. vs. State [Represented by the Public
Prosecutor] and Anr., (2009) 10 SCC 206 while elaborately discussing the
word perverse has held that it is, no doubt, true that if a finding of fact isarrived
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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 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
theevidence. 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.
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3. The New Oxford Dictionary of English, 1998 Edn. Perverse.--Law (of a
verdict) against the weight of evidence or the direction of the judge on a
point of law.
4. The New Lexicon Webster's Dictionary of the English Language (Deluxe
Encyclopedic Edn.) Perverse.--Purposely deviating from accepted or
expected behavior or opinion; wicked or wayward; stubborn; cross or
petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, 4th Edn. "Perverse.--A
perverse verdict may probably be defined as one that is not only against the
weight of evidence but is altogether against the evidence.""
36. 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 probablybe defined as one that
is not only against the weight of evidence but is altogether against the evidence.
37. In the instant case, since the issue of desertion has been decided
against the respondent/ husband and the instant appeal has been filed by the
appellant/wife by contending that the issue of cruelty has not been properly
appreciated by the learned Family Court, therefore this Court is now adverting
to the issue of cruelty as involved in the present case.
38. 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.
39. 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
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appellant-husband and his parents demanded dowry. The Hon'ble Apex Court
emphasized that "cruelty" can have no fixed definition.
40. 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."
41. 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."
42. 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.
43. 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
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conducting a cross-examination. The Hon'ble Apex Court held these
allegations against the husband to constitute "cruelty".
44. 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.
45. It needs to refer herein that it is settled position that a proceeding
under Hindu Marriage act is not criminal proceeding where proof beyond
reasonable doubt is required rather preponderance of probability" is enough.
However, the character of spouse 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. The accepted rule, therefore, is that circumstantial evidence is
all that can normally be expected in proof of charge; However, the
circumstances must be such as to lead to fair inference, as a necessary
conclusion. In other words, proof required to prove adultery need not
necessarily be what is at times said to be proof beyond a shadow of doubt, "It
need not reach certainty but must carry a high degree of probability".
46. The Hon'ble Apex Court in Joydeep Majumdar v. Bharti Jaiswal
Majumdar, (2021) 3 SCC 742, has been pleased to observe that while judging
whether the conduct is cruel or not, what has to be seen is whether that
conduct, which is sustained over a period of time, renders the life of the spouse
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so miserable as to make it unreasonable to make one live with the other. The
conduct may take the form of abusive or humiliating treatment, causing mental
pain and anguish, torturing the spouse, etc. The conduct complained of must be
"grave" and "weighty" and trivial irritations and normal wear and tear of
marriage would not constitute mental cruelty as a ground for divorce.
47. 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
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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.‟"
48. 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.
49. 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.
50. 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
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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.
51. In the backdrop of the aforesaid settled legal position this Court is
now adverting to the factual aspect of the case as well as finding of the learned
Family Court.
52. Admittedly it is evident from record that the allegation of cruelty has
been leveled by both the parties against each other.
53. The respondent husband (petitioner/applicant before the Family
Court) has stated that after consummation of marriage, respondent/appellant
wife is not very much interested in staying in her matrimonial home and started
making fight and quarrel, abusing entire family members with muddy
languages and the respondent/wife in order to pressurize regularly insists the
applicant to take a house on rent at Baridih in Jamshedpur and even after
efforts to convinced the respondent about his inability to arrange a house on
rent the respondent(appellant wife herein) did not agree and continued her
irrational behaviour and sometimes used to hit her head on wall with intend to
injure and putting blame upon the applicant and his family members with
threatening to implicate in false criminal cases.
54. Per contra in written statement the appellant wife (respondent before
the Family Court) has stated that the respondent/husband and his family
members are guilty of committing cruelties upon the her and after the marriage,
they started harassing the respondent/appellant. She has made disclosure of
cruelty attributed to her in the matrimonial house just after 2 months of her
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marriage by the petitioner and in-laws and has mentioned a specific date
16.01.20 when her husband in the night badly assaulted her for which she went
to local P.S. where her husband admitted his guilt by giving an undertaking for
not doing the thing again and her medical examination was also made on
17.01.20 and thereafter, she was admitted in Tata Main Hospital on 18.01.20
and after discharge on 20.01.20. She has also stated about the case lodged by
her u/s 498A, 321, 323, 307 of the IPC and Sections 3 & 4 of the D.P. Act in
which the cognizance has been taken.
55. This Court has gone through the impugned order/judgment wherefrom
it is evident that the learned Family Court has mentioned the aforesaid
allegations made by the parties against each other at paragraph 10 of the
impugned order but surprisingly without appreciating the veracity of allegation
and counter allegation of the parties, had abruptly come to the finding that the
silver line of marital relationship has vanished between the parties and
accordingly passed the order of dissolution of marriage between the parties. For
ready reference the said paragraphs of the impugned judgment are being quoted
as under:
10. In the present case allegation of cruelty has been imputed by both the
sides against each other. From the evidence on record, I find the following
facts as relevant of discussion.
(a) It transpires that complaint of behavioural attitude has started after few
days of the marriage and the respondent always putting pressure to the
petitioner to have a separate house in town.
(b) Evidence also has surfaced that the petitioner always tried to make
understand the respondent that he cannot leave las parents but she did not
agree.
(c) It has also come in evidence that petitioner is not literate and he is a
simple auto driver and perhaps the respondent who is a graduate does not
want to live with him. In this regard on account of dispute between them,
Intervention of the police on making application before, has also surfaced
as an admitted fact.
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(d) After reaching to the police, the respondent has again re-entered into
her matrimonial house but due to the alleged behaviour of the respondent
some social meetings regarding dispute between the parties has also come
on record as an admitted fact, though there was no any written agreement
and decision of the social punches, but thus fact has established that the
relationship between the parties never remained cordial and showing these
facts petitioner has filed many complaints before the competent authorities.
(e) O.P. has also made several complaints against the petitioner and has
finally filed a complaint case on the ground of subjecting her torture for
demand of dowry, le evidence it has come on record as an admitted fact that
marriage was solemnized without taking any dowry. On what grounds the
complaint of dowry demand and torture has been filed by the respondent
has not come on record on behalf of the respondent by filing the copy of
complaint petition. Moreover, that case pending before a competent court
and as such no finding or observation can be given regarding that it is also
an admitted fact that in this case petitioner remained in jail from 28.07.22
to 15.12.22 as well.
(f) One more aspect is required to be mentioned here that in the evidence
respondent has referred about the judgment passed in case of maintenance
with assertion that despite the order, the petitioner is not paying the
maintenance amount. On the other hand has been submitted on behalf of the
petitioner that he is regularly ping the maintenance amount in Court at
Jamshedpur and for which at the stage of argument, some copies of deposit
slips have been filed and out been disputed then by the respondent by saying
that earlier it was not within her knowledge that amount are being
deposited. As cannot be said that the petitioner is not obeying the order of
the Court.
(g) Making pressure upon the husband by wife to live away from his parents
and on that ground not residing in the matrimonial home comes within
preview of the term cruelty in the marital relationship giving a ground of
divorce to the husband under the Hindu Marriage Act.
(h) Wife has nowhere stated in the pleading or the evidence that, despite her
complain and allegations she still ready to forgive her husband and ready to
live with him and admittedly since 17.01.20 she has not returned in her
matrimonial home.
11. From the discussions made above it is established that bitterness
between the parties has reached the level that there is no scope and
chance for the parties Ind especially for the petitioner to live with the O.P.
and in such a situation, the silver line of marital relationship has
vanished.
12.Having regard to the discussed facts in the backdrop of the evidence on
record, I find that the petitioner has been able to prove cruelty as pleaded
in the form of mental cruelty attributed to him in such a manner, that
conduct of the respondent might have inflicted such mental pain and
suffering, as would make it not possible for the petitioner to live with the
OP and as such this issue No. 3 is decided in favour the petitioner and
against the respondent.
56. Thus, from the perusal of the aforesaid paragraphs it is evident that
learned Family Court has not appreciated the veracity of the statement made by
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the parties against each other and has allowed the suit for dissolution of
marriage in favour of the respondent husband.
57. Although there is no dispute that in matter like this the normal rule of
preponderance of probability is the rule which governs the proceedings but
herein since grave allegation of cruelty has been alleged therefore at least
primaryevidence is required to be laid by the parties in order to substantiate
their claim. From perusal of record, it is evident that the learned family Court
in spite of availability of the evidences, the same has not been properly been
appreciated by the learned Family Court.
58. It is settled position of law that even for the preponderance of
probability there must be some material on record would be necessary to prove
the charge, as has been held by Hon'ble Apex Court in the case of High Court
of Judicature at Bombay through its Registrar v. Uday Singh s/o Ganpatrao
Naik Nimbalkar and Others [(1997) 5 SCC 129]. However, the aforesaid
proposition of law has been laid down by the Hon'ble Apex Court in the
service matter but the said principle is also applicable herein.
59. From paragraph 12 of the impugned judgment it is evident that the
learned Family Judge has outrightly come to its conclusion that
petitioner/husband has been able to prove cruelty as pleaded in the form of
mental cruelty attributed to him in such a manner, that conduct of the
respondent might have inflicted such mental pain and suffering, as would make
it not possible for the petitioner to live with the OP. But from perusal of the
operating portion of the said impugned judgment it is evident that the learned
Family Court has not recorded its satisfaction that how the court has arrived to
the said conclusion.
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60. Further it is evident from the record particularly paragraph 26 of the
written statement which has been appended as annexure -2 of the memo of
appeal that the appellant/wife wants to lead her conjugal life with the
respondent husband and minor daughter but the said statement has also not
been appreciated by the learned Family Court.
61. As we discussed hereinabove 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. The Hon'ble Supreme Court
consistently held that the petitioner must show a consistent pattern of behavior
by the respondent to prove cruelty, and occasional outbursts of anger or
quarrels do not necessarily amount to cruelty.
62. Further, it needs to refer herein that the foundation of a sound marriage
is acceptance, adjustment and respecting each other. Tolerance to each other's
fault to a certain bearable extent has to be inherent in every marriage. Petty
quibbles, trifling differences should not be inflated to abolish what is said to
have been made in heaven. All quarrels must be weighed from that point of
view in determining what constitutes cruelty in each particular case and as
noted above, always keeping in view the physical and mental conditions of the
parties, their character and social status. A too technical and hyper-sensitive
approach would be counter-productive to the institution of marriage. The
Courts do not have to deal with ideal husbands and ideal wives. It has to deal
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with particular man and woman before it. The ideal couple or a mere ideal one
will probably have no occasion to go to Matrimonial Court.
63. This Court is of the view that in deciding the issue no. III of cruelty
the learned Family Judge has committed error in scrutinizing the evidence
adduced on behalf of the parties as the appellant-wife as D.W.1 has
categorically stated about the factum of cruelty and torture meted out to her at
the hands of her respondent-husband and remained consistent during her cross-
examination but the same has not been properly appreciated and the learned
Family Court has arrived to its finding abruptly that the cruelty has been
proved by the respondent /husband as such, the said finding of the learned
Family Court will come under the fold of perversity as per the judgment
rendered by the Hon'ble Apex Court which has been quoted and referred
hereinabove.
64. This Court after discussing the aforesaid factual aspect along with the
legal position and adverting to the consideration made by the learned Family
Judge in the impugned judgment and decree has found therefrom that the issue
of element of cruelty by the appellant-wife has not been properly considered by
the learned Family Judge.
65. This Court, on consideration of the aforesaid discussion, is of the view
that the impugned judgment and decree passed by the learned FamilyJudge is
coming under the fold of the perversity, since, the conscious consideration has
not been made of the evidences, as would be evident from the impugned
judgment.
66. This Court, taking into consideration the definition of "perversity" and
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based upon the discussion aforesaid, is of the view that the impugned judgment
needs to be interfered with.
67. Accordingly, the impugned judgment dated order/judgment dated
30.03.2024 [decree signed on 08.04.2024] passed by the learned Principal
Judge, Family Court, Seraikella-Kharsawan, in Original Suit No. 54 of 2021, is
hereby quashed and set aside.
68. In the result, instant First Appeal is hereby allowed.
69. Pending interlocutory applications, if any, also stands disposed of.
I Agree (Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Jharkhand High Court
Date: 05/02/2026
KNR/AFR
Uploaded On: 06 /02/2026
