[Cites 29, Cited by 0]

Jharkhand High Court

Gopi Krishna vs 2. Usha Devi on 12 March, 2026

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

                                                             2026:JHHC:6754-DB




         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               F.A. No.143 of 2023
                                    ------------
1.     Gopi Krishna, aged about 43 years, son of Sri Kailash Rajak, resident
       of Mohalla S.S.M. Jalan Road (Dhobiya Tola), Ward No.20, P.O.
       Deoghar, P.S. Deoghar (Town), District Deoghar, Jharkhand.
                                                 ... ... Petitioner/Appellant
                                        Versus

2.     Usha Devi, wife of Gopi Krishna, resident of Mohalla S.S.M. Jalan
       Road (Dhobiya Tola), Ward No.20, P.O. Deoghar, P.S. Deoghar
       (Town), District Deoghar, Jharkhand.

                                                 ... ... Respondent/Respondent
                                     -------
     CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
               HON'BLE MR. JUSTICE ARUN KUMAR RAI
                                     -------
     For the Appellant          : Mr. Arvind Kumar Choudhary, Advocate
     For the Respondent         : Ms. Saman Ahmad, Advocate
                        ----------------------------

     CAV on 24.02.2026                                Pronounced on 12/03/2026

     Per Sujit Narayan Prasad, J.

Prayer

1. The instant appeal under Section 19(1) of the Family Courts Act, 1984

is directed against the Judgment dated 15.05.2023 and Decree dated

08.06.2023 passed by the learned Principal Judge, Family Court, Deoghar

in Original Suit No.379 of 2019, whereby and whereunder, the petition

filed against the respondent-wife under Section 13 (i-a) & (i-b) of the

Hindu Marriage Act, 1955 for dissolution of marriage, has been

dismissed.

Facts

2. The brief facts of the case, as per the petition, required to be referred

herein, as under:

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3. It is the case of the petitioner, appellant herein that the marriage of

petitioner (hereinafter referred to as the 'appellant-husband') with the

respondent (hereinafter referred to as the 'respondent-wife') was

solemnized on 21.06.2010 at Deoghar according to Hindu rituals and

rights. Thereafter, the parties lived together as husband and wife till the

year 2017 and in course of time, a child was also born from their wedlock

whose name is Raghav Kumar and presently aged about six years.

4. It has been alleged that some differences arose between the parties

due to misbehave of respondent-wife with the petitioner-husband and his

family members and the respondent-wife always created havoc situation

in the family and she used to abuse her in-laws in filthy language. The

respondent-wife had no respect for her in-laws and she used to disobey

her husband also. She used to leave her matrimonial home without

consent of her husband and on making any inquiry by her husband in this

regard, she used to quarrel with the family members in different ways.

The respondent did not share bed with her husband on any single day

since 15.05.2017 and she refused to lead conjugal life with the petitioner,

appellant herein from more than two and half years. The respondent-wife

is living separately in another block having rooms near the house where

her husband is living. The respondent threatened the petitioner-husband

and her in-laws to implicate them in false cases by committing suicide and

she has no care about the old ailing in-laws and she created tense situation

in the family. The petitioner-husband tried to reconcile the matter on

every occasion but in vain.

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5. The petitioner, appellant herein has no option except seeking for a

decree of divorce dissolving his marriage with the respondent-wife

accordingly suit for dissolution forb marriage has been preferred on the

ground of cruelty and desertion.

6. It is stated that the cause of action for the suit arose on 15.05.2019

when the respondent lastly refused to lead conjugal life with the

petitioner-husband. The marriage between the parties were solemnized at

Deoghar and they had lastly resided within Deoghar District, hence this

Court has territorial jurisdiction to try this suit. On the aforesaid grounds

the petitioner, appellant herein has prayed for a decree of divorce.

7. After service of summon, the respondent-wife had appeared and filed

her written statement on 24.03.2021, stating therein that the suit is

unwarranted, unnecessary and without proper cause of action and the

same is not maintainable in the eyes of law and on facts also. The

petitioner, appellant herein and respondent-wife are living together as

husband and wife continuously and there is no separation between them

since the year 2017 as alleged by the petitioner in the petition.

8. It has been stated that the respondent is an innocent lady and she has

too much love and affection for the petitioner-husband and his family

members but the petitioner-husband and his family members subjected the

respondent-wife to cruelty for which the respondent has lodged a criminal

case against them which is still pending in the Court of learned C.J.M.,

Deoghar. The petitioner is a healthy, young and sound mind person and he

has sufficient means and income to maintain his wife (the respondent) and

her son but in spite of that, the petitioner is intentionally neglecting the

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respondent-wife and her minor son at the instigation and conspiracy with

his parents and other family members. She neither hurled nor insulted her

husband or in-laws by her any act nor she uttered even a single word in

filthy language. The respondent-wife never disobeyed her husband or in-

laws and she has every regard for them. The respondent-wife is presently

facing very hard days with her minor son due to which she is earning

bread for herself and her minor son by doing work of maid in the houses

of her neighbours.

9. It has further been stated that the respondent has never refused to lead

her conjugal life with the petitioner-husband and it is the petitioner who

subjected the respondent-wife with cruelty. The petitioner-husband never

tried for reconciliation with clean heart and there is no sufficient cause of

action for filing the suit. The respondent-wife has admitted the paras-16,

17 and 18 of petition and stated that the petitioner has no proper cause of

action for filing the suit as there was no refusal on the part of respondent-

wife. On the aforesaid grounds the respondent-wife has prayed to dismiss

the suit.

10. On the basis of the pleadings of the parties, the following issues have

been framed by the learned Family Judge for adjudication of the suit,

which are as follows: -

(i) Whether the suit as framed is maintainable in its present form and for the reliefs claimed?

(ii) Whether the petitioner has got a valid cause of action to bring this suit?

(iii) Whether the respondent has deserted the petitioner without any just cause?

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(iv) Whether the respondent has subjected the petitioner with cruelty?

(v) Whether the petitioner is entitled to get the reliefs claimed or any other relief?

11. The evidences have been made on behalf of both the parties.

Thereafter, the judgment has been passed dismissing the suit filed under

Section 13(i-a) (i-b) of the Hindu Marriage Act, 1955 for a decree of

divorce by the petitioner, appellant herein, which is the subject matter of

the present appeal.

Submission of the learned counsel for the appellant-husband:

12. It has been contended on behalf of the appellant/petitioner that the

factual aspect which was available before the learned Family Judge

supported by the evidences adduced on behalf of the appellant/petitioner

has not properly been considered and as such, the judgment impugned is

perverse, hence, not sustainable in the eyes of law.

13. It has been submitted that the respondent-wife is a quarrelsome lady

and without any rhyme and reason used to quarrel with him and his family

members.

14. It has further been submitted that the respondent always created

havoc situation in the family and she used to abuse her in-laws in filthy

language. She used to leave her matrimonial home without consent of her

husband and on making any inquiry, she used to quarrel with the family

members in different ways.

15. It has been contended that the respondent-wife did not share bed with

her husband on any single day since 15.05.2017 and she refused to lead

conjugal life with the petitioner from more than two and half years.

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16. It has further been submitted that the issue of cruelty and desertion has

not been taken into consideration in right perspective by the learned

Family Court, hence the judgment impugned has been passed.

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.

Submission of the learned counsel for the respondent-wife

18. Per contra, learned counsel for the respondent-wife, while defending

the impugned judgment, has submitted that there is no error in the

impugned judgement. The learned Family Judge has considered the issue

of cruelty and desertion and have come to the conclusion that no evidence

has been adduced to establish the issue either of cruelty or desertion, has

dismissed the petition.

19. It has been contended that the she is an innocent lady and having too

much love and affection for her husband and his family members. The

respondent-wife never subjected the petitioner-husband or his family

members to cruelty. The respondent has never refused to lead her conjugal

life with the petitioner-husband and it is the petitioner-husband who

subjected the respondent-wife with cruelty.

20. It has further been contended that the respondent-wife is presently

facing very hard days with her minor son, due to which, she is earning

bread for herself and her minor son by doing work of maid in the houses

of her neighbours.

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21. It has also been submitted that the appellant-husband has never tried

for reconciliation with clean heart.

22. Learned counsel, based upon the aforesaid grounds, has submitted that

if on that pretext, the factum of cruelty and desertion has not been found

to be established, hence, the impugned judgment cannot be said to suffer

from an error.

Analysis:

23. 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.

24. The case has been heard at length. The admitted fact herein is that the

suit for divorce has been filed on the grounds of cruelty and desertion, i.e.,

by filing an application under Section 13(1) (i-a) (i-b) of the Hindu

Marriage Act, 1955 and accordingly, issues have been framed wherein

primarily issue nos. III and IV pertain to desertion and cruelty.

25. The evidence has been led on behalf of both the parties. For ready

reference, the evidences led on behalf of the parties are being referred as

under:

List of petitioner(s) witness(s)

P.W.1, Vishnu Mandal

P.W.2, Ashok Kumar Rajak

P.W.3, Rajesh Rajak

P.W.4, Sachin Kumar Sultania

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P.W., Gopi Krishna (the petitioner himself)

P.W.1, Vishnu Mandal, has deposed in his examination-in-chief that

the marriage of petitioner with respondent was solemnized in the year 2010

and the respondent lived well in her matrimonial home with the petitioner till

2017. In course of time, a child was born from the wedlock of the parties

who is presently aged about six years. After the year of 2017, the

respondent-wife started to quarrel with her husband and in-laws in various

ways and assault her husband. She used to leave her matrimonial home

without permission of her husband and in-laws. She used to remain out from

her matrimonial home even for one or two days and on being asked by her

husband, she used to threaten to commit suicide and thereby, implicate the

petitioner and his family in false case. He was a tenant in the house of

petitioner and he had also tried to persuade the respondent but she was not

listening to anyone.

In his cross-examination, he has deposed that this witness has said that

the marriage of petitioner with respondent was solemnized in the year 2010

in Bhagalpur. The petitioner's son was born in the year 2017 and the

petitioner and respondent lived well till the year 2017. The respondent

neither quarreled with him nor she quarreled with anyone in the locality.

Presently the respondent is residing in the house of petitioner.

This witness further admitted in para-21 of his cross-examination that-

"आवेदक ववपक्षी के साथ मारपीट करता है "

This witness further admitted in para-26 of his cross-examination that-

"दोनोों प्राणी में झगडा होता है . उसका समय गालूम नहीों है कभी भी हो जाता है"

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This witness has further said that the Gopi Krishan has not lodged any case against his wife for her alleged torture.

P.W.2, Ashok Kumar Rajak has deposed in his examination-in-chief

that the petitioner was married with the respondent in the year 2010 and he

was also present in the said marriage ceremony. After marriage, the

respondent lived well with her husband in her matrimonial home till the year

2017 and in course of time a child was also born from their wedlock who is

presently aged about six years. Thereafter, the respondent Usha Devi started

to quarrel with her husband in-laws and her behaviour was rude and

inhuman. She used to assault her old mother-in-law also and she had tried to

kill her husband on several occasions. He had also tried to persuade the

respondent Usha Devi but she refused to listen him. The Usha Devi used to

leave her matrimonial home without permission of her husband and in-laws

in quite arbitrary manner and on being asked about it by her husband, she

used to threaten for committing suicide.

Further, in his cross-examination, this witness has deposed that he has

attended the marriage ceremony of the petitioner with respondent and the

said marriage was solemnized in the Bhagalpur. The alleged incident of

quarrel had never occurred in his presence and he had heard about it. The

respondent had lived with the petitioner well till the year 2017. The

respondent has never quarreled with him. The respondent had never

quarreled with her neighbours. This witness has also admitted very frankly

in para-18 of his cross-examination that-

" ववपक्षी अपने ससुराल में ठीक से रहती है "

P.W.3, Rajesh Rajak has also reiterated the same thing in his examination-in-chief as has been deposed by P.W.1 and P.W.2.

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Further, in his cross-examination, this witness has deposed that he

can't say that since when the petitioner's parents are living in Deoghar. After

marriage, the parties were living well. He does not know the date of birth of

the petitioner's sone. The respondent lives in a room of the ground floor of

her matrimonial home and her mess was separate. He has further admitted in

para-13 of his cross-examination that-

"आवेदक का बेटा स्कूल जाता है। उसे स्कूल साथ में कौन ले जाता है मुझे इसकी जानकारी नहीों है"

P.W.4, Sachin Kumar Sultania has deposed in his examination-in-

chief that the respondent had lived well in her matrimonial home along with

her husband till the year 2017. Thereafter, she started to quarrel with her

husband and in-laws in various ways and she used to assault them also. He

had also tried to persuade the respondent but she was not listening to anyone

and she used to become furious on petty matters. The respondent used to

remain out from the house for one or two days and on being asked by her

husband, she used to threaten them to commit suicide and kill them also by

giving poison in their food. She used to brutally assault her son also and

threaten the petitioner and his parents to implicate in false cases.

Further, in his cross-examination, this witness has deposed that he

knew both the parties since their childhood. Presently, the petitioner's son is

living with his mother in the ground floor of the petitioner's house. Further,

he has denied this suggestion that he has no knowledge of this case.

P.W.5, Gopi Krishna (the petitioner himself) has deposed that he

was married with respondent in the year 2010 without any dowry and after

marriage, they were leading their conjugal life peacefully in his house and

the respondent lived well with him till the year 2017 and a child was also

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born from our wedlock who is presently aged about six years. Thereafter, his

wife (the respondent) started to behave with his mother and father in cruel

manner and she was treating them rudely and inhumanly and on raising

protest by him, the respondent used to be furious and abuse them. She used

to go out from his house frequently and return in late night and on being

asked by him, she used to abuse and quarrel with him. He had tried to

overlook the said behavior of him wife and persuade her but she started to

threaten him and his parents to implicate in false cases of demand of dowry.

The respondent had filed a P.C.R. Case No. 1719 of 2019, Deoghar P.S.

Case No. 15/2010, under sections 323, 341, 504, 406, 120B and 498 of the

Indian Penal Code against them and thereby harassed them. He had also

lodged Sanha regarding the said threatening of respondent. The respondent

used to brutally assault her minor child and he has made Video of the cruel

conduct of the respondent also which is being filed by him. The respondent

used to mix poison in his water with an intention to kill him and there is an

apprehension of life of his parents due to the said rude inhuman and cruel

behavior of his wife. It has become impossible for them to lead Conjugal life

and hence he has filed the suit for divorce.

Further, in his cross-examination this witness has said that he is

unemployed and fully dependent on his father's pension. He cannot say the

date of his father's retirement. Presently his wife is residing in the ground

floor of his house and the said place is equipped with all amenities. Their

marriage was solemnized in customary manner and after marriage, his wife

was living with him properly. His son studies in St. Francis School and he

lives with his mother in his house. The educational expenses of his son are

incurred by his wife. He had lodged a case against the torturous act of his

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wife in the Deoghar Police Station but its number is not remembered to him

and further, he cannot say day, date, month and year of lodging the said case.

His wife had lodged a case against him which has been compromised. They

were abiding the terms of compromise but his wife is not abiding it. Further,

he has denied from this suggestion that the instant case has been filed by him

for saving his skin from the case filed by his wife against him for her

maintenance and discharge of matrimonial obligation.

List of Respondent(s) witness(s) D.W.-1, Mukesh Kumar Rajak

D.W.-2, Manoj Kumar Rajak

D.W.-3, Usha Devi

D.W.-4, Dholi Devi D.W.-1 Mukesh Kumar Rajak has deposed in his examination-in-

chief that the petitioner and his parents have kept the respondent Usha Devi

in the outer room of their house which has no amenities. The petitioner does

not permit the respondent to use the hand pump and toilet of his house for

which the respondent had complained in administration also. Thereafter, at

the intervention of administration, the respondent was allowed to use the

said amenities for a few days which was again stopped. The respondent is a

well behaved, literate and efficient house wife and she has too much respect

and good feelings for her husband and in-laws but the respondent's husband

and in-laws treat the respondent with cruelty and the instant case has been

filed by the petitioner at the instigation of his family members.

Further, in his cross-examination, this witness has deposed that he

cannot say holding number of the petitioner's house. He and his niece (the

respondent) had gone to the Jasidih Police Station and lodged a case.

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Further, he has denied from this suggestion that the respondent used to

assault her in-laws and husband.

D.W.-2 Manoj Kumar Rajak has deposed in his examination-in-

chief that the respondent is residing in her matrimonial home situated at

Suraj Mal Jalan Road, Dhobi Tola, Deoghar. The in-laws of respondent also

reside in the same house but the respondent has been given the outer room of

this house under a conspiracy. The said room has no amenities. The

respondent is a well behaved, literate and innocent house wife and she has

too much respect and affection towards her husband and in-laws. But her in-

laws and husband used to subject her with cruelty under a conspiracy.

Further, in his cross-examination this witness has deposed that the

respondent is the younger sister. He had lodged a case in Deoghar against

the incident of not providing water and other facilities to his sister in her

matrimonial home. Further, he has denied from this suggestion that his sister

used to torture her husband and in-laws.

D.W.-3, Usha Devi (the respondent herself) has deposed that after

marriage, she is residing in her matrimonial home along with her husband

and in-laws. Her husband has given her outer room of the house under a

conspiracy and the said room has no amenities in it. She paid due respect to

her husband and in-laws but they always subjected her with cruelty for

which she had lodged a complaint case No. 1719/2019. The said complaint

case was sent to the Town Police Station on the basis of which Deoghar

Town Police Station Case No. 15/20 was lodged against her husband and his

relatives but her husband got his bail in the said case after entering into a

compromise by enticing her. But after his bail, the behavior of her husband

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was again changed and he started treating her with cruelty and inhuman

behaviour. The said case is presently pending vide the G.R. Case No.

83/2022. She has too much affection with her husband and she is still living

in the same house by tolerating all the atrocities.

Further, in her cross-examination this witness has deposed that the

petitioner's house is three storied but only one room has been provided to

her. She had filed a case for demand of dowry in the year 2019 but the said

case got compromised by her husband. Presently, she is maintaining herself

by working as a maid in the houses nearby.

Further, she has denied from this suggestion that she always torture

her husband and in-laws and assault them also.

D.W. 4, Dholi Devi has deposed in her examination-in-chief that the

respondent-Usha Devi is her daughter and she got married with petitioner

Gopi Krishna on 21.06.2010. After marriage, her daughter had been living in

her matrimonial home where her in laws, Devar and Nand also reside. But

her husband and in-laws have given the respondent only an outer room of

the house under a conspiracy which is lacking amenities of water and toilet

etc. The husband and in laws of respondent do not allow her to use the joint

hand pump and toilet. After marriage, the petitioner had kept her daughter

well for about 12 to 13 years but since last few years, he is subjecting her

with cruelty and behaving with her in discriminating way. Her daughter has

feeling of love and affection with her husband and she is still living in the

said room by tolerating all the atrocities.

Further, in her cross-examination this witness has deposed that

presently she is living in the room of her daughter which is provided to her

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in her matrimonial home. She does not reside in the matrimonial home of her

daughter permanently and she used to visit there after intervals. Her daughter

had lodged a case against her husband and in-laws on the ground of her

torture for demand of dowry which is pending since last three years. Further,

she has denied from this suggestion that the respondent was assaulting her

husband and in-laws in her matrimonial home.

26. The learned counsel for the appellant/petitioner has emphatically

argued that the evidence of cruelty and desertion has not properly been

considered and as such, the judgment suffers from perversity, hence, not

sustainable in the eyes of law.

27. While on the other hand, argument has been advanced on behalf of the

respondent-wife that the judgment has well been considered and merely by

committing fraud, the suit for divorce has been filed.

28. This Court, while appreciating the argument advanced on behalf of the

parties on the issue of perversity, needs to refer herein the interpretation of

the word "perverse" as has been interpreted by the Hon'ble Apex Court

which means that there is no evidence or erroneous consideration of the

evidence. The Hon'ble Apex Court in Arulvelu and Anr. vs. State

[Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206 while

elaborately discussing the word perverse has held that it is, no doubt, true

that if a finding of fact is arrived at by ignoring or excluding relevant

material or by taking into consideration irrelevant material or if the finding

so outrageously defies logic as to suffer from the vice of irrationality

incurring the blame of being perverse, then, the finding is rendered infirm in

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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:

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.

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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.""

29. Thus, a perverse verdict may probably be defined as one that is not only

against the weight of evidence but is altogether against the evidence.

Further "perverse" means that the findings of the subordinate authority are

not supported by the evidence brought on record or they are against the

law or suffer from the vice of procedural irregularity.

30. Herein cruelty has also been taken as ground for divorce by the

appellant/petitioner, therefore it would be apt to refer herein the meaning

of the cruelty.

31. 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.

32. This Court, deems it fit and proper to take into consideration the meaning

of 'cruelty' as has been held by the Hon'ble Apex Court in Shobha Rani

v. Madhukar Reddi, (1988)1 SCC 105 wherein the wife alleged that the

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husband and his parents demanded dowry. The Hon'ble Apex Court

emphasized that "cruelty" can have no fixed definition.

33. According to the Hon'ble Apex Court, "cruelty" is the "conduct in

relation to or in respect of matrimonial conduct in respect of matrimonial

obligations". It is the conduct which adversely affects the spouse. Such

cruelty can be either "mental" or "physical", intentional or unintentional.

For example, unintentionally waking your spouse up in the middle of the

night may be mental cruelty; intention is not an essential element of

cruelty but it may be present. Physical cruelty is less ambiguous and more

"a question of fact and degree."

34. 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."

35. 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.

36. 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

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while he was conducting a cross-examination. The Hon'ble Apex Court

held these allegations against the husband to constitute "cruelty".

37. In Vijaykumar Ramchandra Bhate v. Neela Vijay Kumar Bhate, (2003)6

SCC 334 the Hon'ble Apex Court has observed by taking into

consideration the allegations levelled by the husband in his written

statement that his wife was "unchaste" and had indecent familiarity with a

person outside wedlock and that his wife was having an extramarital

affair. These allegations, given the context of an educated Indian woman,

were held to constitute "cruelty" itself.

38. 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.

39. 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.

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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 observed in Gollins v. Gollins : (All ER p. 972 G- H) '... In matrimonial affairs we are not dealing with objective standards, it is not a matrimonial offence to fall below the standard of the reasonable man (or the reasonable woman). We are dealing with this man or this woman.'"

40. 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

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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.

41. 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.

42. Thus, 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.

43. Since desertion has also been taken as ground therefore, the definition of

"desertion" is required to be referred herein as defined under explanation

part of Section 13 which means the desertion of the petitioner by the other

party to the marriage without reasonable cause and without the consent or

against the wish of such party, and includes the willful neglect of the

petitioner by the other party to the marriage.

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44. Rayden on Divorce which is a standard work on the subject at p. 128 (6th

Edn.) has summarised the case-law on the subject in these terms:

"Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party."

The legal position has been admirably summarised in paras-453

and 454 at pp. 241 to 243 of Halsbury's Laws of England (3rd Edn.), Vol.

12, in the following words:

"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.

Desertion is not the withdrawal from a place but from a state of

things, for what the law seeks to enforce is the recognition and discharge

of the common obligations of the married state; the state of things may

usually be termed, for short, 'the home'. There can be desertion without

previous cohabitation by the parties, or without the marriage having been

consummated. The person who actually withdraws from cohabitation is

not necessarily the deserting party. The fact that a husband makes an

allowance to a wife whom he has abandoned is no answer to a charge of

desertion.

45. The offence of desertion is a course of conduct which exists independently

of its duration, but as a ground for divorce it must exist for a period of at

least two years immediately preceding the presentation of the petition or,

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where the offence appears as a cross-charge, of the answer. 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.

46. It is, thus, evident from the aforesaid reference of meaning of desertion

that the quality of permanence is one of the essential elements which

differentiates desertion from wilful separation. If a spouse abandons the

other spouse in a state of temporary passion, for example, anger or

disgust, without intending permanently to cease cohabitation, it will not

amount to desertion. For the offence of desertion, so far as the deserting

spouse is concerned, two essential conditions must be there, namely, (1)

the factum of separation, and (2) the intention to bring cohabitation

permanently to an end.

47. Similarly, two elements are essential so far as the deserted spouse is

concerned: (1) the absence of consent, and (2) absence of conduct giving

reasonable cause to the spouse leaving the matrimonial home to form the

necessary intention aforesaid. In such a situation, the party who is filing

for divorce will have the burden of proving those elements.

48. Recently also, the Hon'ble Apex Court in Debananda Tamuli vs.

Kakumoni Kataky, (2022) 5 SCC 459 has considered the definition of

'desertion' on the basis of the judgment rendered by the Hon'ble Apex

Court in Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40

which has been consistently followed in several decisions of this Court.

The law consistently laid down by this Court is that desertion means the

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intentional abandonment of one spouse by the other without the consent of

the other and without a reasonable cause. The deserted spouse must prove

that there is a factum of separation and there is an intention on the part of

deserting spouse to bring the cohabitation to a permanent end. In other

words, there should be animus deserendi on the part of the deserting

spouse. There must be an absence of consent on the part of the deserted

spouse and the conduct of the deserted spouse should not give a

reasonable cause to the deserting spouse to leave the matrimonial home.

The view taken by the Hon'ble Apex Court has been incorporated in the

Explanation added to sub-section (1) of Section 13 by Act 68 of 1976. The

said Explanation reads thus:

"13. Divorce.--(1) ...

Explanation.--In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly."

49. This Court, on the premise of the interpretation of the word "cruelty" and

"desertion" has considered the evidences of the witnesses as has been

incorporated by the learned Court in the impugned judgment.

50. Herein, the ground of cruelty has been taken by the appellant/petitioner

that the respondent-wife always used to quarrel with the family members

in different ways and she used to abuse her in-laws in filthy language as

also she had no respect for her in-laws.

51. It is evident from impugned judgment that in order to substantiate the

aforesaid fact, no material or cogent evidence has been put-forth before

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the learned Family Court, as such, the said ground, therefore, cannot be

said to be sufficient to prove the ground of cruelty.

52. It needs to refer herein that from perusal of impugned order that the

petitioner, appellant herein has not been able to show any specific incident

of abuse and assault by the respondent-wife and whatever allegations have

been made by the petitioner, appellant herein against the respondent-wife

seems nothing more than the wear and tear of a married life. After

marriage, the appellant herein and the respondent-wife were living

together in the same house happily.

53. Further, the petitioner, appellant herein has himself admitted in para-3 of

his examination-in-chief that after marriage, his wife, Usha Devi had lived

well with him till the year, 2017 and was leading their conjugal life

peacefully and a child was also born from their wedlock.

54. Further from the record, it is evident from the oral testimony of P.W.1 and

P.W.2 that the respondent is not a quarrelsome lady and she does not

quarrel with anyone in her locality. P.W.1 has deposed at para-18 and 21

of his cross-examination itself that the respondent-wife is still living in the

house of the petitioner and the petitioner used to assault the respondent-

wife. P.W.2 has also admitted in para-18 of his examination that the

respondent lives in her matrimonial home properly.

55. Thus, in view of the testimony of the aforesaid P.Ws, the entire story of

alleged cruelty of respondent-wife is being completely demolished.

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56. Thus, on the factual aspect aforesaid, it is evident that appellant/husband

has failed to produce any material evidence in order to substantiate his

claim of cruelty against the respondent wife.

57. The desertion has also been taken as a ground but the desertion has been

defined and interpreted by the Hon'ble Apex Court that the desertion will

be said to be desertion if either of the party, on his/her own wish, has left

the matrimonial house. But no such evidence has been produced by the

appellant/petitioner to prove the element of desertion showing that the

respondent-wife has left her matrimonial house without any reasonable

cause.

58. Reference of Section 23(1)(a) of the Hindu Marriage Act needs to be

referred herein wherein it has been provided that one cannot be allowed to

take advantage of its own wrong. For ready reference, Section 23(1) reads

as under:

"23. Decree in proceedings.--(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that

(a) any of the grounds for granting relief exists and the petitioner 2 [except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause

(ii) of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

(b) where the ground of the petition is the ground specified in clause

(i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and

[(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and]

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(c) 4 [the petition (not being a petition presented under section 11)] is not presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and

(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about reconciliation between the parties: 5

[Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause

(vii) of sub-section (1) of section 13.]

[(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.

(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.]"

59. For proving desertion, it is onus upon the party who is taking the ground

for seeking dissolution of marriage is to substantiate that the party has left

the house on her own. Contrary to that, if the party has been compelled to

leave the house on the basis of cruelty which has been meted out to her

then the same will not come under the fold of desertion and in that view of

the matter, Section 23(1)(a) of Hindu Marriage Act is to be made

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applicable that if the husband is at wrong, he cannot be allowed to take

advantage of his own wrong.

60. This Court, on consideration of the impugned judgment as also the

material available on record, has found that no such cogent evidence has

been produced by the husband to prove the ground of desertion and as per