[Cites 14, Cited by 0]
Jharkhand High Court
Prabha Devi vs Gopal Sahu on 12 March, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No.169 of 2022
----- -
Prabha Devi, Aged about 37 years, wife of Gopal Sahu,
Resident of Village Banjar Kisko, P.O. Kisko, P.S. Kisko,
District Lohardaga. ... ... Appellant/Plaintiff
Versus
Gopal Sahu, son of Late Bital Sahu Aged about 43 Years,
Resident of Village Banjar Kisko, P.O. Kisko, P.S. Kisko,
District Lohardaga. ... ... Respondent/Defendant
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
.....
For the Appellant : Mrs. Kismanti Minz, Advocate
For the Respondent : Mr. Sumit Prakash, Advocate
.....
C.A.V. 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
Court Act, 1984 is directed against the judgment dated
27.08.2022 [decree signed on 31.08.2022] passed by the
learned Principal Judge, Family Court, Lohardaga in Original
Suit No.36 of 2018, whereby and whereunder, the suit for
restitution of conjugal right under Section 9 of the Hindu
Marriage Act, 1955 by the plaintiff/ appellant, has been
dismissed on contest.
Factual Matrix
2. The brief facts of the case is that the marriage of
plaintiff was solemnized with defendant on 03.07.1997
before Marriage officer, Lohardaga. After marriage, she went
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to her matrimonial house and due to their wedlock two
female children were born.
3. After birth of two daughters, behaviour of O.P. and
her mother-in-law was changed and they started torturing
mentally and physically to plaintiff. After that one son and
one daughter were also born.
4. Thereafter, the defendant and his mother started
demanding Rs.5,00,000/-. When said demand was not
fulfilled the defendant and her mother in-law stopped
talking with family members of plaintiff. They also told that
we will solemnize marriage of defendant with other and
plaintiff will be live in her maika with her children.
5. The plaintiff sent her two daughters to Bachra for
study, where her mother-in-law was residing. On
10/12/2015, when demand of dowry was not fulfilled the
defendant ousted to plaintiff after abusing and beating her.
Then plaintiff went to her maika with two children. The
plaintiff went to Bachra, where her mother-in-law was living
but defendant went there and also ousted the plaintiff from
there. Then plaintiff went to village-Choreya, to her sister's
house. After that on 13.12.2015, she went to Kanal Spening
Ltd. Company, Tamil Nadu for the purpose of livelihood with
Sunita Munda, Soni Loharain, Rajmani Devi and Chavi Devi.
When this fact came in knowledge of defendant, he lodged a
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Sanha for missing of plaintiff in Chanho P.S. They also
published the said fact in newspaper. When the father of
plaintiff lodged the case against defendant regarding beating
and ousting from the house then defendant sought apology
from his father-in-law.
6. Within one month of this occurrence, the defendant
filed a suit for divorce before family court, Lohardaga on
21.01.2016 and he took away two children with him, who
were living in her maika. When the appellant returned from
Tamil Nadu, she came to know about this.
7. The said divorce suit being M.T.S no.-02/2016 was
dismissed by the Family court on 08.03.2018. On
23/08/2016, after returning from Tamilnadu, plaintiff went
to her matrimonial house then defendant started abusing
and ousted her from the house and since then the plaintiff is
living in her maika.
8. In the month of May 2018, plaintiff and his family
members went to her matrimonial house but defendant
started abusing and he has not permitted to enter in the
house. The defendant has made allegation against plaintiff
of fleeing away with Hemant Sahu, in this regard a
Panchayati was called for but defendant did not appear in
the said Panchayat.
9. Thereafter, the plaintiff filed a case of maintenance
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as O.M.C. No.-29/2018 and Complaint Case No.-04/2018,
U/s-12 & 17 of D.V. Act.
10. During pendency of M.T.S. Case No.-02/2016,
several times matter was referred to mediation Center but
the mediation failed, so she has filed the instant suit for
restitution of conjugal rights.
11. It needs to mention herein that in Original Suit
upon issuance of the notices, the defendant (the respondent
herein) has appeared and filed a written statement denying
all the allegations levelled against him by the appellant-wife.
12. The defendant appeared in the suit and filed his
written statement. The respondent/defendant in his written
statement has stated that his marriage was solemnized with
plaintiff on 03.07.1997 without any dowry. Due to wedlock
of said marriage four children were born. The defendant has
never demanded Rs.5,00,000/- as dowry.
13. He has further stated that the plaintiff is very
careless lady and does not take case of the children. On
11/12/2015, when plaintiff went to matrimonial house of
her sister situated at village-Choriya, he found that she was
missing. On that defendant lodged a missing report on
17/12/2015 in Chanho P.S.
14. On 17.01.2016, defendant saw the plaintiff coming
out from the house of Hemant Sahu where they started
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living as husband and wife.
15. He has stated that there is illegal relation of plaintiff
with Hemant Sahu. He visited to the house of defendant
during the work of agent of Sahara India. The defendant has
lodged a case against Hemant Sahu for taking away the
plaintiff and that case is pending for trial as S.T. Case No.-
101/2018.
16. It has been stated that no panchayati was called by
the defendant. The plaintiff has lodged a case for demand of
dowry against defendant and his mother and it is pending.
Thus, the suit of the plaintiff is fit to be dismissed.
Submission of behalf of the appellant-wife
17. Mrs. Kismanti Minz, learned counsel appearing for
the appellant-wife has taken the following grounds: -
(i) The judgment passed by the learned Principal Judge,
Family Court, Lohardaga is not based on material facts
of the case.
(ii) The learned court below has wrongly decided the
issues without appreciating the entire facts of the suit.
(iii) There are overwhelming evidences on record which
prove that the respondent has ousted the appellant
from her matrimonial house without any rhyme and
reason.
(iv) Learned Family Court also failed to appreciate that it is
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the respondent who has withdrawn himself the from
conjugal relationship with the appellant and therefore,
the appellant is entitled for restitution with the
respondent.
(v) It has been submitted that the evidence of the
appellant who has been examined as P.W.-1 is very
much sufficient to show that it is the respondent who
ousted her and there is a case under section 498A of
the Indian Penal Code against the respondent lodged
by the appellant.
(vi) It has been submitted that the respondent in his
evidence has much very admitted that the maintenance
has been awarded in favour of his wife and he is not
paying any amount and the Divorce suit filed by
respondent has been dismissed.
(vii) The learned Family Court is not correct in deciding
that the plaintiff is having no valid cause action of the
suit though in the plaint, several paragraphs have been
mentioned which, explicitly speaks that there are
several causes of action for filing the Restitution
Application, as the appellant is admittedly a destitute.
18. The learned counsel, based upon the aforesaid
ground, has submitted that the impugned judgment and
decree is suffering from perversity, therefore, needs
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interference.
Submission of behalf of the respondent-husband
19. Mr. Sumit Prakash, learned counsel appearing for
the respondent-husband has taken the following grounds: -
(i) There is no error or perversity in the impugned
judgement as the learned Family Judge has considered
the entire issue and on the basis of evidence as led by
the respondent-husband has passed the order
impugned as such same may not be interfered with.
(ii) The learned counsel has submitted that the appellant-
wife went away from matrimonial house without any
reason.
(iii) Learned counsel has also submitted that the appellant-
wife has lodged false case of demand of dowry against
the respondent-husband and his mother in which they
have been acquitted.
20. Learned counsel, based upon the aforesaid grounds,
has submitted that the learned Family Judge has rightly
recorded its finding that the respondent-wife has not able to
prove that defendant has ousted the plaintiff from her
matrimonial house and defendant has withdrawn himself
from the conjugal society of plaintiff without any reasonable
cause, hence, the impugned judgment cannot be said to
suffer from an error.
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Analysis:
21. We have heard the learned counsel appearing for the
parties, gone through the impugned judgment as well as the
Trial Court Records, as also the testimonies of the witnesses
and evidences available on record.
22. The learned Family Judge has formulated altogether
six issues, for ready reference the same are being quoted
hereinbelow: -
(1)- Whether the instant suit is maintainable in the present
from?
(2)- Whether any cause of action arose for the present suit
or not?
(3)- Whether the plaintiff Prabha Devi is living an
adulterous life with one Hemant Sahu?
(4)- Whether the O.P. has ousted the plaintiff from her
matrimonial home without any rhymes and reasons?
(5)-Whether the plaintiff is entitled for the decree of
restitution of her conjugal life with the O.P.?
(6)- Whether the plaintiff is entitled for any other relief(s) in
the instant suit?
23. The learned Family Judge has considered the
evidence adduced on behalf of the parties for deciding the
issues involved in Original Suit No.36 of 2018.
24. This Court, before entering into the legality and
propriety of the impugned judgment, in order to appreciate
the rival submissions, needs to discuss herein the relevant
part of the evidences adduced on behalf of the appellant-
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wife.
25. During the trial, three witnesses have been
examined on behalf of the plaintiff-wife who herself has been
examined as PW-1.
26. The plaintiff-wife as PW-1 in her evidence on oath
has fully supported her case. she has further stated that her
marriage was solemnized on 03/07/1997. Due to their
wedlock four children were born. The mother-in-law and
husband started making pressure to bring Rs. -5,00,000/-
from her maika, when demand was not fulfilled, defendant
ousted her on 10/12/2015 after abusing and beating. Due
to love marriage, the family members (Mother-father) of
plaintiff were not supporting her, so she went to Tamil Nadu
for work. On 23/08/2016 after returning from Tamil Nadu,
she went to her matrimonial house, but defendant again
ousted her after abusing and beating. After that she is living
in her maika.
In her cross-examination, she has stated that at the
time of marriage, a list of articles was prepared and that
document was in possession of husband. She cannot say
that there is signature of mother and father of defendant.
She cannot say that at present where is said
document. She has stated that she has lodged a case U/s-
498A of 1.P.C. against husband (Defendant), numbered as
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G.R.- 672/2016.
She has stated that it is false to say that there is
illegal relation with Hemant Sahu and she went to Tamil
Nadu with Hemant Sahu. She has no knowledge that in this
regard one S.T. Case No.-101/2018 is pending. She is living
separately from her husband since 10.12.2015.
27. The P.W.-2 is Ramdhani Bakhla. In his chief-
examination, he has supported the case of plaintiff.
In his cross-examination, he has stated that he
came back to village from Ranchi about one year ago. Both
parties are living separately from last four years. The
plaintiff-wife asked me for evidence, so he has come for
evidence. He has no knowledge that what case has been
lodged by plaintiff.
28. The P.W.-3 is Bande Oraon. In his chief-
examination, he has supported the case of plaintiff.
In his cross-examination, he has stated that today
Prabha Devi has called him for evidence. After preparing the
document of evidence, Prabha Devi told him to put
signature. He does not know that how much cases have
been lodged by Prabha Devi on Gopal Sahu. He has
knowledge about this case only. This case has been related
to conjugal relation of husband and wife.
29. On the other hand, the defendant-husband
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(respondent herein) has examined four witnesses including
himself.
30. The D.W.-1 is defendant Gopal Sahu. In his chief-
examination, he has reiterated his written statement.
In his cross-examination, he has stated that house
of Hemant Sahu is in front of his house. He cannot produce
any document which shows that there is relation in between
Prabha Devi and Hemant Sahu. He cannot produce any
document that the Prabha Devi went to Tamil Nadu with
Hemant Sahu.
On 11.01.2015, Prabha Devi went to the house of
his (DW-1) mother situated at Bachra. On 17.01.2015, he
had lodged a missing report of Prabha Devi in Chanho Police
Station.
He has stated that it is false to say that for which
date and time, he made allegation against Hemant Sahu, at
that time he was doing work at Delhi.
He has further stated that an order of maintenance
was passed in favour of his wife but he is not paying any
maintenance amount to his wife.
In the year 2016, he had lodged a Divorce suit and
that was dismissed.
31. The D.W.-2 is Mandil Devi, who is mother of
defendant. In her examination-in-chief, she has supported
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the case of defendant.
In her cross-examination, she has stated that
Prabha Devi is her daughter-in-law. She is retired from
colliery. The plaintiff went to Tamil Nadu with Hemant Sahu.
She cannot produce any document about it. She lives in
Ranchi, Argora with Hemant Sahu. She cannot produce
document about it.
She has stated that it is false to say that she and
her son Gopal Sahu ousted to plaintiff after beating.
32. The D. W.-3 is Khusbu Kumari. She is daughter of
plaintiff and defendant. In her chief-examination on
affidavit, she has supported the case of defendant.
In her cross-examination, she has stated that
Prabha Devi is my mother. She lives with her father. It is
false to say that her mother was ousted from her
matrimonial house after beating.
She has further stated that she went away with
Hemant Sahu. It is false to say that plaintiff went away to
Tamil Nadu with Sunita Munda, Soni Lohrain, Rajmani Devi
and Chhavi Kumari.
She has further stated that she fled away with
Hemant Sahu.
It is false to say that when her mother returned from
Tamil Nadu her father had beaten her and demanded dowry.
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There is illegal relation in between her mother (Plaintiff) and
Hemant Sahu, so she has objection if her mother lives with
her father.
33. The D. W.-4 is Neha Kumari. She is daughter of
plaintiff and defendant. In her chief-examination on
affidavit, she has also supported the case of defendant.
In her cross-examination, she has stated that her
grandmother has retired from Bachra Colliery in the year-
2017. We are four brother and sister. We did not live with
our grandmother. We lived in Banjar Kisko.
It is false to say that her mother went to Tamil Nadu
for doing work with villagers.
She has further stated that she fled away with
Hemant Sahu. She cannot say the date of occurrence which
has been mentioned in para-5 of her chief-examination. If
her mother will live with her father then she has objection
because her mother will kill them. She does not want to
keep her mother with her father.
34. 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
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Arulvelu and Anr. vs. State [Represented by the Public
Prosecutor] and Anr., (2009) 10 SCC 206 while
elaborately discussing the word perverse has held that it is,
no doubt, true that if a finding of fact is arrived at by
ignoring or excluding relevant material or by taking into
consideration irrelevant material or if the finding so
outrageously defies logic as so to suffer from the vice of
irrationality incurring the blame of being perverse, then, the
finding is rendered infirm in law. Relevant paragraphs, i.e.,
paras-24, 25, 26 and 27 of the said judgment reads as
under:
"24. The expression "perverse" has been dealt with in
a number of cases. In Gaya Din v. Hanuman Prasad
[(2001) 1 SCC 501] this Court observed that the
expression "perverse" means that the findings of the
subordinate authority are not supported by the
evidence brought on record or they are against the
law or suffer from the vice of procedural irregularity.
25. In Parry's (Calcutta) Employees' Union v. Parry
& Co. Ltd. [AIR 1966 Cal 31] the Court observed that
"perverse finding" means a finding which is not only
against the weight of evidence but is altogether
against the evidence itself. In Triveni Rubber &
Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC
1341] the Court observed that this is not a case where
it can be said that the findings of the authorities are
based on no evidence or that they are so perverse that
no reasonable person would have arrived at those
findings.
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26. In M.S. Narayanagouda v. Girijamma [AIR 1977
Kant 58] the Court observed that any order made in
conscious violation of pleading and law is
a perverse order. In Moffett v. Gough [(1878) 1
LR 1r 331] the Court observed that a "perverse
verdict" may probably be defined as one that is not
only against the weight of evidence but is altogether
against the evidence. In Godfrey v. Godfrey [106 NW
814] the Court defined "perverse" as turned the wrong
way, not right; distorted from the right; turned away
or deviating from what is right, proper, correct, etc.
27. The expression "perverse" has been defined by
various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current
English, 6th Edn.
"Perverse.--Showing deliberate determination to
behave in a way that most people think is wrong,
unacceptable or unreasonable."
2. Longman Dictionary of Contemporary English,
International Edn.
Perverse.--Deliberately departing from what is
normal and reasonable.
3. The New Oxford Dictionary of English, 1998 Edn.
Perverse.--Law (of a verdict) against the weight of
evidence or the direction of the judge on a point of
law.
4. The New Lexicon Webster's Dictionary of the
English Language (Deluxe Encyclopedic Edn.)
Perverse.--Purposely deviating from accepted or
expected behavior or opinion; wicked or wayward;
stubborn; cross or petulant.
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5. Stroud's Judicial Dictionary of Words & Phrases,
4th Edn.
"Perverse.--A perverse verdict may probably be defined
as one that is not only against the weight of evidence
but is altogether against the evidence."
35. In the backdrop of the aforesaid factual aspect, it
would be apt to discuss the object and scope of decree of
restitution. The object of restitution decree was to bring
about cohabitation between the estranged parties so that
they could live together in the matrimonial home in amity.
The leading idea of Section 9 was to preserve the marriage.
For ready reference Section 9 of the Hindu Marriage Act is
being referred as under:-
9. Restitution of conjugal rights.-- When either the husband
or the wife has, without reasonable excuse, withdrawn from
the society of the other aggrieved party may apply, by petition
to the district court, for restitution of conjugal rights and the
court, on being satisfied of the truth of the statements made
in such petition and that there is no legal ground why the
application should not be granted, may decree restitution of
conjugal rights accordingly. [Explanation.--Where a question
arises whether there has been reasonable excuse for
withdrawal from the society, the burden of proving
reasonable excuse shall be on the person who has withdrawn
from the society.]
36. From perusal of the aforesaid provision it is evident
that if either the husband or the wife has, without
reasonable excuse, withdrawn from the society of the other,
the aggrieved party may apply, before the court concerned,
for restitution of conjugal rights and the court, on being
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satisfied of the truth of the statements made in such petition
and further taking into consideration the legal ground that
why the application should not be granted, may decree
restitution of conjugal rights accordingly.
37. Further in explanation part of the said provision, it
has been prescribed that when a question arises whether
there has been "reasonable excuse" for withdrawal from the
society, the burden of proving "reasonable excuse" shall be
on the person who has withdrawn from the society.
38. It needs to refer herein that conjugal rights may be
viewed in its proper perspective by keeping in mind the
dictionary meaning of the expression "Conjugal" wherein the
meaning of 'conjugal' as "of or pertaining to marriage or to
husband and wife in their relations to each other" is given
(Shorter Oxford English Dictionary, 3rd Edn. Vol. I page
371).
39. In the Dictionary of English Law, 1959 Edn. at page
453, Earl Jowitt defines 'conjugal rights' thus:-
"The right which husband and wife have to each other's
society and marital intercourse. The suit for restitution of
conjugal rights is a matrimonial suit, cognizable in the
Divorce Court, which is brought whenever either the
husband or the wife lives separate from the other without
any sufficient reason, in which case the court will decree
restitution of conjugal rights (Matrimonial Causes Act, 1950,
s. 15), but will not enforce it by attachment, substituting
however for attachment, if the wife be the petitioner, an order
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for periodical payments by the husband to the wife (s.22).
Conjugal rights cannot be enforced by the act of either party,
and a husband cannot seize and detain his wife by force
(R.V. Jackson [1891] 1 Q.B. 671)"
40. In India it may be borne in mind that conjugal rights
i.e. right of the husband or the wife to the society of the
other spouse is not merely creature of the statute. Such a
right is inherent in the very institution of marriage itself.
Thus, the restitution of conjugal rights is often regarded as a
matrimonial remedy. The remedy of restitution of conjugal
rights is a positive remedy that requires both parties to the
marriage to live together and cohabit.
41. Thus, the requirements of the provision of
restitution of conjugal rights are the following:-
(i) The withdrawal by the respondent from the society of
the petitioner.
(ii) The withdrawal is without any reasonable cause or
excuse or lawful ground.
(iii) There should be no other legal ground for refusal of the
relief.
(iv) The court should be satisfied about the truth of the
statement made in the petition.
42. The Hon'ble Apex Court in the case of Suman
Singh v. Sanjay Singh, (2017) 4 SCC 85 has categorically
observed that when there is evidence establishing that it was
respondent husband who withdrew from appellant's
company without any reasonable cause, appellant is entitled
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to decree for restitution of conjugal rights. For ready
reference the relevant paragraph is being quoted as under:-
"24. In our considered view, as it appears to us from perusal
of the evidence that it is the respondent who withdrew from
the appellant's company without there being any reasonable
cause to do so. Now that we have held on facts that the
respondent failed to make out any case of cruelty against the
appellant, it is clear to us that it was the respondent who
withdrew from the company of the appellant without
reasonable cause and not the vice versa.
25. In view of the foregoing discussion, the appeals succeed
and are allowed. The impugned judgment [Suman Singh v.
Sanjay Singh, 2013 SCC OnLine Del 2138 : (2013) 136 DRJ
107] is set aside. As a result, the petition filed by the
respondent (husband) under Section 13(1) of the Act seeking
dissolution of marriage is dismissed. As a consequence
thereof, the marriage between the parties is held to subsist
whereas the petition filed by the appellant against the
respondent under Section 9 of the Act seeking restitution of
conjugal rights is allowed. A decree for restitution of conjugal
rights is, accordingly, passed against the respondent.
26. We hope and trust that the parties would now realise
their duties and obligations against each other as also would
realise their joint obligations as mother and father towards
their grown up daughters. Both should, therefore, give a
quiet burial to their past deeds/acts and bitter experiences
and start living together and see that their daughters are well
settled in their respective lives. Such reunion, we feel, would
be in the interest of all family members in the long run and
will bring peace, harmony and happiness. We find that the
respondent is working as a "Caretaker" in the Government
Department (see Para 4 of his petition). He must, therefore,
be the "Caretaker" of his own family that being his first
obligation and at the same time attend to his government
duties to maintain his family."
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43. Thus, on the basis of aforesaid settled position of
law, it is evident that the court will grant a decree for
restitution of conjugal rights when one spouse has
withdrawn from the other's society without reasonable
excuse. This means if a husband or wife leaves the marital
home or refuses to live with their spouse without a
justifiable reason, the other spouse can petition the court for
this remedy. The court, if satisfied with the truth of the
petition and finding no legal barrier, may order the
withdrawing spouse to return and resume cohabitation.
44. In the backdrop of the aforesaid settled position of
law this Court is now adverting to the factual aspect of the
instant case.
45. The appellant/wife has examined herself as P.W.-1
and two other witnesses as P.W.-2 & 3. The said PW. -2 and
3 are villagers. The plaintiff (P.W.-1) has supported her
pleading in her evidence. The P.W.-2 has supported the case
of plaintiff in his chief-examination on affidavit. But in his
cross-examination, he has stated that he came back to
village from Ranchi about one year ago and the said
evidence was recorded on 30/09/2021. It means that this
witness has come to village about one year ago from
30/09/2021.Therefore it can be inferred that this witness
has come to village probably in the month of September
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2020. It is evident from record that the plaintiff/appellant
has brought the suit for restitution of conjugal right before
the learned Family Court in year 2018, so, obviously the
dispute in between the plaintiff/appellant and respondent
defendant is prior to 2018 and since the P.W.-2 has come to
village in the month of September 2020 and he get
knowledge about dispute in between plaintiff and defendant
from the plaintiff and he aforesaid evidence itself shows that
he is a hearsay witness. Further the P.W.-2 has also stated
in his evidence that the plaintiff told to him for evidence, so
he has come for evidence and he has no knowledge that
what case has been lodged by plaintiff(appellant
herein).Thus, from the aforesaid evidence of P.W.-2 it is
apparent that he had no knowledge about the present case
of plaintiff/appellant and he had deposed as plaintiff told to
him.
46. The P.W.-3 has also substantiated the case of
plaintiff/appellant in his chief-examination on affidavit. In
his cross-examination, he has stated that today Prabha Devi
has called to him for evidence. After preparing the document
of evidence (Affidavit of examination in chief) , Prabha
Devi(appellant herein) told him to put signature, and he
doesn't know that how much cases have been lodged by
Prabha Devi on Gopal Sahu and he has knowledge about
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this case only.
47. The aforesaid evidence of P.W.-3 is indicative of the
fact that he is hearsay witness and he has deposed as he
heard from plaintiff. In his cross-examination, he has stated
that his house is present on the distance of three Km. from
the house of plaintiff Prabha Devi(appellant herein).
48. Further it is evident from record that the
plaintiff/appellant has not examined to her parents or the
family member of her maika. The maika and matrimonial
house of plaintiff is in same mohalla but she has not
examined any witness of the same locality.
49. The plaintiff herself has stated in her evidence that
she has lodged a case U/s-498A of I.P.C against the
defendant and his family member. But in the said case Id.
trial court has acquitted to accused Gopal Sahu (husband
and respondent herein) and Mandil Devi (Mother of
defendant Gopal Sahu) for the offence U/s-498A/406/34 of
I.P.C. and 3/4 of D.P. Act. The aforesaid case was lodged by
the plaintiff/appellant of this suit on 21/11/2016 for the
occurrence since 2005 to 10/12/2015 and 13/12/2015 to
till date means 21/11/2016. But after trial judgment was
passed on merit and accused persons were acquitted.
50. The plaintiff/appellant has herself accepted that she
is living separately with her husband (Defendant) from
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10/12/2015. She has also stated that she went to
Tamilnadu for livelihood. Therefore, it is apparent that the
plaintiff/appellant had lodged false case against the
defendant Gopal Sahu and his mother for the offence U/s-
498A/406/34 of 1.P.C. and 3/4 of D.P. Act. Further
plaintiff/appellant had gone to Tamilnadu without telling
anything to her family members after leaving her four minor
children.
51. It is evident from the testimony of the plaintiff
wherein she had further stated that on 23/08/2016, she
went to her matrimonial house but defendant ousted to her.
But P.W.-2 & 3 have not stated in their evidences that
defendant ousted to plaintiff on 23/08/2016. Both
witnesses have not stated anything about the occurrence
dt.-23/08/2016.
52. On the other hand, the daughters of
plaintiff/appellant and defendant (DW.-3 & 4) have also
stated in their evidences that plaintiff/appellant fled away
with Hemant Sahu. They have denied that defendant ousted
to plaintiff for demand of Rs.-5,00,000/- after beating to her.
53. Further from record it is evident that the
registration of criminal case against the husband
(Defendant) and mother-in-law of plaintiff/appellant was
found false by the court concerned, is also provided a
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sufficient ground for the respondent/husband to stay away
from the company of his wife (Plaintiff/appellant).
54. On the basis of discussion made hereinabove it is
considered view of this Court that the plaintiff/appellant
has not able to prove that defendant/husband has ousted to
plaintiff/appellant from her matrimonial house and
defendant/husband has withdrawn himself from the
conjugal society of plaintiff/appellant without any
reasonable cause.
55. It requires to refer herein that the explanation to
section 9 of the Hindu Marriage Act comes into play where
the aggrieved spouse has established by leading cogent and
reliable evidence that the other spouse has withdrawn from
the conjugal society without any reason-able cause. It is well
settled that in a suit the case of the plaintiff stands on his
own strength and he or she cannot take support from the
weakness in the case of the opposite party. In the first place,
the essential condition under section 9 of the Act 1955 has
to be established by the plaintiff before the defendant then it
is incumbent upon the defendant to lead evidence in
rebuttal. Herein, the incidents of the registration of criminal
case against the husband and his family by the appellant
wife in which they were acquitted by the Id. Trial court
would have provided sufficient justification for the husband
2026:JHHC:6690-DB
to stay away from the company of his wife/appellant, even
where had the wife established a case that her husband has
refused to take her in his company.
56. It needs to refer herein settled position of law that
the test in a civil suit is that of preponderance of probability.
The existence of a fact is generally founded on a balance of
probabilities and as said by Lord Denning the degree of
probability depends on the subject matter. The
preponderance of probability is not just a possibility and
mere possibility is hardly sufficient to assume that it would
have happened. The evidence laid by the wife/appellant
through herself and two other witnesses does not indicate a
positive component and high degree of probability so as to
arrive at a conclusion that on preponderance of probability a
finding can be recorded that the husband/respondent
withdrawn himself from her society without any reasonable
excuse.
57. Further it is evident from the impugned judgment
that the learned Family Court has appreciated the evidence
tendered by both parties at length and arrived at conclusive
finding that the wife/appellant has failed to establish that
her husband/respondent had withdrawn himself from her
society without any reasonable excuse.
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58. Thus, on the basis of the discussion made
hereinabove, this Court, therefore, is of the view that the
judgment dated 27.08.2022 [decree signed on 31.08.2022]
passed by the learned Principal Judge, Family Court,
Lohardaga in Original Suit No.36 of 2018, need no
interference.
59. Accordingly, the instant appeal stands dismissed.
60. Pending interlocutory application, if any, also
stands disposed of.
I agree (Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Date: 12/03/2026
Birendra / A.F.R.
Uploaded on 13.03.2026
