[Cites 23, Cited by 0]
Jharkhand High Court
Mahesh Mahato vs Shibani Mahato on 15 January, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 190 of 2023
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Mahesh Mahato, aged about 34 years, Son of Jugal Mahato, Resident of
Village-Tentoposi, P.O.-Sindhukopa, Seraikella-Kharsawan.
... Appellant/Petitioner
Versus
Shibani Mahato, Wife of Mahesh Mahato, Daughter of Late Nirmal
Mahato, Resident of Village- Krishnapur, Raidih, P.O.-Adityapur, P.S.-RIIT,
Dist.-Seraikella Kharsawan.
... Respondent/Respondent
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellant : Mr. Sanjay Prasad, Advocate
: Mr. Rajiv Lochan, Advocate
For the Respondent : Mr. Abhishek Kumar Dubey, Advocate
: Mr. Harsh Utsav, Advocate
: Ms. Akriti Aprajita, Advocate
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CAV/Reserved on 18.12.2025 Pronounced on: 15/01/2026
Per Sujit Narayan Prasad, J.
1. The instant appeal under Section 19(1) of the Family Courts Act,
1984 is directed against the order/judgment dated 23.06.2023 (decree
signed on 04.07.2023) passed by the learned Principal Judge, Family
Court, Seraikella Kharsawan in Original Suit No. 55 of 2021, whereby and
whereunder, the said Suit filed by the appellant-husband under the
provisions of Sections 13(1), (i) & (i-a) of the Hindu Marriage Act, 1955
against his wife has been dismissed.
2. The brief facts of the case as per the original matrimonial suit and
the pleading made in the instant appeal needs to be referred herein
which reads under:
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This suit had been filed by the appellant/petitioner for a decree of
divorce mainly on the ground of cruelty against the respondent Shibani
Mahato, under Section 13(1), (i) & (i-a) of Hindu Marriage Act, 1955. The
marriage of the appellant-husband and respondent-wife was solemnized
according to Hindu rites and rituals on 09.05.2012 and thereafter the
respondent came to the house of the appellant and stayed there only for
one month.
After marriage, the respondent came to the petitioner's house at
Tentopasi and only after stay of one week, both went to Ghirajganj and
stayed there for one month and thereafter the respondent went back to
her parental house at Krishanpur.
It is further case that being compelled by the respondent, the
petitioner shifted to a rented house at Dindli Basti Adityapur where they
spent six months and ignoring the advice of the petitioner, the
respondent shifted to her parental house in stage of her pregnancy where
she gave birth to a male child in Nursing Home of Dr. Bina Singh at
08.06.2016, cost having been borne by the petitioner.
It is further case that after the birth of child, the respondent was
witnessed by the petitioner in compromising position with villager Mintu
Mahato in June 2020, he immediately called brother, two sisters and
mother of the respondent in the room and seeing them, the said
paramour Mintu Mahato fled away but instead of being ashamed, she
threatened and assaulted the petitioner.
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It is further pleaded that the petitioner get reliable information that
respondent was and is in habit of establishing physical relationship with
her lover Mintu Mahato by taking advantage of absence of the petitioner
during his working hours, who shifted the family to Satbahani Adityapur
after six months of child birth to save the prestige and in order to reform
the respondent, who even after giving promise did not amend her
behaviour and always asked for divorce. It is pleaded that respondent is
living separately from the petitioner since long two years in her parental
house, making the future of the boy bad and depriving him the love and
affection of the father and under the circumstances it is no longer
possible for the petitioner to live with the respondent.
As such, a suit being Original Suit No. 55 of 2021 had been filed by
the appellant/petitioner for grant a decree of divorce, which had been
dismissed, against which the present appeal has been filed.
3. It is evident from the factual aspect as referred hereinabove which
led to filing of the present appeal that, as per the Original Matrimonial
Suit, the marriage of the appellant/petitioner was solemnized with
respondent as per Hindu Rites and Customs on 09.05.2012 at Krishnapur
Rahargora.
4. After the marriage, the appellant/petitioner and respondent lived
together as husband and wife for 6 months in his rented house at Dindli
Basti, Adityapur, and out of their wedlock they have been blessed with a
son on 08.06.2016.
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5. It is alleged by the petitioner in his plaint that the respondent, left
the matrimonial house after 6 months and she began to reside at her
parental house. It is alleged that after the birth of child, the respondent
was witnessed by the petitioner in compromising position with another
person in June 2020. It is stated that the petitioner(appellant herein) get
reliable information that respondent was and is in habit of establishing
physical relationship with her lover by taking advantage of absence of
the petitioner during his working hours, who shifted the family to
Satbahani Adityapur after six months of child birth to save the prestige
and in order to reform the respondent, who even after giving promise did
not amend her behaviour and always asking for divorce. It has further
been stated that respondent is living separately from the petitioner since
long two years in her parental house and under the circumstances it is no
longer possible for the petitioner to live with the respondent.
6. In the aforesaid circumstances, the petitioner filed the suit being
O.S. Suit No. 55 of 2021 for grant a decree of divorce.
7. It is evident that the appellant-husband has made out a case by
making allegation of cruelty and the ground has been taken that the
respondent-wife is unfaithful to him and she is having illicit sexual
relationship with other person and, as such, the behavior which has been
meted out in the family life has made the life of the appellant difficult
which amounts to mental cruelty.
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8. It is evident from the factual aspect that the appellant/plaintiff had
a motion by filing a petition under Section 13(1), (i) & (i-a) of the Hindu
Marriage Act, 1955 for decree of divorce.
9. The learned Family Judge has called upon the respondent-wife. The
wife has filed written statement wherein she has denied the allegation
and has stated that she stated that at the time of marriage her father has
given jewellery of Rs. 1,50,000/- and cash amount of Rs. 1,00,000/-
however, she has been tortured and assaulted on several occasion.
10. In the backdrop of the aforesaid submission of the parties,
altogether five issues have been framed by the learned Family Court
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 under
Section 13(1), (i) & (i-a) of the Hindu Marriage Act, 1955?
(iv) Whether the petitioner has deserted by the respondent since long?
(v) Whether the petitioner is entitled for any other relief?
11. The evidences have been laid on behalf of both the parties and the
witnesses have been examined on behalf of both the parties, however no
documentary evidence has been placed before the learned Family Court.
12. The learned Family Judge has considered the statements of the
witnesses and has come to the conclusive finding that the
petitioner/appellant/ husband has not produced any material evidence
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in order to substantiate his allegation and accordingly, the judgment has
been passed dismissing the suit by holding that the appellant/petitioner
has not been able to prove his case for divorce on the grounds taken
against the respondent and the appellant/petitioner is not entitled to get
a decree of divorce, which is the subject matter of the present appeal.
Submissions of the learned counsel for the appellant-husband:
13. It has been contended on behalf of the appellant/petitioner that the
factual aspect which was available before the learned court supported by
the evidences adduced on behalf of the appellant/petitioner has not
properly been considered and as such, the judgment impugned is
perverse, hence, not sustainable in the eyes of law.
14. The learned counsel for the petitioner-appellant assailing the
impugned judgment has submitted that there is unequivocal evidences
on record laid by the Appellant that the respondent has been found in
illicit relationship and she was committing extra-marital relationship
with one Mintu Mahto but the said fact has not been appreciated in
proper manner by the learned Family Court as such the impugned
judgment requires interference of this Court.
15. It has been submitted by the learned counsel for the
appellant/petitioner that after 6 months, the respondent left the house
and started living at her paternal house. Further, the appellant-petitioner
found that the respondent is having extra-marital relationship which
gave rise to mental cruelty to the appellant-petitioner.
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16. It has been submitted that the issue of cruelty has not been taken
into consideration in the right perspective even though the fact about the
same as also the fact of living separately has well been established.
17. Learned counsel for the appellant/petitioner, based upon the
aforesaid grounds, has submitted that the judgment impugned suffers
from perversity, as such, not sustainable in the eyes of law.
Submissions of the learned counsel for the respondent-wife:
18. Per contra, the learned counsel for the respondent-wife, while
defending the impugned judgment, has submitted that there is no error
in the impugned judgement. The learned Family Judge has considered the
issue of cruelty and having come to the conclusion that no evidence has
been adduced to establish cruelty, as such, dismissed the petition.
19. It has been argued that virtually the petitioner and his family were
adamant to ask and demand more money, and on non fulfillment of the
same, they tortured the respondent in various ways and ultimately
making a false case of adultery with alleged Mintu Mahato.
20. It has further been submitted that there is no proof of any witness
regarding any such allegation on the record except the wild allegation by
the petitioner in his examination-in-chief but in cross-examination he has
failed to give any date or day of making such serious allegation and
further no case regarding that alleged act or thereafter allegedly living in
adultery with Mintu Mahato was ever reported to any of the authority
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which show that this entire allegations are imaginary and no ground thus
proved u/s 13(1) (i) of the Act 1955.
21. Learned counsel, based upon the aforesaid ground, has submitted
that if on that pretext, the factum of cruelty has not been found to be
established, based upon which the decree of divorce has been refused to
be granted, the impugned judgment cannot be said to suffer from an
error, as such, the present appeal is fit to be dismissed.
Analysis:
22. This Court has heard the learned counsel for the parties and gone
through the finding recorded by the learned Family Judge in the impugned
judgment and the trial court records.
23. It is evident from record that the said suit of decree of divorce was
filed under Section 13(1), (i) & (i-a) of the Hindu Marriage Act, 1955
however, while framing the issues the learned Family Court has framed the
issue of separation also along with the primary issue of cruelty.
24. The evidence has been led on behalf of both the parties before the
Family Court. For better appreciation, the evidences led on behalf of the
appellant/petitioner are being referred as under:
(i) P.W. 1 Indra Mahato has deposed in his testimony that the marriage of
the appellant-husband and respondent-wife was solemnized on
09.12.2012 according to Hindu customs and rites. After marriage, the
respondent-wife came to the house of appellant. He had further deposed
that the husband and wife, after 7 days, shifted in a rented house and
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further in one months, the respondent-wife went back to her matrimonial
home. It has further been stated that the respondent-wife pressurized and
convinced the appellant-husband to live in her matrimonial village and in
the meantime, on 08.06.2016, the respondent wife gave birth to a male
child. Further, she deposed in her testimony that the respondent-wife was
having extra-marital relationship with one Mintu Mahato and the
appellant-husband and respondent-wife are living separately for last 2
years.
In his cross-examination he had stated that the
petitioner/appellant has told him that the respondent lives with other
persons.
(ii) P.W. 2 and P.W. 3 (the father of the appellant-petitioner) have stated
on the same line as has been stated by P.W.1.
In cross-examination, P.W. 2 has deposed that since last 10 to 12
years, respondent is residing in her matrimonial home. P.W.2 has also
stated that he heard about the incident and on the say of Mahesh Mahato
he has come court to give evidence.
(iii) P.W.4, the appellant-petitioner himself, has deposed in his testimony
that his marriage with the respondent-wife was solemnized according to
Hindu rites and rituals on 09.12.2012 and thereafter the respondent came
to his house and stayed there only for one week. After marriage, the
respondent came to the petitioner's house at Tentopasi and only after stay
of one week, both went to Ghirajganj and stayed there for one month and
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thereafter the respondent went back to her parental house at Krishanpur.
He had further stated that being compelled by the respondent, the
petitioner/husband shifted to a rented house at Dindli Basti Adityapur
where they spent six months and ignoring the advice of the petitioner, the
respondent shifted to her parental house in stage of her pregnancy where
she gave birth to a male child in Nursing Home of Dr. Bina Singh at
08.06.2016, cost having been born by the petitioner. He had further
deposed that after the birth of child, the respondent was witnessed by him
in compromising position with villager Mintu Mahato in June 2020, he
immediately called brother, two sisters and mother of the respondent in
the room and seeing them the said paramour Mintu Mahato fled away but
instead of being ashamed, she threatened and assaulted the petitioner. It
is further deposed that the respondent is living separately from the
petitioner since long two years in her parental house.
25. On the behalf of the Respondent wife two witnesses have been
examined i.e. DW.1 Sunil Mahto and DW.2 Shibani Mahto (respondent
herself)
(i) D.W.1 is brother of the respondent wife and has stated that
appellant-husband and respondent-wife was solemnized on 09.12.2012
according to Hindu customs and rites at village Krishnapur and during
marriage apart from incurring all other expenses, gold and silver jewelry
worth 1,50,000/- were given by her parents to the petitioner and
1,00,000/- cash was also given to the petitioner. He had further deposed
that further demand to purchase motor cycle persisted in matrimonial
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house by the petitioner and his in-laws and on non-fulfillment, she was
continuously harassed, assaulted physically with threatening of dire
consequences like to be driven out of the house for begging. The
allegations of relationship of respondent with other person has flatly been
denied by this witness and had stated that on 15.04.2021 she was finally
drove out from the matrimonial house in the mid night.
In cross-examination he has categorically stated that his sister stayed
after marriage at Tentoposi for two years and thereafter she had further
stayed for two years at Dhirajganj.
(ii) DW.2 had stated that her marriage was solemnized with the petitioner
on 09.12.12 as per the Hindu ritual at Krishnapur and after marriage she
had stayed at Dhirajganj with her husband/petitioner and from the said
wedlock she has blessed with a child . It has further been stated that
during marriage apart from incurring all other expenses, gold and silver
jewelry worth 1,50,000/- were given by her parents to the petitioner and
1,00,000/- cash was also given to the petitioner. She had further stated
that and further demand to purchase motor cycle persisted in matrimonial
house by the petitioner and his in-laws and on non-fulfillment, she was
continuously harassed, assaulted physically with threatening of dire
consequences like to be driven out of the house for begging and on
15.04.2021 she was finally drove out from the matrimonial house in the
mid night and also on 10.11.2021 the petitioner threatened over phone to
provide 1,00,000/- within a week otherwise he would divorce her on false
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ground of adultery, other charges and will remarry another girl of his
choice.
26. This court in order to appreciate the arguments advanced on behalf of
the parties as referred herein above, first needs to refer herein the
interpretation of the word "cruelty" as has been defined by Hon'ble Apex
Court in the judgment rendered in Dr. N.G. Dastane Vs. Mrs. S. Dastane
[(1975) 2 SCC 326], wherein it has been held that the Court is to enquire as
to whether the 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.
27. In the case of Shobha Rani Vs. Madhukar Reddi [(1988) 1 SCC 105],
wherein the wife alleged that the husband and his parents demanded dowry,
the Hon'ble Apex Court emphasized that "cruelty" can have no fixed
definition.
28. According to the Hon'ble Apex Court, "cruelty" is the "conduct in
relation to or in respect of matrimonial conduct in respect of matrimonial
duties and 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."
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29. The Hon'ble Apex Court has further observed therein that while
dealing with such complaints of cruelty that 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."
30. 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.
31. 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 cross-examination. The Hon'ble Apex Court held these
allegations against the husband to constitute "cruelty".
32. In Vijay Kumar 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.
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33. It is the settled position of law that cruelty is a mixed question of law
and fact. Cruel treatment can be inferred from the entire course of conduct
and incidents showing display of temperament, emotion and perversion by
one spouse whereby one gives vent to his or her feelings, without intending
to injure the other. Where there is proof of a deliberate course of conduct on
the part of one, intended to hurt and humiliate the other spouse, and such a
conduct is persisted cruelty can easily be inferred. Neither actual nor
presumed intention to cause hurt to other spouse is a necessary element in
cruelty reference in this regard be made to the judgment rendered by the
Hon'ble apex Court in the case of Sujata Uday Patil v. Uday Madhukar
Patil, (2006) 13 SCC 272.
34. The Hon'ble Apex Court in Joydeep Majumdar v. Bharti Jaiswal
Majumdar, (2021) 3 SCC 742, has been pleased to observe that while
judging whether the conduct is cruel or not, what has to be seen is whether
that conduct, which is sustained over a period of time, renders the life of the
spouse so miserable as to make it unreasonable to make one live with the
other. The conduct may take the form of abusive or humiliating treatment,
causing mental pain and anguish, torturing the spouse, etc. The conduct
complained of must be "grave" and "weighty" and trivial irritations and
normal wear and tear of marriage would not constitute mental cruelty as a
ground for divorce.
35. The Hon'ble Apex Court in the case of Vidhya Viswanathan v. Kartik
Balakrishnan, (2014) 15 SCC 21 has specifically held that cruelty is to be
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determined on whole facts of the case and the matrimonial relations
between the spouses and the word 'cruelty' has not been defined and it has
been used in relation to human conduct or human behaviour. It is the
conduct in relation to or in respect of matrimonial duties and obligations. It
is a course of conduct and one which is adversely affecting the other.
36. Thus, from the aforesaid settled position of law it is evident that
"Cruelty" under matrimonial law consists of conduct so grave and weighty as
to lead one to the conclusion that one of the spouse cannot reasonably be
expected to live with the other spouse. It must be more serious than the
ordinary wear and tear of married life.
37. Cruelty must be of such a type which will satisfy the conscience of the
Court that the relationship between the parties has deteriorated to such an
extent that it has become impossible for them to live together without
mental agony. The cruelty practiced may be in many forms and it must be
productive of an apprehension in the mind of the other spouse that it is
dangerous to live with the erring party. Simple trivialities which can truly be
described as a reasonable wear and tear of married life cannot amount to
cruelty. In many marriages each party can, if it so wills, discover many a
cause for complaint but such grievances arise mostly from temperamental
disharmony. Such disharmony or incompatibility is not cruelty and will not
furnish a cause for the dissolution of marriage.
38. Since the appellant husband has also contended the issue of desertion
therefore, it would be apt to discuss herein the element of "desertion". It
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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."
39. 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.
40. Rayden on Divorce, which is a standard work on the subject at p. 128
(6th Edn.), has summarised the case-law on the subject in these terms:
"Desertion is the separation of one spouse from the other, with an
intention on the part of the deserting spouse of bringing cohabitation
permanently to an end without reasonable cause and without the consent
of the other spouse; but the physical act of departure by one spouse does
not necessarily make that spouse the deserting party."
41. 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:
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"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."
42. 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.
43. 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.
44. 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.
45. It is, thus, evident from the aforesaid reference of meaning of
desertion that the quality of permanence is one of the essential elements
which differentiate desertion from wilful separation. If a spouse abandons
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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.
46. 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.
47. 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.
48. 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.
49. 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.
50. The learned counsel for the appellant has contended that since
unequivocal evidences on record laid by the Appellant that the
respondent has been found in illicit relationship and she was committing
extra-marital relationship with one Mintu Mahto, has not been
appreciated in proper manner by the learned Family Court as such the
impugned judgment is suffering from element of perversity.
51. Per contra, the learned counsel for the respondent has contended
that the since petitioner has failed to prove the charges of adultery as well
as any ground of the cruelty against the respondent and if taking into
consideration the aforesaid fact, the learned Family Court has dismissed
the suit, the same cannot be said to be suffer from an element of perversity.
52. At this juncture it requires to refer herein 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"
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has held that it is, no doubt, true that if a finding of fact is arrived at by
ignoring or excluding relevant material or by taking into consideration
irrelevant material or if the finding so outrageously defies logic as to suffer
from the vice of irrationality incurring the blame of being perverse, then,
the finding is rendered infirm in law. Relevant paragraphs, i.e., paras-24,
25, 26 and 27 of the said judgment reads as under:
"24. The expression "perverse" has been dealt with in a number of cases. In Gaya
Din v. Hanuman Prasad [(2001) 1 SCC 501] this Court observed that the
expression "perverse" means that the findings of the subordinate authority are
not supported by the evidence brought on record or they are against the law or
suffer from the vice of procedural irregularity.
25. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [AIR 1966 Cal 31]
the Court observed that "perverse finding" means a finding which is not only
against the weight of evidence but is altogether against the evidence itself. In
Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341]
the Court observed that this is not a case where it can be said that the findings
of the authorities are based on no evidence or that they are so perverse that no
reasonable person would have arrived at those findings.
26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the Court observed
that any order made in conscious violation of pleading and law is a perverse
order. In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed that a
"perverse verdict" may probably be defined as one that is not only against the
weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey
[106 NW 814] the Court defined "perverse" as turned the wrong way, not right;
distorted from the right; turned away or deviating from what is right, proper,
correct, etc.
27. The expression "perverse" has been defined by various dictionaries in the
following manner:
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1. Oxford Advanced Learner's Dictionary of Current English, 6th Edn.
"Perverse.--Showing deliberate determination to behave in a way that most
people think is wrong, unacceptable or unreasonable."
2. Longman Dictionary of Contemporary English, International Edn.
Perverse.--Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English, 1998 Edn.
Perverse.--Law (of a verdict) against the weight of evidence or the direction of
the judge on a point of law.
4. The New Lexicon Webster's Dictionary of the English Language (Deluxe
Encyclopedic Edn.)
Perverse.--Purposely deviating from accepted or expected behavior or opinion;
wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, 4th Edn.
"Perverse.--A perverse verdict may probably be defined as one that is not only
against the weight of evidence but is altogether against the evidence."
53. In the backdrop of the aforesaid factual aspect and settled position of
law this Court is now proceeding to examine the finding so recorded by the
learned Family Judge in the impugned judgment in the touch stone of the
interpretation of the word cruelty and definition of the word desertion.
54. It needs to refer herein that Section 13(1)(i) of the Hindu Marriage
Act, 1955, allows for divorce if the other spouse has, after the marriage,
had voluntary sexual intercourse with anyone other than their spouse and
providing a ground for divorce for either husband or wife. This is one of the
several grounds under Section 13(1) for dissolving a Hindu marriage,
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alongside cruelty (13(1) (ia)), desertion (13(1) (ib)), conversion, mental
disorder, and venereal disease. For ready reference the said section is being
quoted herein which reads as under:
"13. Divorce.--(1) Any marriage solemnised, whether before or after the
commencement of this Act, may, on a petition presented by either the
husband or the wife, be dissolved by a decree of divorce on the ground
that the other party--
22[(i) has, after the solemnisation of the marriage, had voluntary sexual
intercourse with any person other than his or her spouse; or"
55. In the instant case, there is allegation of finding the respondent in her
paternal house in compromising position with alleged paramour namely
Mintu Mahato but from the statement of appellant who has been examined
as P.W.4 it is evident that he in his entire evidence had nowhere stated the
day or date of the alleged incident and he has simply stated that he had
witnesses the alleged occurrence in the month of June 2020.
56. Further P.W.1 has stated that it was told by the petitioner/appellant
that Shibani Mahato(respondent) residing in her maike with another
person. P.W.2 has also stated that he heard about the incident and on the
say of Mahesh Mahato he has come Court to give evidence. These witnesses
are thus hearsay witness on the allegation of making sexual intercourse by
the respondent with another person as well as on the allegation of living in
adultery by the respondent.
57. The petitioner/appellant in his cross-examination has also failed to
give any date or day of the incident and on disclosure of the occurrence to
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his in-laws he was assaulted and abused by them but no report of such
adulterous act and assault made to him, has been made to any authority by
the petitioner/appellant.
58. Petitioner has also tried to make a case that even at his house, in
absence when he used to go for work, respondent used to make physical
relationship with the said Mintu Mahato but no person of near by vicinity
who witnessed the said Mintu Mahato or any third person coming and
going out from the house of petitioner, have been examined on behalf of the
petitioner/appellant.
59. The learned Family Judge after taking into consideration the
aforesaid factual aspect has observed that there is no direct evidence of the
charge of adultery of the respondent and the petitioner has failed to give
any date or day of such nasty allegation against his wife imputing her
character.
60. This Court is conscious with the fact that in the case of civil nature
like matrimonial suits, the proof of the facts based on the principle of
preponderance of probability but since herein a serious charge on the
character of spouse has been leveled, and such serious issue cannot be
decided on mere preponderance of probability.
61. On the basis of discussion made hereinabove, this Court is of the
considered view that the said finding of the learned Family Court cannot be
said to suffer from an error, and as such there is no need to take the distinct
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view and further the finding of the impugned order requires no
interference on the point of alleged adultery by this Court.
62. Admittedly from the perusal of the evidence laid by the
petitioner/appellant, it is evident that in the present case, there is no
allegation of physical cruelty on the part of the respondent rather her
alleged conduct of indulging in adulterous act and behaviour have been
taken as grounds of cruelty, as such this aspect has to be seen that as to
whether it has proved to bring under the domain of mental cruelty which
has to be seen in view of the interpretation as made by Hon'ble Apex Court
which has been referred and quoted hereinabove in the preceding
paragraphs.
63. The mental cruelty as stipulated in Section 13(1) (ia) of the Act 1955
can broadly be defined as that conduct, which inflicts upon the other party
such mental pain and suffering as would make it not possible for that party
to live with the other. To put it differently, the mental cruelty must be of
such a nature that the parties cannot reasonably be expected to live
together.
64. The petitioner/appellant has put forth lot of acts constituting cruelty
by the respondent but the same has vehemently been denied by the
respondent in his written statement and evidence laid on her behalf.it is
evident from the record that there is no allegation against the respondent
that she ever ill-treated the petitioner/appellant and his other family
members in the matrimonial house.
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65. It has been alleged that respondent did not live in her matrimonial
house and compelled the petitioner/appellant to shift in a rented house at
Dindali Basti at Adityapur and from there also she shifted to her parents'
house ignoring the advice of the petitioner/appellant and thereafter it has
further been alleged that the appellant had witnessed the respondent in
compromising position with her co-villager Mintu Mahato in June 2020 at
her maike on sudden visit and the same was seen by other family members
of the respondent and this aspect has been pleaded as allegedly giving
mental pain and cruelty to the petitioner.
66. From the evidence, it has come on record that the relationship
between the parties is not cordial and the respondent in her written
statement also made counter allegation that it is the petitioner who has ill-
treated her on account of further demand of dowry despite giving
handsome amount at the time of marriage along with jewelry and was
subjected to mental and physical torture. It is the specific case of the
respondent that she was always compelled to give Rs. 1,00,000/- otherwise
she will be driven ou from the matrimonial house on the false charge of
extra marital affair and finally she was driven out from the house on
15.04.2021.
67. The witness D.W. 1 being her brother, have supported the fact as
stated by the respondent and he has denied the allegation of finding his
sister in compromising position and on protest the petitioner was
assaulted.
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68. Since ground of adultery has not been proved by the appellant and
apart from the alleged ground there is no allegation of cruelty against the
respondent as such the contention of the learned counsel for the appellant
that due to adulterous act of respondent, mental cruelty has been caused to
the petitioner/appellant is not fit to be accepted.
69. Although ground of desertion has not been taken directly but it has
been stated that the respondent is living away from the petitioner since
long without any reason and virtually she has deserted him and not coming
to his company, which is also cruelty against him but from the perusal of
impugned order it is evident that this date has also not been disclosed and
the respondent has categorically been able to give reasonable reason of
living away and has led evidence as well.
70. Thus, herein, the issue of desertion though not appropriately worded
to cover the grounds u/s 13(1) (i-b)of the Act 1955, but in the backdrop of
the pleading which contains the element of desertion, it to be discussed
that, as to whether the respondent has deserted the petitioner giving her
ground for bringing the suit for divorce as contemplated under section
13(1) (ib) of the Act 1955.
71. The learned Family Court has also categorically observed that there is
no date mentioned in the plaint that from when the respondent is living
away from him and a vague period of 2 years has been pleaded. Though the
ground of separation has not been taken in proper form as contemplated
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u/s 13(1) (ib) of the H.M.A. but this ground since pleaded has been made as
an issue.
72. In the written statement it has been admitted by the respondent that
on 15.04.2021, she was finally driven out from the matrimonial house and
since then, she is residing in her parental house, which negates the
assertion of the petitioner that his wife is living separately from him on her
own will is not acceptable herein, rather from the factual aspect it appears
that she was compelled to leave the matrimonial house due to constant
demand of the dowry and harassment.
73. The learned Family Court on the point of desertion has observed
which reads as under:
"Having regard to the discussed facts in the backdrop of the evidence on
record vis a vis, the parameters as ingredients required for desertion in
the judgments supra, I find that the petitioner has not been able to prove
the fact that his wife (respondent) is living separately since last 2 years
and the respondent via her W.S. and during evidence has been able to
show justifiable reason to live separately from her husband giving a
specific date 15.04.2021, when she was thrown out of the matrimonial
house. Accordingly, this issue No.4 is decided against the petitioner and in
favour of the respondent."
74. This Court since has concurred with the view taken by the learned
Family Judge so far as not proving the element of cruelty/adultery 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
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of the 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 the meaning
of the word "desertion" and by coming to conclusion that the appellant
husband has failed to substantiate that the responded wife at her own will
had left the matrimonial house. We are conscious that as an appellate court
if any finding found to be erroneous or perverse then certainly the
appellate court may reverse the same. 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.
76. This Court, on consideration of the finding arrived at by the learned
Family Judge and based upon the aforesaid discussion, 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.
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77. 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 all
the issues raised on behalf of the petitioner/appellant has been appreciated
at length by the learned Family Judge, therefore the finding of the learned
Family Court on the point of alleged cruelty/adultery/desertion, is not
coming under the fold of the perversity.
78. This Court, therefore, is of the view that the judgment dated dated
23.06.2023 [decree signed on 04.07.2023] passed by the learned Principal
Judge, Family Court, Seraikella Kharsawan in Original Suit No. 55 of 2021,
need no interference.
79. Accordingly, the instant appeal fails and is hereby dismissed.
80. Pending interlocutory application (s), if any, also stands disposed of.
I agree (Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Samarth/A.F.R.
Uploaded on 17.01.2026
