Bharat Prasad Gupta vs Asha Devi
2023 Latest Caselaw 3646 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA

                      Miscellaneous Appeal No. 978 of 2018

======================================================

Bharat Prasad Gupta, Son of Baidyanath Prasad Gupta, Resident of Mohalla -

Ilamaram Chauk, Bettiah, (near Jamunaram Dharamshala), Post Office +

Police Station - Bettiah (Town), District - West Champaran.

... ... Appellant/s

Versus

Asha Devi , D/o Jhulan Prasad Gupta, Resident of Village - + Post Office -

Pohara Lachanuta, Police Station - Gaunaha,, District- West Champaran.

... ... Respondent/s

======================================================

Appearance :

For the Appellant/s : Mr. Akhileshwar Kumar Shrivastva, Advocate

For the Respondent/s : Mr. Shashank Chaudhary, Advocate

======================================================

CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI

and

HONOURABLE MR. JUSTICE JITENDRA KUMAR

CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE JITENDRA KUMAR)

Date : - 09/08/2023 Patna High Court MA No.978 of 2018 dt 09-08-2023

The present appeal has been filed impugning the

Judgment dated 20.09.2018 passed by Ld. Principal Judge,

Family Court, West Champaran at Bettiah in Divorce Petition

No. 117 of 2018 / CIS No 78 of 2013 whereby the petition of

the appellant filed under Section 13 of the Hindu Marriage Act

has been dismissed on contest.

2.1 The case of the Appellant/Plaintiff as per the

pleading is that the marriage between the Appellant/Plaintiff and

the Respondent-Wife was solemnized on 28.05.2005 as per

Hindu rites and customs and out of the wedlock two female

children Khusi Kumari and Anchal Kumari are born, who were,

at the time of presentation of the petition, five years and three

years of age respectively.

2.2 It is alleged that right from the beginning the

behaviour of the Respondent-Wife was cruel towards

Appellant/Husband and his family members. As per further

allegation, the Respondent-Wife used even to behave with the

Appellant schizophrenically. The family members of the

Appellant could not tolerate the behaviour of the Respondent-

Wife and hence, they separated themselves from the Appellant

in the year 2008. But, even after separation, the behaviour of the

Respondent-Wife did not change. She used to quarrel with the Patna High Court MA No.978 of 2018 dt 09-08-2023

Appellant/Husband and in the odd hours of night, she used to

stage dramatic action for committing suicide either by hanging

or by setting her to fire to her body or by taking poison. It is

further claimed by the Appellant/Husband in the pleading that

he tried his best to pacify the aggressive cruel and schizophrenic

action of the Respondent-Wife but in vain and the matrimonial

life of the Appellant became hell.

2.3 On 10.01.2010, the Appellant called the father-

in-law and narrated the entire acts of the Respondent-Wife to

him but the Respondent-Wife became more violent and left the

matrimonial home with her belongings extending threat to the

Petitioner.

2.4 It is further alleged that in the month of June

2010, when the Appellant went to Maike of the Respondent-

Wife to meet her and to know her desire to live with him, the

Respondent-Wife and her parents became more violent and

extended threat to kill him. They did not allow him to stay there.

The Appellant waited for three years for good message

regarding return of the Respondent-Wife to the matrimonial

home but neither Respondent-Wife nor her parents

communicated any message about restoration of the

matrimonial life and hence, there has not been cohabitation Patna High Court MA No.978 of 2018 dt 09-08-2023

between the Appellant and the Respondent-Wife for three years.

2.5 It is further alleged that on account of

misbehavior, ill treatment, cruelty and schizophrenic act of the

Respondent-Wife, the Appellant feels danger to his life and

hence, he has been advised for divorce.

3. On notice, the Respondent-Wife, who was

Defendant before the Family Court, appeared and filed her

written statement denying the allegation as made by the

Appellant against her. Instead, she claimed that after birth of

two female children, the Appellant/Husband and his family

members became inimical to her and began committing cruelty

against her for motorcycle in dowry and on 01.06.2012, she was

ousted from her matrimonial home and since then she has been

living at her Maike and her life has become hell. It is also

claimed by the Respondent-Wife that the Appellant/Husband

never tried to pacify the matter and never visited her Maike. She

further claimed that false allegations have been leveled against

her to get divorced. It is also claimed by the Respondent-Wife

that her relative tried to pacify the matter on several occasions

but all went in vain.

4. On the basis of pleadings, Ld. Family Court

framed the following issues:

Patna High Court MA No.978 of 2018 dt 09-08-2023

i) Is the case as framed maintainable ?

ii) Has the petitioner got valid cause of action for

the Case?

iii) Is the petitioner entitled for a decree of divorce

u/s 13 of the Hindu Marriage Act declaring the matrimonial

relation between the parties as dissolved?

iv) Any other relief the petitioner is entitled to ?

5. During trial, the Appellant/Plaintiff examined the

following witnesses in support of his petition :

i) P.W.- 1- Baidyanath Prasad Gupta

ii) P.W.- 2- Kanhaiya Prasad

iii) P. W.- 3- Prithvi Chandra Jaishwal

iv) P.W.-4- Bharat Prasad Gupta, who is

Appellant/Plaintiff himself.

6. During Trial, the Appellant/Plaintiff also

exhibited the following documents :

i) Exhibit-1 - web copy of the Order dated

10.11.2014 passed in Criminal Miscellaneous Case No. 15957

of 2014.

ii) Exhibit -2 - Web copy of the Order dated

14.10.2014 passed in Criminal Miscellaneous Case No.

13707 of 2014.

Patna High Court MA No.978 of 2018 dt 09-08-2023

iii) Exhibit-3 - Photocopy of the certified copy of

the Case No. 1319M of 2010.

7. The Respondent/Wife was was Defendant before

the Family Court, examined the following witnesses in

support of her defense :

i) O.P.W-1- Jhulan Prasad

ii) O.P.W.-2- Asha Devi, who is the

Respondent/Wife herself.

iii) O.P.W.-3 - Vijay Patel

iv) O.P.W.-4 -Mahendra Kumar

v) O.P.W. -5 - Gendu Sah

8.1. On perusal of the deposition made on behalf

of the Appellant/Plaintiff/husband, we find that PW-1, Baijnath

Prasad is the father of the Appellant and he has in the

examination-in-chief reiterated the allegation as made in the

divorce petition. During the cross-examination, he has deposed

that the Appellant/Husband used to visit his sasural to bring the

Respondent back to the matrimonial home, but the Respondent

did not join him there. He has further deposed that the

Respondent/Defendant is not suffering from any illness and that

is why she was never treated. He has further deposed that

information to the police was given in regard to attempt of the Patna High Court MA No.978 of 2018 dt 09-08-2023

Respondent to commit suicide and copy of such information

will be filed in the Court when available. A panchayati was also

held at his home. However, panchnama is not available. Further,

he has admitted that his son has not filed any petition before the

Court to bring the Respondent to his matrimonial home. He has

also deposed that partition between him and his son-Appellant

had taken place. However, no document was prepared regarding

Partition.

8.2 PW-2, Kanhaiya Prasad is brother of the

Appellant and in his examination-in-chief, he has supported the

allegation as made by the Appellant against his wife. During his

cross examination, he has deposed that he is the blood-brother

of the Appellant and he has further deposed that for unnatural

behaviour, the Respondent/Defendant was treated by Dr.

Divakar Prasad. However, he has further deposed that she has

not been treated for mental illness. On account of the

Respondent's attempt to commit suicide, Panchayati was held

and information was given to the police also. However, no case

was lodged. It is further deposed that the disease of insanity of

the Respondent is since prior to the marriage.

8.3 PW-3, Prithvi Chandra Jaishwal in his

examination-in-chief deposed that Appellant/Plaintiff works at Patna High Court MA No.978 of 2018 dt 09-08-2023

his readymade cloth shop. He has also supported the allegation

as made by the Appellant against his wife. During his cross

examination, he has deposed that the Appellant has been

working at his shop for the last eight years. He has also deposed

that he had visited the house of the Appellant to resolve the

disputes between the parties and one Panchnama was prepared

but the same was not signed by the Panchas. However, he was

unable to name Panchas who participated in the Panchayati. He

has further deposed that he has seen the Respondent abusing the

Appellant but he never saw the Respondent beating him.

However, he is not able to give the date of the incident. He,

however, deposed that on medical ground, he cannot say that the

Respondent is insane but she is half insane. An attempt was

made to treat her in Gorakhpur but she did not go there.

8.4 P.W-4, Bharat Prasad Gupta, who is the

Appellant himself, in his examination in chief, he has reiterated

the allegation as made against the Respondent-wife in his

pleadings. In his cross-examination, he deposed that for three

days of the marriage, the Respondent behaved well. Thereafter,

she started raising noise during the night. She was treated by Dr.

Vijay Mangal and Dr. Divakar Prasad. However, there is no

prescription of the treatment and both the aforesaid doctors are Patna High Court MA No.978 of 2018 dt 09-08-2023

physicians. He has further deposed that during her stay at the

matrimonial home, she used to beat his parents on the interval of

two days and for that Panchayati was held. However, no case

was lodged. He has admitted that he does not remember the date

of the Panchayati and he can show signatures of the Respondent

and her father on the Panchnama by filing the Panchnama. He

also admitted that he does not remember the date on which the

Respondent attempted to commit suicide and there was no

Panchayati held in this regard. He has clearly deposed that the

Respondent was not treated for mental illness. She was treated

by physician, Dr. Vijay Mangal Dev. However, medical

prescription is not available. He has further deposed that he

made an attempt to take the Respondent/Wife to his matrimonial

home. But he does not remember the date. He also deposed that

no Panchayati was held in this regard. He has also deposed that

he has been paying maintenance to the Respondent since prior

to the Maintenance Order passed by the Court.

8.5 The appellant/plaintiff has also exhibited three

documents - Exhibit - 1, Exhibit - 2 and Exhibit -3

i) Exhibit-1 is web copy of the Order dated

10.11.2014 passed in Criminal Miscellaneous Case No. 15957

of 2014, whereby cognizance order dated 31.01.2014 passed by Patna High Court MA No.978 of 2018 dt 09-08-2023

Ld. S.D.J.M, West Champaran in Complaint Case No. C1805 of

2013, lodged by Respondent/Wife against the

Appellant/Husband, has been quashed without contest in the

absence of the Respondent-Wife.

ii) Exhibit -2 is web copy of the Order dated

14.10.2014 passed in Criminal Miscellaneous Case No. 13707

of 2014, whereby cognizance Order dated 31.01.2014, passed

by Ld. S.D.J.M, West Champaran in Complaint Case No. C-

1805 of 2013, lodged by the Respondent/Wife against the family

members of the appellant, has been quashed without contest in

the absence of the Respondent-Wife.

iii) Exhibit-3 is informatory application lodged by

the Appellant before Ld. SDJM, Bettiah, West-Champaran

regarding alleged misconduct committed by the

Respondent/Wife against the Appellant and his family members.

9.1. After perusal of the witnesses examined by the

Respondent/Defendant, we find that OPW-1, Jhulan Prasad,

who is father of the Respondent in his examination in chief, has

reiterated the statement as made in the written statement of the

Respondent. During his cross examination, he deposed that a

case filed under Section 498(A) IPC by the Respondent has

been dismissed. It has further been deposed that the allegation Patna High Court MA No.978 of 2018 dt 09-08-2023

of insanity and quarrel is made against his daughter. However,

he has denied that she is of dull intellect. He has further deposed

that she was ousted from the matrimonial home. He also

deposed that the Appellant/Plaintiff has visited his house last

time in the year 2011.

9.2. PW-2, Asha Devi, who is the Respondent

herself, in her examination-in-chief, she has reiterated her

statement as made in her Written Statement. In her cross

examination, she has deposed that she is not aware whether her

case filed under 498 (A) IPC has been dismissed. She further

deposed that in her evidence, she has not got written that both

children live with her. She has further deposed that one daughter

is living with the Appellant and she has been living at her Maike

for the last 6 years and Panchayati was held to resolve the

dispute.

9.3 OPW-3, Vijay Patel, who is one of the villagers

of the Maike of the Respondent, in his examination-in-chief, he

has deposed in support of the Statement as made in the written

statement. In his cross-examination, he has deposed that the

Respondent is the sister on account of her being a villager, lives

in the neighborhood of her house and his house is two or three

houses away from the house of the Respondent. He has never Patna High Court MA No.978 of 2018 dt 09-08-2023

visited the house of the Appellant. He does not know for what

purpose a petition has been filed. There is no any Panchnama,

prepared by the parties. He has further deposed that two cases

have been filed by the Respondent, one for the maintenance and

the other case is going on because the Appellant has deserted the

Respondent and both the parties are living separately for the last

6 years and they are having two children, one of them is living

with the Appellant.

9. 4. OPW 4 - Mahendra kumar, who is the uncle of

the Respondent, in his examination-in-chief, he has supported

the statement as made in the written statement. In his cross-

examination, he has deposed that he is a trader of clothes and

nothing further significant has been deposed in his cross

examination.

9.5 OPW 5 Gendu Sah, who is a villager of the

father of the Respondent, in his examination-in-chief, he has

supported the claim made by the Respondent in her written

statement. During his cross-examination, he has deposed that 6-

7 cases are going on between the parties in regard to marriage.

He has further deposed that the Respondent has no illness. A

Panchayati was held in his presence, but Panchnama was not

prepared. He further deposed that Jhoolan Prasad, Sujeet and Patna High Court MA No.978 of 2018 dt 09-08-2023

others were Panchas and no result had come out from the

Panchayati.

10. After hearing the rival submissions of the

parties and consideration of evidence on record, Ld. Family

Court found that the divorce petition as filed by the

Appellant/Plaintiff was maintainable and he had also cause of

action to file the same. However, Ld. Family Court held that no

ground for divorce was proved by the Appellant/Plaintiff against

the Respondent/Wife to get divorce under Section 13 of the

Hindu Marriage Act.

11. Ld. Counsel for the Appellant/Husband

however submits that Ld. Family Court failed to properly

appreciate the evidence on record and erroneously found that no

ground for divorce was proved by the Appellant/Husband

whereas as per the evidence on record the Appellant has clearly

proved cruelty and desertion to get decree of divorce against the

Respondent/Wife. He also submits that the Appellant/Husband

has also proved that the Respondent/Wife was suffering from

mental disorder like schizophrenia. He refers to evidence in

regard to ill treatment of the Respondent/Wife to Appellant as

well as his family members. He also refers to attempt to

commit suicide for implicating the Appellant and his family Patna High Court MA No.978 of 2018 dt 09-08-2023

members in criminal case. In regard to desertion, he refers to

evidence showing that the Respondent/Wife left the matrimonial

home and she did not join the matrimonial home of the

Appellant/Husband for three years on the date of presentation of

the divorce petition. He also refers to evidence to show mental

disorder amounting to schizophrenia of the Respondent/Wife.

12. Per contra, Ld. Counsel for the Respondent

vehemently submits that no ground whether cruelty, desertion or

schizophrenia has been proved by the Appellant/Husband before

the Family Court. He submits that there is neither specific

pleading nor evidence with reference to date, place and nature of

the cruelty. No date of any alleged cruelty has been given either

in pleadings or evidence. Allegation regarding cruelty is

omnibus and general in nature. Regarding desertion, he submits

that there is no desertion on the part of the Respondent/Wife. In

fact, it is husband/Appellant who has deserted the

wife/Respondent, who was ousted from the matrimonial home

and no legal step was taken by the husband/Appellant for

restitution of conjugal rights by filing petition under Section 9

of the Hindu Marriage Act. He further submits that the

Respondent/Wife is also getting maintenance by order of Court.

He also submits that no cogent evidence has been adduced by Patna High Court MA No.978 of 2018 dt 09-08-2023

the Appellant/Husband to show that the Respondent/Wife is

suffering from schizophrenia or any other mental disorder. She

was never treated for such mental disorder as per the evidence

of the Appellant/Husband himself. He further submits that the

whole allegation against the Respondent/Wife is false and

baseless and the same has been made with intent to get divorce.

The fact is that after birth of two female children, the

Appellant/Husband became cruel towards the Respondent/Wife

and wanted to get rid of her. The whole allegation or evidence of

the Appellant regarding cruelty, desertion or schizophrenia falls

on the ground in view of the fact that she lived with the

Appellant/Husband for about five years after the marriage

solemnized on 28.05.2005 and gave birth to two children out of

the wedlock, though the Appellant has alleged that she became

cruel towards the Appellant and his family members just after

three days of the marriage. No man of prudence can believe

such allegation or evidence of the Appellant/Husband that wife

was cruel and schizophrenic and the Appellant/Husband could

have lived with her for about five years giving birth to two

children. There may be some wear & tear in married life but that

cannot be treated as cruelty and after birth of two female

children, no wife would like to desert her husband. In fact, in Patna High Court MA No.978 of 2018 dt 09-08-2023

her evidence, she has clearly deposed that she was ousted from

the matrimonial home and no step was taken on the part of the

appellant/husband to take her back to the matrimonial home and

she still wants to live with him.

13. In view of the aforesaid facts and circumstances

and submissions on behalf of both the parties, the following

points arise for consideration of this Court :

i) Whether the Respondent/Wife has committed

cruelty against the Appellant ?

ii) Whether she has deserted the Appellant/Husband

for more than two years ?

iii) Whether the Respondent/Wife was suffering

from schizophrenia or any mental disorder ?

14. Before we proceed to discuss the points arising

for consideration, it is imperative to see case laws or

authoritative Judicial Pronouncements regarding Burden of

Proof and Standard of Proof in matrimonial cases.

15. Hon'ble Supreme Court has elaborately

discussed the nature of burden of proof in matrimonial cases in

Dr. Narayan Ganesh Dastane Vs. Sucheta Narayan Dastane

as reported in 1975 (2) SCC 326 and law laid down herein is

still holding the field. In para 23 of the case, the Hon'ble Apex Patna High Court MA No.978 of 2018 dt 09-08-2023

Court has observed that, doubtless, the burden must lie on the

petitioner to establish his or her case for, ordinarily, the burden

lies on the party which affirms a fact, not on the party which

denies it. This principle accords with commonsense as it is so

much easier to prove a positive than a negative. The petitioner

must therefore prove that the respondent has treated him with

cruelty.

16. Coming to the Standard of Proof, we find that

some misconception had arisen on account of the use of the

words "Matrimonial Offences" to describe the misconducts of

Defendants under the Hindu Marriage Act. That is why before

authoritative decision of Hon'ble Full Bench of the Supreme

Court in Dr. Narayan Ganesh Dastane Vs. Sucheta Narayan

Dastane as reported in 1975 (2) SCC 326, there were

conflicting views. As per one view, matrimonial cases are of

civil nature and hence standard of proof in such cases would be

preponderance of probabilities whereas, as per the another

view, proof beyond reasonable doubt should be standard of

proof in matrimonial cases in view of the use of word

"matrimonial offences" in Hindu Marriage Act. However, in

Dr. Narayan Ganesh Dastane case (supra), Hon'ble Full

Bench of the Supreme Court clearly held that matrimonial Patna High Court MA No.978 of 2018 dt 09-08-2023

cases are civil in nature and preponderance of probabilities will

be standard of proof in trial of Matrimonial cases under the

Hindu Marriage Act, and not proof beyond reasonable doubt

which is applicable in criminal trials. Hon'ble Supreme Court,

in para 24 of Dr. Narayan Ganesh Dastane case (supra)

observed that the normal rule which governs civil proceedings is

that a fact can be said to be established if it is proved by a

preponderance of probabilities. This is for the reason that under

the Evidence Act, Section 3, a fact is said to be proved when the

court either believes it to exist or considers its existence so

probable that a prudent man ought, under the circumstances of

the particular case, to act upon the supposition that it exists. The

belief regarding the existence of a fact may thus be founded on a

balance of probabilities. A prudent man faced with conflicting

probabilities concerning a fact-situation will act on the

supposition that the fact exists, if on weighing the various

probabilities he finds that the preponderance is in favour of the

existence of the particular fact. As a prudent man, so the court

applies this test for finding whether a fact in issue can be said to

be proved. The first step in this process is to fix the

probabilities, the second to weigh them, though the two may

often intermingle. The impossible is weeded out at the first Patna High Court MA No.978 of 2018 dt 09-08-2023

stage, the improbable at the second. Within the wide range of

probabilities the court has often a difficult choice to make but it

is this choice which ultimately determines where the

preponderance of probabilities lies. But whether the issue is one

of cruelty or of a loan on a pronote, the test to apply is whether

on a preponderance of probabilities the relevant fact is proved.

In civil cases this, normally, is the standard of proof to apply for

finding whether the burden of proof is discharged.

17. Ruling out application of "proof beyond

reasonable doubt" in matrimonial cases, Hon'ble Supreme

Court, in para 25 of Dr. Narayan Ganesh Dastane case

(supra) has observed that the proof beyond reasonable doubt is

proof by a higher standard which generally governs criminal

trials or trials involving inquiry into issues of a quasi-criminal

nature. A criminal trial involves the liberty of the subject which

may not be taken away on a mere preponderance of

probabilities. If the probabilities are so nicely balanced that a

reasonable, not a vascillating, mind cannot find where the

preponderance lies, a doubt arises regarding the existence of the

fact to be proved and the benefit of such reasonable doubt goes

to the accused. It is wrong to import such considerations in trials

of a purely civil nature. In para 26 of Dr. Narayan Ganesh Patna High Court MA No.978 of 2018 dt 09-08-2023

Dastane case (supra), Hon'ble Apex Court has further

observed that under the Hindu Marriage Act, nowhere it is

required that the petitioner must prove his case beyond

reasonable doubt. Section 23 confers on the court the power to

pass a decree if it is "satisfied" on matters mentioned in clauses

(a) to (e) of its sub-section of (1). Considering that proceedings

under the Act are essentially of a civil nature, the word

"satisfied" must mean "satisfied on a preponderance of

probabilities" and not "satisfied beyond a reasonable doubt".

Section 23 does not alter the standard of proof in civil cases.

18. Hon'ble Supreme Court, in para 27 of Dr.

Narayan Ganesh Dastane case (supra) has further observed

that the misconception regarding the standard of proof in

matrimonial cases arises perhaps from a loose description of the

respondent's conduct in such cases as constituting a

"matrimonial offence". Acts of a spouse which are calculated to

impair the integrity of a marital union have a social significance.

To marry or not to marry and if so whom, may well be a private

affair but the freedom to break a matrimonial tie is not. The

society has a stake in the institution of marriage and therefore

the erring spouse is treated not as a mere defaulter but as an

offender. But this social philosophy, though it may have a Patna High Court MA No.978 of 2018 dt 09-08-2023

bearing on the need to have the clearest proof of an allegation

before it is accepted as a ground for the dissolution of a

marriage, has no bearing on the standard of proof in

matrimonial cases.

19. Hon'ble Apex Court in para 10 of Shobha

Rani Vs. Madhukar Reddi as reported in AIR 1988 SC 121

has also observed that considering that proceedings under the

Hindu Marriage Act is essentially of a civil nature, the word

'satisfied' must mean 'satisfied on a preponderance of

probabilities' and not 'satisfied beyond a reasonable doubt'.

Section 23 of the Act does not alter the standard of proof in civil

cases.

20. Hon'ble Supreme Court in para 10 of A.

Jayachandra Vs. Aneel Kaur as reported in 2005(2) SCC 22

has observed that in a delicate human relationship like

matrimony, one has to see the probabilities of the case. The

concept, proof beyond the shadow of doubt, is to be applied to

criminal trials and not to civil matters and certainly not to

matters of such delicate personal relationship as those of

husband and wife. Therefore, one has to see what are the

probabilities in a case and legal cruelty has to be found out, not

merely as a matter of fact, but as the effect on the mind of the Patna High Court MA No.978 of 2018 dt 09-08-2023

complainant spouse because of the acts or omissions of the

other. Cruelty may be physical or corporeal or may be mental.

In physical cruelty, there can be tangible and direct evidence,

but in the case of mental cruelty there may not at the same time

be direct evidence. In cases where there is no direct evidence,

courts are required to probe into the mental process and mental

effect of incidents that are brought out in evidence. It is in this

view that one has to consider the evidence in matrimonial

disputes.

21. Hon'ble Kerala High Court, after referring to

A. Jayachandra case (supra), in para 19 of Mohandas

Panicker Vs. Dakshayani as reported in 2013 SCC Online

Ker 24493 has observed that the principles laid down in the

above decisions reiterate that in civil cases, preponderance of

probabilities is the standard to be adopted to prove the case. No

doubt, matrimonial cases are civil proceedings and the Court

can act upon preponderance of probabilities, especially in

adultery cases, since it is difficult to get direct evidence.

                                           Point No.1

                         22.       Before          considering   whether   the

Respondent/Wife has committed cruelty against the Appellant or

not, it would be imperative to see what is the statutory Patna High Court MA No.978 of 2018 dt 09-08-2023

provisions and case laws on the subject.

23. Cruelty has been provided as one of the

grounds for divorce under Section 13(1)(i-a) of Hindu Marriage

Act. As per the provisions, the marriage can be dissolved by

decree of divorce on a petition presented by either of the parties,

if the other party has treated the petitioner with cruelty.

24. However, the word 'cruelty' used in Section

13(1)(i-a) of Hindu Marriage Act has not been defined under the

Hindu Marriage Act. But the word has been interpreted by

Hon'ble Supreme Court on several occasions.

25. The Hon'ble Supreme Court, in para 4 of

Sobha Rani Vs. Madhukar Reddi as reported in AIR 1988 SC

121, has observed that the word 'cruelty' has not been defined.

Indeed it could not have been defined. It has been used in

relation to human conduct or human behaviour. It is the conduct

in relation to or in respect of matrimonial duties and obligations.

It is a course of conduct of one which is adversely affecting the

other. The cruelty may be mental or physical, intentional or

unintentional. If it is physical the court will have no problem to

determine it. It is a question of fact and degree. If it is mental

the problem presents difficulty. First, the enquiry must begin as

to the nature of the cruel treatment. Second, the impact of such Patna High Court MA No.978 of 2018 dt 09-08-2023

treatment in the mind of the spouse. Whether it caused

reasonable apprehension that it would be harmful or injurious to

live with the other. Ultimately, it is a matter of inference to be

drawn by taking into account the nature of the conduct and its

effect on the complaining spouse. There may, however, be cases

where the conduct complained of itself is bad enough and per se

unlawful or illegal. Then the impact or the injurious effect on

the other spouse need not be enquired into or considered. In

such cases, the cruelty will be established if the conduct itself is

proved or admitted.

26. The Hon'ble Apex Court in para 5 of Shobha

Rani case (supra) has further observed that it will be necessary

to bear in mind that there has been marked change in the life

around us. In matrimonial duties and responsibilities in

particular, we find a sea change. They are of varying degrees

from house to house or person to person. Therefore, when a

spouse makes 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 Patna High Court MA No.978 of 2018 dt 09-08-2023

their culture and human values to which they attach importance.

The Judges and lawyers, therefore, should not import their own

notions of life. They may not go in parallel with them. There

may be a generation gap between them and the parties. It would

be better if they keep aside their customs and manners. It would

be also better if they less depend upon precedents. Each case

may be different. They 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 realm of cruelty.

27. The Hon'ble Supreme Court, in para 17 of the

Shobha Rani case (supra) has also observed that the context

and the set up in which the word 'cruelty' has been used in the

section, it appears that intention is not a necessary element in

cruelty. That word has to be understood in the ordinary sense of

the term in matrimonial affairs. If the intention to harm, harass

or hurt could be inferred by the nature of the conduct or brutal

act complained of, cruelty could be easily established. But the

absence of intention should not make any difference in the case,

if by ordinary sense in human affairs, that act complained of Patna High Court MA No.978 of 2018 dt 09-08-2023

could otherwise be regarded as cruelty. The relief to the party

cannot be denied on the ground that there has been no deliberate

or wilful ill-treatment.

28. The Hon'ble Apex Court in Gananath

Pattnaik Vs. State of Orissa as reported in 2002(2) SCC 619

has observed that the concept of cruelty and its effect varies

from individual to individual, also depending upon the social

and economic status to which such person belongs. "Cruelty"

for the purposes of constituting the offence under the aforesaid

section need not be physical. Even mental torture or abnormal

behaviour may amount to cruelty and harassment in a given

case.

29. The Hon'ble Supreme Court in para 10 of

A. Jayachandra Vs. Aneel Kaur as reported in 2005(2) SCC

22 has observed that cruelty which is a ground for dissolution of

marriage may be defined as wilful and unjustifiable conduct of

such character as to cause danger to life, limb or health, bodily

or mental, or as to give rise to a reasonable apprehension of

such a danger. The question of mental cruelty has to be

considered in the light of the norms of marital ties of the

particular society to which the parties belong, their social

values, status, environment in which they live. Cruelty, includes Patna High Court MA No.978 of 2018 dt 09-08-2023

mental cruelty, which falls within the purview of a matrimonial

wrong. Cruelty need not be physical. If from the conduct of his

spouse same is established and/or an inference can be

legitimately drawn that the treatment of the spouse is such that it

causes an apprehension in the mind of the other spouse, about

his or her mental welfare then this conduct amounts to cruelty.

30. The Supreme Court in para 12 of A.

Jayachandra case (supra) has further observed that to

constitute cruelty, the conduct complained of should be "grave

and weighty" so as to come to the conclusion that the petitioner

spouse cannot be reasonably expected to live with the other

spouse. It must be something more serious than "ordinary wear

and tear of married life". The conduct, taking into consideration

the circumstances and background, has to be examined to reach

the conclusion whether the conduct complained of amounts to

cruelty in the matrimonial law. Conduct has to be considered, as

noted above, in the background of several factors such as social

status of parties, their education, physical and mental

conditions, customs and traditions. It is difficult to lay down a

precise definition or to give exhaustive description of the

circumstances, which would constitute cruelty. It must be of the

type as to satisfy the conscience of the court that the relationship Patna High Court MA No.978 of 2018 dt 09-08-2023

between the parties had deteriorated to such an extent due to the

conduct of the other spouse that it would be impossible for them

to live together without mental agony, torture or distress, to

entitle the complaining spouse to secure divorce. Physical

violence is not absolutely essential to constitute cruelty and a

consistent course of conduct inflicting immeasurable mental

agony and torture may well constitute cruelty within the

meaning of Section 10 of the Act. Mental cruelty may consist of

verbal abuses and insults by using filthy and abusive language

leading to constant disturbance of mental peace of the other

party.

31. The Supreme Court in para 13 of A.

Jayachandra case (supra) has further observed that the court

dealing with the petition for divorce on the ground of cruelty

has to bear in mind that the problems before it are those of

human beings and the psychological changes in a spouse's

conduct have to be borne in mind before disposing of the

petition for divorce. However insignificant or trifling, such

conduct may cause pain in the mind of another. But before the

conduct can be called cruelty, it must touch a certain pitch of

severity. It is for the court to weigh the gravity. It has to be seen

whether the conduct was such that no reasonable person would Patna High Court MA No.978 of 2018 dt 09-08-2023

tolerate it. It has to be considered whether the complainant

should be called upon a endure as a part of normal human life.

Every matrimonial conduct, which may cause annoyance to the

other, may not amount to cruelty. Mere trivial irritations,

quarrels between spouses, which happen in day-to-day married

life, may also not amount to cruelty. Cruelty in matrimonial life

may be of unfounded variety, which can be subtle or brutal. It

may be words, gestures or by mere silence, violent or non-

violent.

32. In Harbhajan Singh Monga Vs.

Amarjeet Kaur as reported in 1985 SCC OnLine MP 83,

Hon'ble Madhya Pradesh High Court has held that even

threat to commit suicide to falsely implicate the other spouse

and his/her family members in criminal case also amounts to

cruelty.

33. In Smt. Uma Wanti v. Arjan Dev as

reported in 1995 SCC OnLine P & H 56, Hon'ble Punjab

and Haryan High Court has held that even peculiar behaviour

of spouse on account of unsoundness of of mind or otherwise

also amounts to cruelty. Hon'ble Court had held that day to day

behaviour of the appellant was such as to disturb the mental

peace and harmony of the respondent which definitely Patna High Court MA No.978 of 2018 dt 09-08-2023

amounted to legal cruelty. She may not be of the unsound mind,

but her peculiar ways of behaviour proved by the respondent are

sufficient to constitute that legal cruelty. The husband could not

live with peace in the company of the appellant. Peace was

always disturbed due to her peculiar ways of behaviour, and

thus he cannot be disbelieved that her behaviour was cruel to

him.

34. In Mrs. Rita Nijhawan Vs. Mr. Bal

Krishna Nijhawan as reported in ILR (1973) I Delhi 944 ,

Hon'ble Delhi High Court has held that denial of sexual

intercourse either on account of impotence or otherwise

amounts to cruelty to the aggrieved spouse. Hon'ble Court

also observed that sex is the foundation of marriage and without

a vigorous and harmonious sexual activity it would be

impossible for any marriage to continue for long. It cannot be

denied that the sexual activity in marriage has an extremely

favourable influence on a woman's mind and body. The result

being that if she does not get proper sexual satisfaction it will

lead to depression and frustration. It has been said that the

sexual relations when happy and harmonious vivifies woman's

brain, develops her character and trebles her vitality. It must be

recognised that nothing is more fatal to marriage than Patna High Court MA No.978 of 2018 dt 09-08-2023

disappointments in sexual intercourse.

35. Hon'ble Court in Mrs. Rita Nijhawan case

(supra) further observed that the law is well settled that if either

of the party to a marriage being of healthy physical capacity

refuse to have sexual intercourse, the same would amount to

cruelty entitling the other party to a decree. In our opinion it

would not make any difference in law whether denial of sexual

intercourse is the result of sexual weakness of the respondent

disabling him from having a sexual union with the appellant, or

it is because of any wilful refusal by the respondent; this is

because in either case the result is the same namely frustration

and misery to the appellant due to denial of normal sexual life

and hence cruelty.

36. The Hon'ble Supreme Court, in para 99 of the

Samar Ghosh Vs. Jaya Ghosh as reported in (2007) 4 SCC

511, has observed, after referring to and discussing several

judgments on the point of cruelty, that 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 Patna High Court MA No.978 of 2018 dt 09-08-2023

differs from person to person depending upon his upbringing,

level of sensitivity, educational, family and cultural background,

financial position, social status, customs, traditions, religious

beliefs, human values and their value system.

37. The Hon'ble Supreme Court has further

observed in Samar Ghosh case (supra) that there cannot be any

comprehensive definition of the concept of mental cruelty

within which all kinds of cases of mental cruelty can be

covered. The Hon'ble Court in para 100 has further observed

that 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. 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.

38. It has been further observed by Hon'ble

Supreme Court in para 101 of the Samar Ghosh case (supra)

that no uniform standard can ever be laid down for guidance. Patna High Court MA No.978 of 2018 dt 09-08-2023

However, Hon'ble Court thought it appropriate to enumerate

some instances of human behaviour which may be relevant in

dealing with the cases of "mental cruelty" with caution that such

instances are only illustrative and not exhaustive. The instances

enumerated by Hon'ble Apex Court are as follows :

" (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of Patna High Court MA No.978 of 2018 dt 09-08-2023

conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.

x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in Patna High Court MA No.978 of 2018 dt 09-08-2023

such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."

39. The Hon'ble Supreme Court, in para 18 of

Ravi Kumar Vs. Jumla Devi as reported in 2010 SCCR 265,

observed that in matrimonial relationship, cruelty would

obviously mean absence of mutual respect and understanding

between the spouses which embitters the relationship and often

leads to various outbursts of behaviour which can be termed as

cruelty. Sometime cruelty in a matrimonial relationship may

take the form of violence, sometime it may take a different

form. At times, it may be just an attitude or an approach. Silence

in some situations may amount to cruelty. Therefore, cruelty in

matrimonial behaviour defies any definition and its category can

never be closed. Whether husband is cruel to his wife or the

wife is cruel to her husband has to be ascertained and judged by

taking into account the entire facts and circumstances of the

given case and not by any pre-determined rigid formula. Cruelty

in matrimonial cases can be of infinite variety. It may be subtle

or even brutal and may be by gestures and words.

40. In para 10 of Ramchander Vs. Ananta as

reported in 2015(11)SCC 539, Hon'ble Supreme Court has Patna High Court MA No.978 of 2018 dt 09-08-2023

observed that cruelty for the purpose of Section 13(1)(i-a) is to

be taken as a behaviour by one spouse towards the other, which

causes a reasonable apprehension in the mind of the latter that it

is not safe for him or her to continue the matrimonial

relationship with the other. Cruelty can be physical or mental.

41. It has further been observed by Hon'ble Apex

Court in Ramchander case (Supra) that instances of cruelty are

not to be taken in isolation. It is the cumulative effect of the

facts and circumstances emerging from the evidence on record

which should be taken into consideration to draw a fair

inference whether the plaintiff has been subjected to mental

cruelty due to conduct of the other spouse.

42. In Vinita Saxena v. Pankaj Pandit, as

reported in (2006) 3 SCC 778 Hon'ble Supreme Court has

observed in para 31 that it is settled by a catena of decisions that

mental cruelty can cause even more serious injury than the

physical harm and create in the mind of the injured appellant

such apprehension as is contemplated in the section. It is to be

determined on the whole facts of the case and the matrimonial

relations between the spouses. To amount to cruelty, there must

be such wilful treatment of the party which caused suffering in

body or mind either as an actual fact or by way of apprehension Patna High Court MA No.978 of 2018 dt 09-08-2023

in such a manner as to render the continued living together of

spouses harmful or injurious having regard to the circumstances

of the case.

43. Hon'ble Supreme Court has further observed

in Para-32 of Vinita Saxena case (supra) that the word

"cruelty" has not been defined and it has been used in relation to

human conduct or human behaviour. It is the conduct in relation

to or in respect of matrimonial duties and obligations. It is a

course of conduct and one which is adversely affecting the

other. The cruelty may be mental or physical, intentional or

unintentional. There may be cases where the conduct

complained of itself is bad enough and per se unlawful or

illegal. Then the impact or the injurious effect on the other

spouse need not be enquired into or considered. In such cases,

the cruelty will be established if the conduct itself is proved or

admitted.

44. Hon'ble Supreme Court has further observed

in Para-36 of the Vinita Saxena case (supra) that the legal

concept of cruelty which is not defined by the statute is

generally described as conduct of such character as to have

caused danger to life, limb or health (bodily and mental) or to

give rise to reasonable apprehension of such danger. The general Patna High Court MA No.978 of 2018 dt 09-08-2023

rule in all questions of cruelty is that the whole matrimonial

relation must be considered, that rule is of a special value when

the cruelty consists not of violent act but of injurious

reproaches, complaints. accusations or taunts. It may be mental

such as indifference and frigidity towards the wife, denial of a

company to her, hatred and abhorrence for the wife, or physical,

like acts of violence and abstinence from sexual intercourse

without reasonable cause. It must be proved that one partner in

the marriage, however mindless of the consequences, has

behaved in a way which the other spouse could not in the

circumstances be called upon to endure, and that misconduct has

caused injury to health or a reasonable apprehension of such

injury. There are two sides to be considered in case of cruelty.

From the appellant's side, ought this appellant to be called on to

endure the conduct? From the respondent's side, was this

conduct excusable? The court has then to decide whether the

sum total of the reprehensible conduct was cruel. That depends

on whether the cumulative conduct was sufficiently serious to

say that from a reasonable person's point of view after a

consideration of any excuse which the respondent might have in

the circumstances, the conduct is such that the petitioner ought

not be called upon to endure.

Patna High Court MA No.978 of 2018 dt 09-08-2023

45. Hon'ble Supreme Court has further observed

in Para-37 of the Vinita Saxena case (supra) what constitutes

the required mental cruelty for the purposes of the said

provision, will not depend upon the numerical count of such

incidents or only on the continuous course of such conduct but

really go by the intensity, gravity and stigmatic impact of it

when meted out even once and the deleterious effect of it on the

mental attitude, necessary for maintaining a conducive

matrimonial home.

46. Hon'ble Supreme Court has further observed

in Para-38 of the Vinita Saxena case (supra) that if the taunts,

complaints and reproaches are of ordinary nature only, the court

perhaps need consider the further question as to whether their

continuance or persistence over a period of time render, what

normally would, otherwise, not be so serious an act to be so

injurious and painful as to make the spouse charged with them

genuinely and reasonably conclude that the maintenance of

matrimonial home is not possible any longer.

47. Now coming to the case at hand, we find that

after marriage on 28.05.2005, the Respondent/Wife joined the

matrimonial home of the Appellant and as per the allegation she

started committing cruelty against the husband and his family Patna High Court MA No.978 of 2018 dt 09-08-2023

members just after 3-4 days of the marriage. But, we find that

the husband has not filed divorce petition immediately thereafter

or within few days or months of such marriage but he has filed

this divorce petition after five years of marriage and that too

after living with the Respondent/wife for about five years and

after birth of two female children. Such pleading or evidence on

the part of the Appellant/Husband regarding cruelty does not

appear to be reliable. Moreover, there is no specific pleading or

evidence showing date, place and nature of alleged behavioural

misconduct of the Respondent wife including attempt to commit

suicide. On the other hand, the Respondent/Wife has pleaded

and deposed that she was never cruel towards

Appellant/Husband. In fact, after the birth of two daughters, the

Appellant/Husband became inimical to her and ultimately

ousted her on 01.06.2012. And thereafter, he never tried to get

her back at the matrimonial home despite her willingness to join

the matrimonial home. She has also denied any attempt to

commit suicide.

48. As such, in view of the totality of the pleading

and evidence on record, we find that the Appellant/Husband has

not proved any alleged misconduct of the Respondent/Wife

which could be considered as something more serious than Patna High Court MA No.978 of 2018 dt 09-08-2023

ordinary "wear and tear of married life" or "grave and weighty"

which could have caused any danger to his life, limb or health,

bodily or mental, giving rise to a reasonable apprehension to

him of such a danger which could make it unsafe for him to

continue the matrimonial life with the Respondent/Wife. As

such, we find that no legal cruelty has been committed by the

Respondent/Wife to him entitling the Appellant-Husband to the

decree of divorce.

49. Hence, this point is decided in favour of the

Respondent/Wife and against the Appellant/Husband.

50. Before considering Point No. 2 in regard to

Desertion, it would be again imperative to see what is the

statutory provisions and case laws on the subject.

51. Desertion has been provided as a ground for

divorce under Section 13(1)(ib) of Hindu Marriage Act. As per

the provisions, marriage may be dissolved by decree of divorce

on a petition presented by either the husband or the wife if the

other party has deserted the petitioner for a continuous period of

not less than two years immediately preceding the presentation

of the petition. As per the Explanation, the expression

"desertion" means the desertion of the petitioner by the other Patna High Court MA No.978 of 2018 dt 09-08-2023

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.

52. In Bipinchandra Jaisinghbai Shah v.

Prabhavati as reported in AIR 1957 SC 176, Hon'ble

Supreme Court has observed 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 (animus deserendi).

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. The petitioner for divorce bears the burden of proving

those elements in the two spouses respectively. In the same Patna High Court MA No.978 of 2018 dt 09-08-2023

paragrpah Hon'ble Supreme Court has further observed that

Desertion is a matter of inference to be drawn from the facts and

circumstances of each case. The inference may be drawn from

certain facts which may not in another case be capable of

leading to the same inference; that is to say, the facts have to be

viewed as to the purpose which is revealed by those acts or by

conduct and expression of intention, both anterior and

subsequent to the actual acts of separation. If, in fact, there has

been a separation, the essential question always is whether that

act could be attributable to an animus deserendi. The offence of

desertion commences when the fact of separation and the

animus deserendi co-exist. But it is not necessary that they

should commence at the same time. The de facto separation may

have commenced without the necessary animus or it may be that

the separation and the animus deserendi coincide in point of

time; for example, when the separating spouse abandons the

marital home with the intention, express or implied, of bringing

cohabitation permanently to a close.

53. Following Bipinchandra Jaisinghbai Shah

case (supra), Hon'ble Supreme Court in Lachman

Utamchand Kirpalani Vs. Meena as reported in AIR 1964 SC

40 held that in its essence desertion means the intentional Patna High Court MA No.978 of 2018 dt 09-08-2023

permanent forsaking and abandonment of one spouse by the

other without that other's consent, and without reasonable cause.

For the offence of desertion so far as the deserting spouse is

concerned, two essential conditions must be there (1) the factum

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

permanently to an end (animus deserendi). 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. For

holding desertion as proved the inference may be drawn from

certain facts which may not in another case be capable of

leading to the same inference; that is to say the facts have to be

viewed as to the purpose which is revealed by those acts or by

conduct and expression of intention, both anterior and

subsequent to the actual acts of separation.

54. Hon'ble Apex Court in para 8 of Savitri

Pandey Vs. Prem Chandra Pandey as reported in 2002(2)

SCC 73, has observed that "desertion", for the purpose of

seeking divorce under the Act, means intentional permanent

forsaking and abandonment of one spouse by the other without

other's consent and without reasonable cause. In other words it Patna High Court MA No.978 of 2018 dt 09-08-2023

is a total repudiation of the obligations of marriage. Desertion is

not the withdrawal from a place but from a state of things.

Desertion, therefore, means withdrawing from the matrimonial

obligations i.e. not permitting or allowing and facilitating the

cohabitation between the parties. The proof of desertion has to

be considered by taking into consideration the concept of

marriage which in law legalises the sexual relationship between

man and woman in the society for the perpetuation of race,

permitting lawful indulgence in passion to prevent

licentiousness and for procreation of children. Desertion is not a

single act complete in itself, it is a continuous course of conduct

to be determined under the facts and circumstances of each case.

55. Hon'ble Supreme Court, in para 7 of

Debananda Tamuli Vs. Kakumoni Kataky as reported in

(2022) 5 SCC 459 has observed that the law consistently laid

down by this Court is 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 Patna High Court MA No.978 of 2018 dt 09-08-2023

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 this Court has been

incorporated in the Explanation added to sub-section (1) of

Section 13 by Act 68 of 1976.

56. Coming to the case at hand, we find that after

the marriage, the Respondent-Wife, lived for about five years

with Appellant/Husband, giving birth to two female children

and thereafter, there appears to be no reason for the

Respondent/Wife to desert the husband at that stage of life. As

per the evidence on record, she was ousted from the

matrimonial home by the Appellant/Husband. Such finding is

fortified by the evidence that admittedly Appellant/Husband has

not taken any legal step by filing petition under Section 9 of the

Hindu Marriage Act to take the Respondent/Wife to his

matrimonial home. Even the Ld. Family Court has awarded

maintenance to the Respondent/Wife. Maintenance Order is

granted to the Respondent/Wife, if she has valid reason to live

separately. Living separately by the wife without any rhyme and

reason disentitles her to get maintenance. So, even the Ld.

Family Court has found that she has not deserted but she has Patna High Court MA No.978 of 2018 dt 09-08-2023

been ousted from the matrimonial home and that is why Ld.

Family Court has awarded maintenance in favour of the

Respondent/Wife. Moreover, in the evidence, we find that the

Respondent/Wife has deposed that she still wants to live with

the Appellant/Husband. As such, we find that it is not the

Respondent/Wife, who has deserted the husband but it is the

other way around.

57. Hence, Point No. 2 is also decided against the

Appellant/Husband and in favour of the Respondent Wife.

Point No.3

58. Before considering Point No. 3 in regard to

unsoundness of mind/mental disorder/schizophrenia, it would

be again imperative to see what is the statutory provisions and

case laws on the subject.

59. Section 13 of the Hindu Marriage Act, 1955

provides for divorce.

Section 13 (1) reads as follows:-

"13. (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

........................................................................... ...................................................

(iii) has been incurably of unsound mind, or has been suffering continuously or intemittently from mental disorder of such a Patna High Court MA No.978 of 2018 dt 09-08-2023

kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation-In this clause,-

(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any disorder of disability of mind and includes schizophernia;

(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub- normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment,"

60. In Ram Narain Gupta Vs. Shrimati

Rameshwari Gupta as reported in (1988)4 SCC 247, Hon'ble

Supreme Court in Para 20 has observed that the context in

which the ideas of unsoundness of 'mind' and 'mental disorder'

occur in the section as grounds for dissolution of a marriage,

require the assessment of the degree of the 'mental disorder'. Its

degree must be such that the spouse seeking relief cannot

reasonably be expected to live with the other. All mental

abnormalities are not recognised as grounds for grant of decree.

If the mere existence of any degree of mental abnormality could

justify dissolution of a marriage few marriages would, indeed,

survive in law.

Patna High Court MA No.978 of 2018 dt 09-08-2023

61. Hon'ble Supreme Court in Kollam Chandra

Sekhar Vs. Kollam Padma Latha as reported in (2014)1 SCC

225 has observed in Para 41 that under Hindu law, marriage is

an institution, a meeting of two hearts and minds and is

something that cannot be taken lightly. In the Vedic period, the

sacredness of the marriage tie was repeatedly declared; the

family ideal was decidedly high and it was often realised. In

Para 42 of Kollam Chandra Sekhar case (supra) Hon'ble

Supreme Court has further observed that Marriage is highly

revered in India and we are a nation that prides itself on the

strong foundation of our marriages, come hell or high water,

rain or sunshine. Life is made up of good times and bad, and the

bad times can bring with it terrible illnesses and extreme

hardships. The partners in a marriage must weather these storms

and embrace the sunshine with equanimity. Any person may

have bad health, this is not their fault and most times, it is not

within their control, as in the present case, the respondent was

unwell and was taking treatment for the same. The illness had

its fair share of problems. Can this be a reason for the appellant

to abandon her and seek dissolution of marriage after the child

is born from their union?

Patna High Court MA No.978 of 2018 dt 09-08-2023

62. Hon'ble Calcutta High Court in Pramatha

Kumar Maity Vs. Ashima Maity as reported in 1990 SCC

Online Cal 177 has observed in Para 3 that sound health, in

these days of pollution of air and water, adulteration of foodstuff

and drugs and all that is a rare species. So is sound mind, as a

result of all the stress and strain, anxiety and tension of the

modern age. The legislature has not made unsoundness of mind

or mental disorder, by itself, a matrimonial fault unless the

unsoundness is incurable or the disorder is such as to disable the

person to become a reasonably tolerable matrimonial partner.

63. Hon'ble Andhra Pradesh High Court in

Tallam Suresh Babu Vs. T. Swetha Rani as reported in 2018

SCC Online Hyd 4 has observed in Para 54 that the context in

which the idea of unsoundness of mind as "mental disorder"

occur in matrimonial law as grounds for dissolution of a

marriage, requires the assessment of the degree of the "mental

disorder". Its degree must be such that the spouse seeking relief

cannot reasonably be expected to live with the other. All mental

abnormalities are not recognised as ground for the grant of

divorce.

Patna High Court MA No.978 of 2018 dt 09-08-2023

64. Coming to the case at hand, we find that as

per the allegation of the Appellant/Husband, the

Respondent/Wife was schizophrenic right from the beginning.

But such allegation falls on the ground in view of the evidence

that the Appellant has continuously cohabited with the

Respondent-Wife for five years since marriage and there is birth

of two children out of the wedlock, but there is no complaint

regarding upbringing of these children by the allegedly

schizophrenic wife. All of a sudden, the divorce petition has

been filed after about five years on the ground of such mental

disorder. Moreover, the Appellant/Husband himself has

deposed that Respondent/Wife was never treated for mental

illness and she was treated only by physicians and even medical

prescription of such treatment was not available with him. Even,

other witnesses examined on behalf of the Appellant/Husband,

there is no any cogent evidence to show that the Respondent

was suffering from any mental disorder. Moreover, it is also

pertinent to note that as per statutory requirement as provided in

Section 13 (1) of the Hindu Marriage Act, the petitioner is also

required to prove that such unsoundness of mind is incurable

and is of such a degree that the Petitioner for divorce cannot be Patna High Court MA No.978 of 2018 dt 09-08-2023

reasonably expected to live with his her spouse. But we find no

evidence adduced by Appellant to fulfil such requirement. As

such, we find that the Appellant/Husband had failed to prove

that the Respondent/Wife was suffering from schizophrenia or

any mental disorder of any degree entitling the Appellant-

Husband to the decree of divorce.

65. Hence, Point No. 3 is also decided against the

Appellant/Husband and in favour of the Respondent Wife.

66. As such, we find that there is no merit in the

present appeal warranting any interference in the impugned

judgment. The Family Court has rightly dismissed the

matrimonial case of the appellant seeking divorce. The present

appeal is dismissed, accordingly, upholding the impugned

judgment. Both the parties shall bear their own costs.

(Jitendra Kumar, J)

(P. B. Bajanthri, J) skm/chandan/-

AFR/NAFR                AFR
CAV DATE                14.07.2023
Uploading Date          09.08.2023
Transmission Date       NA