[Cites 26, Cited by 0]
Jharkhand High Court
Hukum Lal B.P vs Meghwati Devi @ Jyoti Chouhan on 10 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.41 of 2025
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Hukum Lal B.P., aged about 55 years, son of late Lahri B.P., resident of
Keshalpur Colliery, PO: Katras Bazar, PS: Katras, District Dhanbad,
Jharkhand. ...... Plaintiff/Appellant
Versus
Meghwati Devi @ Jyoti Chouhan, aged about 55 years, wife of Hukum
Lal B.P., resident of Kenduadih, E.B. Section, PO: Kusunda, PS:
Kenduadih, District Dhanbad, Jharkhand. ...Defendant/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. Suraj Singh, Advocate
For the Respondent(s) : Mr. Sanjay Prasad, Advocate
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CAV ON: 03.02.2026 PRONOUNCED ON:10 .02.2026
Per Sujit Narayan Prasad, J.
Prayer:
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
17.12.2024and decree dated 04.01.2025 passed by the learned Additional
Principal Judge, Additional Family Court No.II, Dhanbad, in Original Suit
No. 924 of 2022, whereby and whereunder, the said Suit filed by the
appellant-husband under the provisions of Section 13(1)(i-a) and (i-b) of
Hindu Marriage Act, 1955was dismissed on contest holding that the
plaintiff is not entitled to decree of divorce and, therefore, suit is
dismissed.
Factual Matrix
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 in the month of
April, 1985 at Kathara, Bokaro, as per Hindu rites and customs. After
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the marriage both the parties had been living together as wife and
husband at Keshalpur, Katras. Out of their wedlock, four children were
born, namely, Rakesh Chouhan, aged about 34 years, Rajesh Chouhan,
aged about 32 years, Ajay Chouhan, aged about 28 years and Raja
Chouhan aged about 24 years. It is further stated that the respondent
Meghwati Devi has adopted Christian religion and started living in
Church at Padri.It is further stated that the respondent used to torture
him and also threatened him of dire-consequences. The petitioner and
his sons tried to persuade her to reside together but she flatly refused.
The respondent has no any concern with him.
4. Cause of action for the suit arose in April 1985 when the marriage was
performed. It also arose on several occasions when the respondent
misbehaved and committed cruelty with the petitioner.
5. Notice was issued to the respondent who appeared and filed her written
statement admitting the factum of marriage with the petitioner-appellant.
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 marriage of the petitioner and respondent is fit to be
dissolved on the ground of cruelty u/s 13 (1)(i-a) of the Hindu
Marriage Act?
(iv) Whether the marriage of the petitioner and respondent is fit to be
dissolved on the ground of desertion u/s 13(1)(i-b) of the Hindu
Marriage Act?
(v) Whether the petitioner is entitled forthe reliefs as claimed for?
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6. The evidences have been laid on behalf of both the parties. The petitioner
husband had examined himself as P.W.1 and further on his behalf his son
namely Raj Chouhan has been examined as P.W.2.
7. On behalf of the respondent-wife three witnesses had been examined
including herself as D.W.1 and further two independent witnesses,
namely,Kranti Devi and Shyam Bhuiya have been examined as D.W.2 and
D.W.3 respectively.
8. After appreciation of the evidences, the Additional Principal Judge,
Additional Family Court No.II, Dhanbad vide judgment dated 17.12.2024
has dismissed the suit by holding that the plaintiff is not entitled to decree
of divorce and, therefore, suit is dismissed.
9. The appellant-husband being aggrieved and dissatisfied with the impugned
judgment dated 17.12.2024and decree dated 04.01.2025 passed by the
learned Additional Principal Judge, Additional Family Court No.II,
Dhanbad in Original Suit No. 924 of 2022 has filed the present First Appeal
under Section 19(1) of the Family Courts Act, 1984.
Arguments advanced on behalf of the plaintiff/appellant-husband:
10. The learned counsel for the plaintiff-appellant has raised the following
points:
(i) It has been submitted on behalf of the appellant that the
marriage was solemnized in the month of April 1985, according to
Hindu rites and customs.
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(ii) It has been contended that respondent was treating the appellant
with cruelty and respondent has deserted the appellant continuously
for more than four years for no reason.
(iii) The respondent/wife has adopted Christian religion and started
living in Church at Padri.
(iv) It is further contended that the respondent is having illicit
relationship with another person namely Basudeo Kumar Jha and
she has deserted him for more than five years.
(v) It is further contended that the respondent has left the house on
18.9.2020 leaving his husband/appellant and four children.
(vi) The appellant is paying maintenance of Rs. 10,000/- per month
regularly to the respondent as per direction of Family Court,
Dhanbad in Maintenance Case No. 415 of 2020.
(vii) It is further contended that efforts for mediation were made in
the Mediation Centre, Dhanbad between the appellant and
respondent along with four children inspite of that the respondent
has not come to live with her husband. Therefore, impugned
judgment and decree is liable to be quashed and set aside.
Arguments advanced on behalf of the Defendant/respondent-wife:
11. Per contra, Mr. Sanjay Prasad, the learned counsel appearing on behalf of
the respondent-wife, while defending the impugned judgment, has
submitted that there is no error in the impugned judgment. The learned
counsel has raised the following points:
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(i) The learned Family Judge has rightly come to the conclusion
that the petitioner-husband (appellant herein) has failed to prove the
ingredients of cruelty and desertion against the respondent and has
dismissed the suit filed by the petitioner-appellant.
(ii) It has been submitted that the appellant-husband used to torture
her physically and mentally in various ways after having drink but
she kept mum due to her children and she always has discharged her
duty as wife. Due to continuous torturing of her husband, she
started living separately from 18.9.2020.
(iii) It is further contended that the petitioner is habitual of having
drink and he is having illicit relationship with another lady. She is
residing separately due to continuous harassment of her husband.
(iv) Learned counsel, based upon the aforesaid grounds, has
submitted that no interference is required in the order impugned.
Analysis:
12. This Court has heard the learned counsel for the parties and gone through
the findings recorded by the learned Family Judge in the impugned
judgment.
13. The case has been heard at length. The admitted fact herein is that the suit
for divorce has been filed on the ground of cruelty and desertion, i.e., by
filing an application under Sections 13(1)(i-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.
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14. The evidence has been laid on behalf of both the parties. The petitioner-
husband had examined himself as P.W.1 and further on his behalf his son
Raj Chouhan has been examined as P.W.2.
15. The evidence of witnesses examined on behalf of the petitioner-husband is
referred herein under:
(i) PW-1 Hukum Lal B.P. is the petitioner-appellant himself has
supported his case in his examination-in-chief.
In his cross-examination he deposed that he resides in Kesharpur
Colliery. Prior to it he was residing with his son and wife. Prior to
18.9.2020 there was no any problem between both the parties. He had not
made any complaint to Mukhiya, panchayat, Thana or Court regarding
illicit relationship of his wife. It is not true that after being beaten she was
driven out from her matrimonial home. He has made complaint on
19.12.2020 to Ramkanali. In Maintenance Case he had stated that he is
ready to keep his wife but she does not want to live with him. He has
further deposed that he wants divorce from his wife as she is having illicit
relationship with his driver.
(ii) PW-2 Raj Chouhan is the son of the petitioner. In his examination-in-
chief he has supported the evidence of PW-1.
In his cross-examination he has stated that his mother adopted
Christian religion in year 2008 and his father adopted Christian religion in
the year 2011. His father and mother used to quarrel in the night. His
mother never abused or assaulted his father. His father and elder brother
had gone in search of his mother but she could not be traced out.His mother
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has illicit relationship with Basudeo Kumar Jha and due to respect of the
family they did not make any complaint against Basudeo Kumar Jha either
in Thana or Court.
16. The evidence of witnesses examined on behalf of the respondent-wife is as
under:
(i)D.W.-1 is Meghwati Devi @ Jyoti Chouhan is the respondent-wife
herein who in her examination-in-chief has negated the claim and assertion
of the petitioner.She has stated that she was married with petitioner in April
1985 and out of the wedlock there are four sons. Both husband and wife
adopted Christian Religion in year 2008 and she was Padri in Kesharpur
Church. But in year 2020 by making conspiracy she was removed from
Padri. She was tortured physically and mentally in various ways after
having drink by the petitioner. But she kept mum due to her children and
she always discharged her duty as wife. Due to continuous torturing of her
husband, she started living separately from 18-09-2020. As per order of
Learned Family Court, she is getting maintenance Rs. 10,000/- per month.
Petitioner ishabitual of having drink and he is having illicit relationship
with another lady. She is residing separately due to continuous harassment
of her husband.
In cross-examination she deposed that she has four sons but now
they have no any affection with her. After filing of the case, she had gone
to meet her children and they also had come in search of her. Children had
persuaded her to reside with their Papa but she refused for the same. She
has given oral information in Thana regarding drinking of her husband.
When she was residing with her husband a driver was also residing there
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but she does not know the name of the driver and also, she does not identify
him. It is not truethat she is having illicit relationship with the aforesaid
driver and so her husband had removed the driver. She was residing with
her husband till 18-09-2020 and during that period no cohabitation took
place between husband and wife. She does not want divorce from her
husband.
(ii) DW-2 and DW-3 are independent witnesses who have supported the
evidence of DW-1 in their examination-in-chief. In cross DW-2 has stated
that she is having friendship with Meghwati Devi for about two years. She
never met with the children of respondent. Meghwati Devi is still residing
in her house and she provides her food and water. It is not true that
Meghwati Devi was having illicit relationship with another person and so
both husband and wife used to quarrel with each other and she does not
want to live with her husband.
DW-3 has stated in his cross that he resides in Basjora and
respondent resides in Kendua. He has gone to the house of Meghwati Devi
at Kesharpur. He has seen that after having liquor the petitioner had beaten
his wife. He is acquainted with both the parties for about 3-4 years but he
cannot say the name of both parties.
17. No document has been adduced on behalf of either side.
18. The learned Family Judge after taking into consideration the entire
evidences adduced on behalf of the parties, has decided the suit vide order
dated 17.12.2024 by holding that the petitioner has not been able to prove
his case for divorce on the ground of cruelty and desertion against the
respondent against which the present appeal has been filed.
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19. 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.
20. 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).
21. 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.
22. 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 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
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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."
23. 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.
24. 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.
25. In "A. Jayachandra v. Aneel Kaur" (2005) 2 SCC22 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.
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26. 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.
27. In the backdrop of the aforesaid settled position of law and factual aspect of
the instant case this Court is now adverting to the issue of cruelty as well as
allegation of desertion as involved in the present case.
28. The learned counsel for the appellant/plaintiff has argued that the evidence
of cruelty/desertion has not properly been considered and as such, the
judgment suffers from perversity, hence, not sustainable in the eyes of law.
29. While on the other hand, argument has been advanced on behalf of the
respondent-husband that the judgment is well considered and same is not
suffering from any element of perversity.
30. This Court while appreciating the argument advanced on behalf of the
parties on the issue of perversity needs to refer herein the interpretation of
the word "perverse" as has been interpreted by the Hon'ble Apex Court
which means that there is no evidence or erroneous consideration of the
evidence. The Hon'ble Apex Court in Arulvelu and Anr. vs. State
[Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206
while elaborately discussing the word perverse has held that it is, no doubt,
true that if a finding of fact is arrived at by ignoring or excluding relevant
material or by taking into consideration irrelevant material or if the finding
so outrageously defies logic as so to suffer from the vice of irrationality
incurring the blame of being perverse, then, the finding is rendered infirm
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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.
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
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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.""
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. Admittedly, in the instant case, one of the grounds for divorce has been
taken on the issue of cruelty.
33. 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.
34. 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
appellant-husband and his parents demanded dowry. The Hon'ble Apex
Court emphasized that "cruelty" can have no fixed definition.
35. 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
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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."
36. 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."
37. 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.
38. In V. Bhagat vs. D. Bhagat (Mrs.), (1994)1 SCC 337, the wife alleged in
her written statement that her husband was suffering from "mental
problems and paranoid disorder". The wife's lawyer also levelled
allegations of "lunacy" and "insanity" against the husband and his family
while he was conducting a cross-examination. The Hon'ble Apex Court
held these allegations against the husband to constitute "cruelty".
39. In Vijaykumar Ramchandra Bhate v. Neela Vijay Kumar Bhate, (2003)6
SCC 334 the Hon'ble Apex Court has observed by taking into
consideration the allegations levelled by the husband in his written
statement that his wife was "unchaste" and had indecent familiarity with a
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person outside wedlock and that his wife was having an extramarital affair.
These allegations, given the context of an educated Indian woman, were
held to constitute "cruelty" itself.
40. 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".
41. 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
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irritations and normal wear and tear of marriage would not constitute
mental cruelty as a ground for divorce.
42. Further, in the case of Vishwanath Agrawal v. Sarla Vishwanath Agrawal,
(2012) 7 SCC 288, the Hon'ble Apex Court has held as follows:
"22. The expression "cruelty" has an inseparable nexus with human
conduct or human behaviour. It is always dependent upon the social strata
or the milieu to which the parties belong, their ways of life, relationship,
temperaments and emotions that have been conditioned by their social
status.
25. After so stating, this Court observed in Shobha Rani case about the
marked change in life in modern times and the sea change in matrimonial
duties and responsibilities. It has been observed that : (SCC p. 108, para 5)
"5. ... when a spouse makes a complaint about the treatment of cruelty by
the partner in life or relations, the court should not search for standard in
life. A set of facts stigmatised as cruelty in one case may not be so in
another case. The cruelty alleged may largely depend upon the type of life
the parties are accustomed to or their economic and social conditions. It
may also depend upon their culture and human values to which they attach
importance."
26. Their Lordships in Shobha Rani case referred to the observations made
in Sheldon v. Sheldon wherein Lord Denning stated, "the categories of
cruelty are not closed". Thereafter, the Bench proceeded to state thus:
(Shobha Rani case, SCC p. 109, paras 5-6)
"5. ... Each case may be different. We deal with the conduct of human
beings who are not generally similar. Among the human beings there is no
limit to the kind of conduct which may constitute cruelty. New type of
cruelty may crop up in any case depending upon the human behaviour,
capacity or incapability to tolerate the conduct complained of. Such is the
wonderful (sic) realm of cruelty. 1. These preliminary observations are
intended to emphasise that the court in matrimonial cases is not concerned
with ideals in family life. The court has only to understand the spouses
concerned as nature made them, and consider their particular grievance. As
Lord Reid Gollins v. Gollins : (All ER p. 972 G-H) observed in „... In
matrimonial affairs we are not dealing with objective standards, it is not a
matrimonial offence to fall below the standard of the reasonable man (or
the reasonable woman). We are dealing with this man or this woman.‟"
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43. 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.
44. 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.
45. 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
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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.
46. Since the appellant husband has also contended the issue of desertion
therefore, it would be apt to discuss herein the element of "desertion".
47. It needs to refer herein that the word 'desertion' has been given in
Explanation to Section 13 (1) of the Hindu Marriage Act,1955 wherein it
has been stated that "the expression desertion means the desertion of the
petitioner by the other party to the marriage without reasonable cause and
without the consent or against the wish of such party, and includes the
willful neglect of the petitioner by the other party to the marriage, and its
grammatical variations and cognate expressions shall be construed
accordingly."
48. 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.
49. Rayden on Divorce, which is a standard work on the subject at p. 128 (6th
Edn.), has summarised the case-law on the subject in these terms:
"Desertion is the separation of one spouse from the other, with an
intention on the part of the deserting spouse of bringing cohabitation
permanently to an end without reasonable cause and without the
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consent of the other spouse; but the physical act of departure by one
spouse does not necessarily make that spouse the deserting party."
50. 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."
51. 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.
52. 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.
53. Desertion as a ground of divorce differs from the statutory grounds of
adultery and cruelty in that the offence founding the cause of action of
desertion is not complete, but is inchoate, until the suit is constituted,
desertion is a continuing offence.
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54. 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 willful 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.
55. 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.
56. The Hon'ble Apex Court in Debananda Tamuli vs. Kakumoni Kataky,
(2022) 5 SCC 459 has considered the definition of 'desertion' on the basis
of the judgment rendered by the Hon'ble Apex Court in Lachman
Utamchand Kirpalani v. Meena, AIR 1964 SC 40 which has been
consistently followed in several decisions of this Court.
57. 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
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deserted spouse and the conduct of the deserted spouse should not give a
reasonable cause to the deserting spouse to leave the matrimonial home.
58. Thus, from the aforesaid settled position of law, it is evident from the
interpretation of the word "cruelty" that daily tear and wear is not
construed to be the cruelty while on the other hand desertion means
parting away one spouse from the other, but while deciding the issue of
desertion the factum of parting away is to be seen as to whether the
parting away is due to compulsion or with her volition.
59. This Court is proceeding to examine the finding so recorded by the
learned Family Judge in the impugned judgment, the touch stone of the
interpretation of the word cruelty and definition of the word desertion.
60. The factual aspect as per the pleadings made in the memo of appeal as has
been incorporated in the impugned judgment and as also available in the
trial court records is that the ground of cruelty has been taken on behalf of
the appellant that the respondent-wife used to torture him and also
threatened him of dire-consequences. The petitioner/appellant tried to
persuade her to reside together but she flatly refused. He has further
deposed that he wants divorce from his wife as she is having illicit
relationship with his driver.
61. Per contra the respondent/wife has negated the claim and assertion of the
petitioner/appellant/husband.She has stated that she was married with
petitioner in April 1985 and out of the wedlock they have four sons. Both
husband and wife adopted Christian Religion in year 2008 and she was
Padri in Kesharpur Church. But in year 2020 by making conspiracy, she
was removed from Padri. She was tortured physically and mentally in
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various ways after having drink by the petitioner. But she kept mum due
to her children and she always discharged her duty as wife. Due to
continuous torturing of her husband, she started living separately from 18-
09-2020.
62. The admitted fact is that the marriage in between the parties was
solemnized in the year 1985 and they lived together up to the year 2020
i.e. about 35 years and out of the said wedlock four children were born.
The respondent-wife has left the matrimonial house in the year 2020.
63. From perusal of the statement of P.W. 1 husband/appellant it is evident
that prior to 18.9.2020 there was no problem between both the parties. He
had not made any complaint to Mukhiya, Thana or Court regarding illicit
relationship of his wife.Further in Maintenance Case he had stated that he
is ready to keep his wife but she does not want to live with him.
64. It is evident from testimony of PW-2 Raj Chouhan who is the son of the
petitioner that his mother adopted Christian religion in year 2008 and his
father adopted Christian religion in the year 2011. This witness had
supported the version of his father in context to allegation of illicit
relationship of his mother with another person but this witness has also
stated that they did not make any complaint against the said person either
in Thana or Court.
65. Further the allegation of illicit relationship made by the
petitioner/appellant was denied by the respondent/wife and she had
categorically stated that she had been tortured in her sasural by the
petitioner/appellant who is addictive of alcohol.
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66. Thus, from the aforesaid it is evident that allegation of illicit relationship
against the respondent has not been substantiated by any cogent evidence
and further the person against whom it was alleged that the said person
had sexual relationship with the respondent/wife has not been impleaded
as party respondent by the petitioner/appellant before the learned Family
Court.
67. So far as the conversion in Christianity religion is concerned, it is
admitted fact that both the parties had adopted the said religion before
year 2020 and therefore the contention of the appellant/ husband that
respondent behaviour has been changed drastically afterwards, has no leg
to stand and further the appellant has never made any complaint before
any one about the ill behaviour of the respondent wife.
68. Thus, from the aforesaid available material it is evident that the
petitioner/appellant has failed to substantiate his contention that the
respondent/wife had committed cruelty upon him and though on account
of the conduct of the respondent, he received a threat from respondent and
therefore, it was impossible for him to stay with the respondent, but the
allegation levelled by the petitioner /appellant appears to be groundless.
69. The aforesaid fact has also been taken note by the learned Family Judge in
the impugned judgment that no cogent evidence has been brought on
record to substantiate the element of mental cruelty.
70. 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 primary evidence is required to be laid by the appellant/husband in
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order to substantiate his claim but from the discussion aforesaid it is
evident that he had failed to do so.
71. 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 has found therefrom that the
issue of element of cruelty has been appreciated at length by the learned
Family Judge, therefore the finding of the learned Family Court on the
point of alleged cruelty, is not coming under the fold of the perversity.
72. So far as ground of desertion as provided under section 13 (i-b) of the
Hindu Marriage Act,1955 is concerned the desertion is to be taken into
consideration if one of the spouses has been forcefully kept away from the
company of another spouse. Here it is evident from the pleadings that the
respondent wife is living away from the year 2020 which led the
appellant-husband to file the suit for divorce.
73. In the present case the ground of desertion has been raised but no concrete
ground has been taken to prove that respondent-wife, at her own wish, has
left the company of her husband rather from the statement of respondent
wife it is evident that she was being compelled to leave her matrimonial
house.
74. This Court since has concurred with the view taken by the learned Family
Judge so far as not proving the element of cruelty and, as such, is of the
view that the moment the accusation of adultery was leveled by the
appellant-husband upon the respondent-wife the same itself amounts to
cruelty meted out to the wife by the husband and in that view of the
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situation how can it be said that the respondent-wife at her own wish has
left the company of her husband.
75. The learned Family Judge has taken into consideration meaning of the
word "desertion" and by coming to conclusion that the appellant husband
has failed to substantiate that the respondent wife at her own will had left
the matrimonial house.
76. 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.
77. Further, it needs to refer herein that the foundation of a sound marriage is
acceptance, adjustment and respecting one another. 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
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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 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.
78. Further this Court is conscious that as an appellate court if any finding
found to be erroneous or perverse then certainly the appellate court may
reverse the same.
79. This court in order to consider the issue of perversity needs to refer
herein the definition of perversity first which has been interpreted by the
Hon'ble Apex Court as referred hereinabove which means that there is no
evidence or erroneous consideration of the evidence and further, 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.
80. This Court, on consideration of the finding arrived at by the learned Family
Judge and based upon the aforesaid discussions, is of the view that the
judgment and decree passed by the learned Family Judge is not coming
under the fold of the perversity as defined by the Hon'ble Apex Court as
discussed and referred in the preceding paragraph, since, the conscious
consideration and appreciation of all issues has been made as would be
evident from the impugned judgment.
81. This Court, therefore, is of the view that the order/judgment dated
17.12.2024 and decree dated 04.01.2025 passed by the learned Additional
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Principal Judge, Additional Family Court No.II, Dhanbad, in Original Suit
No. 924 of 2022 needs no interference.
82. Accordingly, the instant appeal fails and is hereby dismissed.
83. Pending I.A.(s), if any, stands disposed of.
(Sujit Narayan Prasad, J.)
I Agree (Arun Kumar Rai, J.)
(Arun Kumar Rai, J.)
Jharkhand High Court
Date:10 /02/2026
KNR/AFR
Uploaded On:11/ 02/2026
