[Cites 18, Cited by 0]
Jharkhand High Court
Sushma Kumari vs Amit Rakhit Son Of Late Tilak Rakhit on 26 March, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No.246 of 2024
Sushma Kumari, aged about 31 years, wife of Amit Rakhit
and daughter of Mahadev Prasad, Permanent and Present
R/o H.No. 169, A-Block, Line No. 9, Tuiladungri, PO & PS
Golmuri near Kali Mandir, Jamshedpur, Jharkhand.
... ... Appellant/Appellant
Versus
Amit Rakhit son of Late Tilak Rakhit, Permanent and
Present resident of C/o Amit Kumar Simgh, Zone No. 7,
Birsanagar, Near Golmuri Club, P.O. & P.S.-Golmuri,
Jamshedpur, Jharkhand.
... ...Opp. Party/Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Ms. Neeharika Mazumdar, Advocate
For the Respondent:
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C.A.V. on 20th March, 2026 Pronounced on 26/03/2026
Per Sujit Narayan Prasad, J.
1. The instant appeal under Section 19(1) of the Family Court
Act, 1984 is directed against the judgment dated 1st August,
2024 and decree dated 9th August, 2024 passed by the
learned Principal Judge, Family Court, Jamshedpur in
Original Suit No. 620 of 2021, whereby and whereunder, the
suit filed by the appellant - [wife] for dissolution of marriage
by decree of divorce u/s 13(1)(ib) of Hindu Marriage Act,
1955 against respondent/husband, has been dismissed.
2. In brief, the appellant's case is that the marriage of the
appellant-wife and respondent-husband was solemnized on
14.8.2014 according to Hindu rites and custom at Shitla
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Mandir, Jamshedpur. The marriage was allegedly love-cum-
arrange marriage as well as inter-caste marriage. After
solemnization of marriage both parties started living together
with in-laws members of the respondent. On 2nd June, 2015
the couple were blessed with a baby girl child, namely,
Ananya Rakhit and further on 5th July 2017, they were
blessed with another girl baby child, namely, Mahi Rakhit.
3. It is the case of the appellant that after the birth of the girls,
temperament and taste of the respondent changed and he
was not engaging himself in matrimonial duties against the
appellant, however, the appellant tried to make the
respondent understand his duties but respondent never took
any interest. The mother-in-law did not even try to resolve
the differences but also influenced the respondent and
appreciate the respondent bitter act against the appellant.
Whenever the appellant asked money for medical expenses
the respondent raised objection and started quarrelling with
filthy language and mother of respondent also encouraged
which disturbed the peaceful environment of the family. In
the year 2018, relationship between the appellant and
respondent become so bitter that they even do not to talk
with each other and it has become respondent's usual day
routine to quarrel with filthy language with the appellant
which also disturbed the environment of the house and the
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mother of the respondent always done job of pouring oil in
the flame.
4. Thereafter, the respondent started to take alcohol and used
to curse her about the two-girl child which was supported by
her mother-in-law and due to behaviour and temperament of
the respondent, the appellant made herself separated under
the same roof and the conjugal life of both the parties came
to an end on 23.06.2018. On 13.6.2019 when the appellant
came home from the hospital, without any appropriate
reason, the respondent started quarrelling with filthy
languages and when the appellant tried to make the
situation calm the respondent and his mother started
beating her with fist and blows and pushed her out from the
house.
5. It is further case of the appellant that due to all these events
and regular quarrel between the parties the appellant
decided to get separated and started living separately of the
appellant's parent house since 14th July 2019 so that both
the parties live their life peacefully. On 23rd July, 2019 the
respondent along with his mother came to the house of
appellant and started quarrelling with filthy languages and
bitten her with fist and blows. All these events put a deep
effect on the mind of the appellant and for this the appellant
had to undergo for medical treatment of depression and
hypertension. Further it is the case of the appellant that
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from 2018 the conjugal life between the parties was over and
they were living separately from each other under same roof
and from 14th July, 2019 due to so much of cruelty inflicted
by the respondent upon the appellant, the appellant
separated herself from the respondent and started living
separately from the respondent. Under such circumstances,
the appellant filed the suit being Original Suit No. 620 of
2021 u/s 13(1)(ib) of Hindu Marriage Act, 1955 for decree of
divorce.
6. Before the family court, Respondent appeared and filed
written statement denying the allegation leveled against him.
However, the factum of marriage has not been disputed and
admitted the fact that the marriage was a love-cum-arrange
marriage as well as inter-caste marriage and after
solemnization of marriage both the parties started living
together at the house of the respondent and from their
wedlock two girls were born.
7. On the contrary, allegation has been leveled that it is the
appellant who always tortured the respondent mentally,
physically and economically and all the allegations are false
leveled by the appellant is false and as a matter of fact, the
appellant herself along with her daughters left the house of
the respondent on 13.9.2021 for the reason that on
13.9.2021, mother of the appellant came to the house of
respondent and in evening when the respondent came to the
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home, the appellant demanded Rs.20,000/- for her mother
which the appellant could not give as the respondent had no
money in the bank, upon this the appellant used filthy
languages and left the house of the respondent. Further
ground was taken that there is no evidence of separation
and no evidence regarding cruelty as such the appellant is
not entitled for decree of divorce u/s 13(1)(ib) of Hindu
Marriage Act.
8. Before the family court, the matter of the parties was
referred to Mediation Centre, Jamshedpur but as per
mediation report dated 16.05.2023 medication remained
unsettled
9. On the basis of pleadings available on record, the learned
Family Court, mainly framed the issue for consideration as
to whether the marriage of the appellant and respondent is
fit to be dissolved on the ground of desertion u/s 13(1) (i-b)
of Hindu Marriage Act 1955; and accordingly evidence was
adduced on behalf of parties.
10. In order to establish their case, from the side of the
appellant following four witnesses have been examined; they
are -P.W. 1-Sushma Kumari (Appellant herself); P.W. 2-
Radha Devi (Mother of the appellant); P.W. 3-Birendra
Kumar (father of the appellant); and Mukesh Ram (Brother
of the appellant). On behalf of respondent, no oral or
documentary evidence has been adduced.
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11. The learned Principal Judge, Family Court, Jamshedpur
after appreciating the evidence adduced on behalf of parties,
came to the conclusion that the appellant-wife, the appellant
herein, has not been able to prove her case against the
respondent-husband.
12. Accordingly, the suit for decree of divorce preferred by the
appellant wife was dismissed, against which the instant
appeal has been filed.
13. After filing of the appeal, the Co-ordinate Bench has issued
notice upon the respondent-husband vide order dated
20.12.2024 both by registered post and ordinary process.
14. But as per office note dated 20.08.2025, it appears that no
such person exists at the given address, as such fresh steps
for service of notice was taken. For ready reference, order
dated 25.08.2025 is quoted as under:
1. In pursuance of the order dated 20.12.2024, notice was
issued to the sole respondent. However, as per the office note
dated 20.08.2025, it appears that no such person exists at the
given address.
2. Learned counsel appearing for the appellant, in view of the
aforesaid, has submitted that he may be allowed to take fresh
service of notice upon the sole respondent on his present and
correct address.
3. In view thereof, let fresh notice be issued upon the sole
respondent on his present and correct address under registered
cover with A/D as well as ordinary process for which requisites
etc. must be filed within a week.
15. Thereafter, the matter was taken up on 24th November,
2025. This Court perused the office note dated
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20.11.2025,wherefrom it reflects that service report has been
received showing that notice has been received by his
mother, namely, Jharna Rakshit, jointness has been
mentioned therein, therefore, the notice was held to be
validly served. However, on that date none appeared on
behalf of respondent-husband, as such with a view to give
more chance, the matter was adjourned to be listed
09.12.2025. For ready reference, order dated 24.11.2025 is
quoted as under:
"1. This Court has passed an order dated 25.8.2025 for
issuance of fresh notice upon the sole respondent
2. Office note dated 20.11.2025 suggests that service report
has been received showing that notice has been received by
his mother, namely, Jharna Rakshit, jointness has been
mentioned therein.
3. In the above circumstances, this court is of the view that
notice has validly been served upon the respondent-husband,
but today no one has appeared on his behalf.
4. With a view to give one more chance to the respondent-
husband, this matter is adjourned to be listed on 09.12.2025."
16. Thereafter, the matter was taken up on 09.12.2025, but
despite of service of notice and opportunity having been
granted since no appearance was made on behalf of
respondent-husband, as such matter was decided to be
proceeded for further hearing. For ready reference, relevant
portion of order dated 09.12.2025 is quoted as under:
"6.This Court, while passing the order dated 24.11.2025,
accepted that the notice was validly served upon the
respondent-husband. However, one more opportunity was
given to the respondent-husband to put his appearance, but
there is no appearance as yet.
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7. Considering the same, the matter is to be proceeded for
further hearing.
8. Admit.
9. Call for the trial Court records."
Submission of the learned counsel for the appellant-wife:
17. It has been contended on behalf of the appellant that the
factual aspect which was available before the learned family
court supported by the evidences adduced on behalf of the
appellant has not properly been considered and as such, the
judgment impugned is perverse, hence, not sustainable in
the eyes of law.
18. It has been submitted that the issue of cruelty has not been
taken into consideration in the right perspective.
19. Submission has been made that the judgment passed by
learned court below is perverse in the eye of law as the
husband has committed mental as also the physical cruelty
towards the appellant by continuous torturing the appellant.
20. It has been submitted that admittedly the marriage of the
appellant and respondent was love-cum-arrange marriage
but after she born two daughters, the behavior of the
husband as also the in-laws changed completely. Her
mother-in-law did not even try to resolve the differences but
also influenced the respondent and appreciate the
respondent bitter act against the appellant. It has become
the habit of the respondent-husband to quarrel with filthy
language after taking alcohol and mother of respondent also
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encouraged which disturbed the peaceful environment of the
family.
21. Further submission has been made that due to behaviour
and temperament of the respondent, the appellant made
herself separated under the same roof and the conjugal life
of both the parties came to an end on 23rd June, 2018.
22. It has been submitted that the respondent used to quarrel
using filthy languages and when the appellant tried to make
the situation calm the respondent and his mother started
beating her with fist and blows and pushed her out from the
house. For the reasons aforesaid, the appellant decided to
get separated and started living separately of the appellant's
parents house since 14th July 2019 so that both the parties
live their life peacefully. But, the learned family court
without taking into consideration these facts has come to
the conclusion that the there are no sufficient evidence to
prove that the act of the respondent was so cruel to live
along with him and further respondent compelled the
appellant to leave her matrimonial house, thus, there is no
ground for grant of decree of divorce by way of desertion is
made out.
23. Submission has been made that the relationship of husband
and wife is on the thread of trust which itself has been
broken and there is no chance of re-union.
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24. Learned counsel for the appellant, based upon the aforesaid
grounds, has submitted that the judgment impugned suffers
from perversity, as such, is not sustainable in the eyes of
law.
Analysis:
25. This Court has heard the learned counsel for the appellant
and gone through the finding recorded by the learned Family
Judge in the impugned judgment as also the trial court
record.
26. Before entering into merit of the case it needs to refer herein
the conduct of the respondent-husband in participation of
the court proceeding before this Court as also before the
learned family court. Though, after issuance of notice, the
respondent-husband appeared before the learned trial court
and filed written statement but in spite of sufficient
opportunity having been granted by the learned family court,
he did not produce any oral or documentary evidence in
support of his case. Furthermore, though this Court case
has been filed in the year 2024 and despite several
opportunity having been granted to the respondent-husband
and notice having been validly served to him, he choose not
to appear. Therefore, this Court had to proceed only with the
material available on record and counter affidavit filed by
him before the learned family court and other material
available on record.
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27. Now coming to the merit of the case, the admitted fact herein
is that the suit for divorce has been filed on the ground of
desertion i.e., by filing an application under Section 13 (1) (i-
b) of the Hindu Marriage Act, 1955 and accordingly, issues
have been framed and decided against the appellant/wife.
Although the evidence has been led and cruelty has also
been alleged by the petitioner/appellant wife but the suit
was filed only on the ground of desertion, however, the
ground of desertion has been made of cruelty meted out to
her.
28. This Court, in order to appreciate the testimony available on
record, has gone through the testimonies of the witnesses.
29. PW-1, Sushma Kumari is the appellant-wife herself, who
has stated in her evidence on oath that respondent is her
husband. Their marriage was solemnized on 14.8.2014
according to Hindu rites and custom at Shitla Mandir,
Jamshedpur. On 2nd June, 2015 the couple were blessed
with one baby girl child namely Ananya Rakhit and further
on 5th July, 2017 another girl baby child namely Mahi
Rakhit. After birth of second girl child the behaviour of the
respondent changed towards the appellant and children and
he was not fulfilling his responsibility. The appellant tried to
make the respondent understand him but behaviour of the
respondent could not be changed. The mother-in-law not
even tried to resolve the differences but also influenced the
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respondent and appreciated the respondent bitter act
against the appellant. In the year 2018, relationship between
the appellant and respondent become so bitter that they not
even to talk with each other and it has become respondent's
usual day routine to quarrel with filthy language with the
appellant which also disturbed the environment of house
and the mother of the respondent always done job of pouring
oil in the flame. The respondent usually after taking alcohol
used to curse her about the two girl child and he was
supported by his mother and due to behaviour and
temperament of the respondent the appellant made herself
separated under the same roof and the conjugal life of both
the parties came to an end on 23rd June, 2018. Further this
witness explained that on 13.6.2019 the respondent after
consuming liquor beaten her without any reason, however
she tried to make him understand but it was worthless and
on 14.7.2019 she came to her father's house after leaving
the house of the respondent and started to reside here along
with her children and since then there is no connectivity in
between her and her husband.
30. During cross-examination she explained that at present she
has been residing at her parents house and has been in job
for last three years and now she does not want to reside with
her husband (respondent). Further she explained that she is
capable to maintain her two children and has not filed any
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case of maintenance and in future will not file case for
maintenance for her two daughters who are with her. She
also explained that regarding assault by the husband
(respondent) she has not filed any case in any police station
or Court, but it is not correct that out of anger she
(appellant) left her matrimonial house on 13.9.2021 because
the respondent could not give Rs.20,000/- to her mother
and it is also not correct that she wants to remarry after
taking divorce.
31. PW-2, Radha Devi is the mother of appellant. She reiterated
the facts as mentioned by the appellant in her deposition.
Regarding the incident of 13.6.2019 she explained that the
respondent was beating her daughter after consuming
liquor. She along with other family members reached there
after getting information from the appellant and tried to
convince the respondent but he was not ready to understand
and after being tortured by the respondent the appellant has
come on 14.7.2019 to the house of this witness and the
respondent never tried to establish conjugal relationship.
32. During cross-examination she explained that her daughter
did marriage as per her own will and it was without dowry.
She also explained that her daughter does not want to go to
her matrimonial house and it is not correct that her
daughter is employed, hence, she does not want to go to her
matrimonial house.
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33. PW- 3, Birendra Kumar explained in his evidence on oath
that he is friend of appellant's father. He corroborated the
fact of marriage, date of marriage, birth of the children from
the wedlock of the appellant and respondent He also
reiterated the facts as stated by the mother of the appellant.
During cross-examination he explained that he is the friend
of appellant father and he was present in the marriage of the
appellant as well as has not seen any incident of assault
happened in between the appellant and the respondent and
he never took attempt to reconcile the dispute.
34. P.W. 4 Mukesh Ram is the brother of the appellant and in
his deposition on affidavit he reiterated the statements of
witness no. 2.
35. During cross-examination this witness explained that it was
a love marriage and after 6 to 7 months of marriage she
came at her parents house and at that time she did not
complaint against her husband. He also explained that the
appellant was in job prior to her marriage and still she is in
job and regarding the torturous act no complaint was filed at
any place and it is not correct that since Rs.20,000/- was
not given by the respondent to the appellant's mother on
13.9.2021 so her mother abused the respondent and return
back with the appellant.
36. On the basis of the pleading of the parties, the learned
Principal Family Judge had framed issues for proper
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determination of the lis and after due appreciation of the
ocular as well as documentary evidence, the suit filed by the
appellant-appellant [wife] for dissolution of marriage by
decree of divorce u/s 13(1)(i-b) of Hindu Marriage Act, 1955
against respondent/husband, has been dismissed, against
which the present appeal has been preferred.
37. It requires to refer herein that since appellate jurisdiction
has been invoked herein, therefore, before entering into
merit of the case, at this juncture it would be purposeful to
discuss the appellate jurisdiction of the High Court.
38. It needs to refer herein that under section 7 of the Family
Courts Act, the Family Court shall have and exercise all the
jurisdiction exercisable by any District Court or any Sub-
ordinate Civil Court under any law for the time being in force
in respect of suits and proceedings of the nature which are
described in the explanation to section 7(1).
39. Sub-section (1) to section 19 of the Family Courts Act
provides that an appeal shall lie from every judgment or
order not being an interlocutory order of a Family Court to
the High Court "both on facts and on law". Therefore, section
19 of the Family Courts Act is parallel to section 96 of the
Code of Civil Procedure, the scope of which has been dealt
with by the Hon'ble Apex Court in series of judgments.
40. The law is well settled that the High Court in a First Appeal
can examine every question of law and fact which arises in
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the facts of the case and has powers to affirm, reverse or
modify the judgment under question. In "Jagdish Singh v.
Madhuri Devi" (2008) 10 SCC 497 the Hon'ble Supreme
Court observed that it is lawful for the High Court acting as
the First Appellate Court to enter into not only questions of
law but questions of fact as well and the appellate Court
therefore can reappraise, reappreciate and review the entire
evidence and can come to its own conclusion. For ready
reference the relevant paragraph of the said judgment is
being quoted as under:
"It is no doubt true that the High Court was exercising power as
the first appellate court and hence it was open to the Court to
enter into not only questions of law but questions of fact as well.
It is settled law that an appeal is a continuation of suit. An
appeal thus is a rehearing of the main matter and the appellate
court can reappraise, reappreciate and review the entire
evidence--oral as well as documentary--and can come to its own
conclusion."
41. Herein, the learned counsel for the appellant has argued
that the evidence of cruelty has not properly been considered
and as such, the judgment suffers from perversity, hence,
not sustainable in the eyes of law.
42. From the pleadings available on record and the arguments
advanced by the learned counsel, the issue which requires
consideration is as to:
"Whether the judgment and decree passed by the
learned family court denying the decree of divorce on
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the ground of cruelty under Section 13(1)(i-b) of the
Hindu Marriage Act requires interference?"
43. This Court, while appreciating the argument advanced on
behalf of learned counsel 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 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]
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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.
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 EncyclopedicEdn.)
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."
44. Herein, submission has been made on behalf of the
appellant that all the witnesses supported the appellant‟s
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case and it is well established that due to cruel act of the
respondent the appellant had to leave her matrimonial
house and now she is residing at her parents house with her
two daughters. There is no evidence that the respondent
took any effort to settle the matter. Hence, the appellant is
entitled to get decree of divorce u/s 13 (1) (ib) of Hindu
Marriage Act
45. While on the other hand, the case of the respondent as made
out before the learned family court is that from the evidence
of the appellant and her mother, it is evident that the
appellant at her own will left her matrimonial house without
any cause and still the respondent (husband) is willing to
maintain relationship and wants his wife and daughters to
live with him as well as there is no evidence of any cruel act
allegedly committed by him towards the appellant and that's
why she did not file case u/s 13(1)(i-a) of Hindu Marriage Act
or any petition in Court or police station. Lastly it is
submitted that the appellant is in job and wants to live alone
without her husband and does not what to fulfil the
responsibilities towards her matrimonial house.
46. Herein, since the appellant has sought for a relief of
dissolution of her marriage on the ground of desertion.
Therefore, this Court before proceeding further needs to go
the term desertion.
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47. The term desertion is not defined in the Act and it will
depend upon the facts and circumstances of each case as to
whether actually the desertion has been committed or not?
48. Now coming to the issue of desertion, which is also taken as
a ground for decree of divorce.
49. The word „desertion' has been given in Explanation to
Section 13 (1) 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 wilfull neglect of the petitioner by the other
party to the marriage, and its grammatical variations and
cognate expressions shall be construed accordingly.
50. 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 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.
51. 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
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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."
52. 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.
53. 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.
54. 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.
55. Desertion as a ground of divorce differs from the statutory
grounds of adultery and cruelty in that the offence founding
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the cause of action of desertion is not complete, but is
inchoate, until the suit is constituted, desertion is a
continuing offence.
56. 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 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.
57. 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.
58. 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.
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59. The law consistently has been laid down 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 deserted spouse
and the conduct of the deserted spouse should not give a
reasonable cause to the deserting spouse to leave the
matrimonial home.
60. This Court, based upon the aforesaid discussions on the
issue of desertion, and from the deposition of the appellant
has found that the marriage of the parties is alleged to be
love-cum-arrange marriage solemnized on 14.8.2014. On 2nd
June, 2015 and further on 5th July, 2017 they have blessed
with two baby girl, respectively. After birth of second child to
be girl child the behaviour of the respondent-husband
changed towards the appellant and children. The
relationship between the parties became strained to the
extent that the appellant and respondent become not even
used to talk with each other in one roof. Further, it has
become respondent's usual day routine to quarrel with filthy
language with the appellant which also disturbed the
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environment of house. The respondent usually after taking
alcohol used to curse her about the two-girl child and he
was supported by his mother and due to behaviour and
temperament of the respondent the appellant made herself
separated under the same roof. Further, on 13.6.2019 the
respondent beaten the appellant without any reason and
therefore, on 14.7.2019 she came to her father's house after
leaving the house of the respondent and started to reside
with her parents along with her children and since then
there is no connectivity in between her and her husband.
The version of the appellant has been supported by other
witnesses produced on her behalf.
61. From the testimonies of the appellant-wife, it is evident that
due to the fact that appellant born two daughters she was
subjected to cruelty by her husband which was support by
her mother-in-law and the cruelty meted out the appellant
was to the extent that it was almost unbearable for the
appellant to reside with her husband.
62. Further, before this Court, in spite of valid service of notice,
the respondent-husband choose not to appear. Furthermore,
it appears that he did not make any fruitful effort to save the
marriage and only appeared before the learned family court
to defend himself .
63. On the basis of the aforesaid settled position of law, it is
considered view of this Court that in the case at hand, it is
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behavior of the respondent-husband and mother-in-law of
the appellant, it was next to impossible to live together with
respondent/ husband.
64. On the basis of the discussion made hereinabove, this Court
is of the considered view that the conduct of the respondent-
husband has showed that it is the humiliation caused by
him and his family members that has forced appellant-wife
to leave her matrimonial house as it was almost impossible
for the appellant-wife to live with the respondent-husband
where the thread of trust has already been broken.
Relationship of wife and husband is based on the trust and
respect to have upon each other and if it is broken it is non-
repairable as the trust is the foundation of marriage.
Marriage is a relationship built on mutual trust,
companionship and shared experiences.
65. This Court, after discussing the aforesaid factual aspect
along with the settled legal position as discussed and
referred hereinabove in the preceding paragraphs and
adverting to the consideration made by the learned Family
Judge in the impugned judgment has found therefrom that
the issue of element of desertion by the appellant-wife has
not been properly considered by the learned Family Judge.
66. Accordingly, issue as framed by this Court is decided in
favour of the appellant-wife.
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67. This Court, on consideration of the aforesaid discussion, is
of the view that the impugned judgment and decree passed
by the learned Family Judge is coming under the fold of
perversity, since, the conscious consideration has not been
made to the evidences available on record, as would be
evident from the impugned judgment.
68. Consequent to the aforesaid, the judgment dated 1st August,
2024 and decree dated 9th August, 2024 passed by the
learned Principal Judge, Family Court, Jamshedpur in
Original Suit No. 620 of 2021, is hereby quashed and set
aside.
69. Accordingly, the instant appeal stands allowed.
70. Office to proceed accordingly.
71. Pending interlocutory application(s), if any, also stands
disposed of.
I Agree (Sujit Narayan Prasad, J.)
(Sanjay Prasad, J.) (Sanjay Prasad, J.)
26th March, 2026
A.F.R
Alankar/-
