Dinesh Mandal vs Chaitali Majumdar
2023 Latest Caselaw 4038 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Miscellaneous Appeal No. 295 of 2018

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

Dinesh Mandal, S/o Late Brishpati Mandal @ Bahaspati Mandal Resident of Mohalla- Railway New Colony, Quarter No. 364 (D), P.S.- Sahaiak Katihar, District- Katihar.

... ... Appellant/Plaintiff Versus Chaitali Majumdar W/o Dinesh Mandal, D/o Late Mukund Lal Majumdar At present- ANMPP Programme Sadar Hospital, Katihar.

... ... Respondent/Defendant ====================================================== Appearance :

For the Appellant/s    :     Mr. Kiran Sinha
For the Respondent/s   :     None

====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE JITENDRA KUMAR

CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE JITENDRA KUMAR)

Date : 25-08-2023

The present appeal has been filed under Section

19(1) of the Family Courts Act, 1984, impugning the judgment

dated 18.04.2017 passed by Ld. Additional Principal Judge,

Family Court, Katihar, in Matrimonial Case (Divorce) No. 560

of 2012, whereby the petition filed under Section 13(1)(i),

praying for decree of divorce, has been dismissed ex parte.

2. The case of the Appellant/Plaintiff as per the

pleadings is that he was married with the Respondent in the

year 1980 as per Hindu Rites and Customs and out of the

wedlock, two children were born, one is son, Devashis Patna High Court MA No.295 of 2018 dt.25-08-2023

Mandal, who is aged about 27 years and the second is

daughter Chandrani Mandal, who is aged about 25 years. It is

further averred that after solemnization of the marriage, both

the parties began to lead happy and prosperous conjugal life.

But, in 1997, the Defendant/Respondent left the company of

the Appellant/Plaintiff and began to live in a hospital quarter.

The Plaintiff/Appellant left no stone unturned to mend the way

of the Defendant/Respondent but of no avail. It is further

averred that the Defendant/Respondent filed a Complaint Case

No. 1249 of 2000, in the Court of Ld. C.J.M., alleging torture

and harassment and this complaint is still pending and the

marriage bond between the parties has completely broken

down. It is further averred that the Plaintiff/Appellant made

several attempts to repair the matrimonial bond but the

Defendant/Respondent is negating the company of the

Appellant. It is further averred that the conduct and

circumstances created by the Defendant/Respondent is

humiliating and causing mental cruelty because she had roped

the Appellant in false criminal case due to which the life of the

Plaintiff/Appellant has become miserable and he is feeling

humiliated in both private and public life. And hence, the

Plaintiff/Appellant is not in a position to live with the Patna High Court MA No.295 of 2018 dt.25-08-2023

Defendant/Respondent. It is further informed that earlier a

Matrimonial Case No. 30 of 2000, was filed by the

Plaintiff/Appellant in the Court of Ld. District and Sessions

Judge, Katihar, in which the Defendant/Respondent had

appeared and filed her written statement. Reconciliation

proceedings was also conducted. However, the

Defendant/Respondent had completely refused to go with the

Appellant to lead a conjugal life. It is further averred that the

said matrimonial case/suit could not be contested by the

Plaintiff/Appellant and hence, that case was dismissed due to

lack of proper pairvi and the suit could not attain finality. It is

further averred that his marriage has irretrievably broken down

and there is no emotional substratum in the marriage. The

matrimonial bond is beyond repair and the marriage is only for

the sake of name. It is further averred that the

Defendant/Respondent has been living separately from the

company of the Plaintiff/Appellant for about 15 years and

hence, he is claiming that the Plaintiff/Appellant is entitled to

Decree of Divorce dissolving the marriage between the

parties.

3. On notice, the Defendant did not appear. Hence,

she was proceeded ex parte. During the ex parte trial, the Patna High Court MA No.295 of 2018 dt.25-08-2023

following three witnesses were examined on behalf of the

Plaintiff/Appellant :

i) PW-1 - Pardeshi Kamti

ii) PW-2- Sabjo Sachi Ghosh

iii) PW-3 - Dinesh Mandal, who is plaintiff himself

4. The Appellant / Plaintiff has also got the

following documents exhibited :

i) Exhibit No.1 - Order Sheets of the Matrimonial

Case No. 30 of 2000.

ii) Exhibit No. 2 - A copy of the Matrimonial

Petition No. 30 of 2000.

5. Pardeshi Kamti, who has been examined as

PW-1, is acquainted with both the parties and in her

examination- in-chief filed by way of affidavit she has

reiterated the statements as made by the Plaintiff/Appellant in

his petition. She has also deposed that the

Defendant/Respondent is working as a nurse in a Government

hospital and she is living separately from the

Plaintiff/Appellant for 19 years and the matrimonial life

between the parties is completely over. To Court question, she

has deposed that she had never talked to

Defendant/Respondent, Chaitali Majumdar. She had seen her Patna High Court MA No.295 of 2018 dt.25-08-2023

only once in the year 1998 at the house of the

Plaintiff/Appellant when the altercation was going on.

6. Sabjo Sachi Ghosh, who has been examined as

PW-2 is also acquainted with both the parties. In his

examination-in-chief filed by way of affidavit, he has

reiterated the Statements as made in the petition filed by the

Plaintiff/Appellant. To Court question, he deposed that he is

neighbour of the Plaintiff/Appellant, Dinesh Mandal. He has

also deposed in response to the Court question that he and the

Plaintiff/Appellant are in Railway employment since the year

1996. He has also deposed that he does not know why the

Defendant/Respondent has been living separately from the

Plaintiff/Appellant.

7. PW-3- Dinesh Mandal, is the

Plaintiff/Appellant himself. In his examination-in-chief filed

by way of affidavit, he has also reiterated the statement as

made in his petition. In the said affidavit, he has also deposed

that Defendant-wife (who is Respondent herein) has also illicit

relationship with one Manoj Kumar Mandal. However, such

allegation regarding illicit relationship of the Defendant-wife

with the said Manoj Kumar Mandal is not pleaded in the

Plaint. To Court, he has deposed that earlier also he had filed Patna High Court MA No.295 of 2018 dt.25-08-2023

one divorce case, bearing Matrimonial Case No. 30 of 2000

for dissolution of marriage, but that was dismissed for non-

prosecution. He has also deposed that in the earlier petition,

the same ground for dissolution of marriage was taken. He has

also deposed that the complaint case filed by the

Defendant/Respondent-Wife under Section 498A of the Indian

Penal Code has been dismissed. However, he has not filed any

documents in support of such a claim and it is not clear how

the complaint has been dismissed.

8. The Exhibit-1, which is the order sheet of

previous divorce petition bearing no. 30 of 2000, shows that

on 20.05.2002, the divorce petition was dismissed for default

for non-attending the matter by the Plaintiff/Appellant as well

as Defendant/Respondent.

9. Exhibit-2, is a copy of the Matrimonial Case

No. 30 of 2000, filed by the Plaintiff/Appellant for dissolution

of marriage in the year 2000 which was dismissed for default.

As per the petition, the Plaintiff/Appellant had pleaded

adultery of the Defendant/Respondent-Wife with one Manoj

Kumar Mandal, who was also impleaded as Defendant No. 2

in the petition. However, such pleading has not been made in

the present divorce petition. It is also pertinent to take notice Patna High Court MA No.295 of 2018 dt.25-08-2023

that in that previous petition, he had not pleaded ground of

desertion or cruelty for divorce. Only adultery was pleaded as

ground for divorce in the previous matrimonial petition.

10. After considering the evidence on record and

submissions on behalf of the Plaintiff/Appellant, Ld. Family

Court dismissed the suit ex parte, holding that the Appellant /

Plaintiff had failed to prove cruelty as allegedly committed by

Defendant-wife against the Appellant / Plaintiff. It has also

been found by the Ld. Family Court that even ground of

desertion has not been proved by the Plaintiff (who is

Appellant herein) against the Defendant-wife (who is

Respondent herein). In regard to deposition regarding adultery,

the examination-in-chief filed by way of evidence, the Ld.

Family Court has found that such evidence is beyond

pleadings because same has not been pleaded in the Plaint by

the Appellant / Plaintiff.

11. Ld. counsel for the Appellant / Plaintiff

submits that Ld. Family Court has failed to properly appreciate

the pleading and evidence on record and hence the Ld. Family

Court has erroneously found that the Appellant / Plaintiff had

failed to prove cruelty, desertion and adultery to get decree of

divorce against the Respondent-wife.

Patna High Court MA No.295 of 2018 dt.25-08-2023

12. Respondent, despite service of notice did not

appear to contest this appeal.

13. In view of the pleadings and submissions

made on behalf of the Ld. Counsel for the Appellant, the

following points arise for consideration of this Court:

(i) Whether, the Respondent-wife treated the

Appellant / Plaintiff with cruelty;

(ii) Whether the Respondent-wife has deserted the

Appellant / Plaintiff for more than two years at the time of

presentation of the divorce petition;

(iii) Whether the Respondent-wife is living in

adultery and she has, after the solemnization of the marriage,

had voluntary sexual intercourse with any person other than

his or her spouse;

(iv) Whether the Appellant / Plaintiff is entitled to

get decree of divorce;

14. In view of the pleading that prior to the

present divorce petition, the Appellant-Plaintiff had preferred

Matrimonial Case No. 30 of 2000 under Section 13 of the

Hindu Marriage Act for divorce and the same was dismissed

on 20.05.2002 for non-attending the matter by the Appellant

and the Respondent, a preliminary question arises whether the Patna High Court MA No.295 of 2018 dt.25-08-2023

present divorce petition is barred or not. This question requires

first consideration. It would be relevant to refer to Rule 3 of

Order IX of the Civil Procedure Code, as per which, where

neither party appears when the suit is called on for hearing, the

Court may make an order that the suit be dismissed. As per

Rule 4 of Order IX of the Civil Procedure Code where a suit is

dismissed under Rule 2 or Rule 3, the Plaintiff has liberty to

bring a fresh suit or he may apply for restoration of suit

subject to the law of limitation. Rule 3 and 4 of Order IX of

the Civil Procedure Code read as follows:-

"3. Where neither party appears, suit to be dismissed.- Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.

4. Plaintiff may bring fresh suit or Court may restore suit to file.- Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for such failure as is referred to in rule 2 or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit."

15. As such, we find that in case a suit is

dismissed for non-attendance of both the parties, the plaintiff Patna High Court MA No.295 of 2018 dt.25-08-2023

has both options - either to file an application under Rule 4,

Order IX of the Civil Procedure Code to get the suit restored

by getting the dismissal order set aside or to file a fresh suit.

16. In the case at hand, the Appellant/Plaintiff

has preferred to file a fresh suit. Hence, the suit is not barred.

It is maintainable.

17. Now let us consider the points which have

been already formulated for consideration by this Court.

18. However, 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.

19. 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 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 Patna High Court MA No.295 of 2018 dt.25-08-2023

positive than a negative. The petitioner must therefore prove

that the respondent has treated him with cruelty.

20. 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 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 Patna High Court MA No.295 of 2018 dt.25-08-2023

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 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 Patna High Court MA No.295 of 2018 dt.25-08-2023

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.

21. 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 Dastane case

(supra), Hon'ble Apex Court has further observed that

under the Hindu Marriage Act, nowhere it is required that the Patna High Court MA No.295 of 2018 dt.25-08-2023

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.

22. 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 bearing on the need

to have the clearest proof of an allegation before it is Patna High Court MA No.295 of 2018 dt.25-08-2023

accepted as a ground for the dissolution of a marriage, has no

bearing on the standard of proof in matrimonial cases.

23. 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.

24. 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 complainant spouse because of the acts or omissions

of the other. Cruelty may be physical or corporeal or may be Patna High Court MA No.295 of 2018 dt.25-08-2023

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.

25. 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.

26. Now let us consider the points one by one.

                                 Point No.1

                          27.      Before          considering   whether   the

Respondent/Wife has treated the Appellant-Plaintiff-husband

with cruelty, it would be imperative to see what is the

statutory provisions and case laws on the subject. Patna High Court MA No.295 of 2018 dt.25-08-2023

28. 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.

29. 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.

30. 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 Patna High Court MA No.295 of 2018 dt.25-08-2023

treatment. Second, the impact of such 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.

31. 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 Patna High Court MA No.295 of 2018 dt.25-08-2023

their economic and social conditions. It may also depend upon

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.

32. 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, Patna High Court MA No.295 of 2018 dt.25-08-2023

if by ordinary sense in human affairs, that act complained of

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.

33. 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.

34. 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 Patna High Court MA No.295 of 2018 dt.25-08-2023

values, status, environment in which they live. Cruelty, includes

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.

35. 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 Patna High Court MA No.295 of 2018 dt.25-08-2023

type as to satisfy the conscience of the court that the relationship

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.

36. 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 Patna High Court MA No.295 of 2018 dt.25-08-2023

whether the conduct was such that no reasonable person would

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.

37. 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.

38. 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 amounted to legal Patna High Court MA No.295 of 2018 dt.25-08-2023

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.

39. 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 disappointments in sexual

intercourse.

Patna High Court MA No.295 of 2018 dt.25-08-2023

40. 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.

41. 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

differs from person to person depending upon his upbringing, Patna High Court MA No.295 of 2018 dt.25-08-2023

level of sensitivity, educational, family and cultural background,

financial position, social status, customs, traditions, religious

beliefs, human values and their value system.

42. 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.

43. 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.

However, Hon'ble Court thought it appropriate to enumerate Patna High Court MA No.295 of 2018 dt.25-08-2023

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

Patna High Court MA No.295 of 2018 dt.25-08-2023

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 such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of Patna High Court MA No.295 of 2018 dt.25-08-2023

the parties. In such like situations, it may lead to mental cruelty."

44. 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.

45. In para 10 of Ramchander Vs. Ananta as

reported in 2015(11)SCC 539, Hon'ble Supreme Court has

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 Patna High Court MA No.295 of 2018 dt.25-08-2023

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.

46. 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.

47. 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

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

spouses harmful or injurious having regard to the circumstances Patna High Court MA No.295 of 2018 dt.25-08-2023

of the case.

48. 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.

49. 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

rule in all questions of cruelty is that the whole matrimonial

relation must be considered, that rule is of a special value when Patna High Court MA No.295 of 2018 dt.25-08-2023

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.

50. Hon'ble Supreme Court has further observed

in Para-37 of the Vinita Saxena case (supra) what constitutes Patna High Court MA No.295 of 2018 dt.25-08-2023

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.

51. 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.

52. Coming to the case at hand, we find that

cruelty was not pleaded as ground for divorce in the previous

petition, which is Exhibit-2. We further find that only pleading

regarding cruelty in the present divorce petition is that the

Defendant / Respondent is negating the company of the

Appellant / Plaintiff. The conduct and circumstances created Patna High Court MA No.295 of 2018 dt.25-08-2023

by her is humiliating and causing mental cruelty to him. It has

also been pleaded that due to false criminal case filed by the

Defendant / Respondent, the life of the Appellant / Plaintiff

has become miserable and he is feeling humiliated in both

private and public life. Hence, he is not in a position to live

with the Defendant / Respondent-wife. P.W. 2, who has been

examined on 30.08.2016 has deposed that Defendant /

Respondent is working as Nurse in Government Hospital and

she is living separately from the Appellant / Plaintiff for 19

years and the matrimonial life between the parties is

completely over. P.W. 2, Sabjo Sachi Ghosh has deposed that

he does not know why the Defendant / Respondent has been

living separately from the Appellant / Plaintiff. The Appellant /

Plaintiff, who has been examined as P.W. 3, has not given any

specific instance of cruelty either in the pleading or in

evidence. However, he has deposed that the Complaint Case

filed by the Defendant- Respondent-wife under Section 498A

of the Indian Penal Code has been dismissed. However, he has

not filed any document in support of such claim and it is not

clear how the complaint case had been dismissed. It is also

pertinent to note as per the Exhibit-2, which is the Plaint of the

previous divorce case filed by the Appellant - Plaintiff, he had Patna High Court MA No.295 of 2018 dt.25-08-2023

not made any allegation of cruelty against the Defendant /

Respondent and it also appears from the address given in the

Plaint that even at the time of filing the earlier divorce

petition, she was living separately. It explains why Appellant /

Plaintiff has failed to give any instance of cruelty except

making omnibus and bald allegation of cruelty. Withdrawal

from the society of a husband not necessarily means cruelty if

the spouse withdrawing from the society of the other spouse

has valid reason to live separately. Filing false criminal case

may amount to cruelty but from the pleading and evidence on

record there is no conclusive proof that the criminal case filed

by the Defendant-wife has been dismissed and if it has been

dismissed, how and for what reason it has been dismissed. In

such situation, it is very difficult to form an opinion that the

criminal case filed by the Defendant-wife was false.

53. 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 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 Patna High Court MA No.295 of 2018 dt.25-08-2023

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.

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

Respondent/Wife and against the Appellant/Husband.

Point No.2

55. Now, let us consider point no.2, which relates

to desertion. However, before we consider it, it would again be

imperative to see what is the statutory provisions and case

laws on the subject.

56. 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 party to the marriage without

reasonable cause and without the consent or against the wish Patna High Court MA No.295 of 2018 dt.25-08-2023

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.

57. 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 paragraph Hon'ble Supreme Court has further Patna High Court MA No.295 of 2018 dt.25-08-2023

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.

58. 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.295 of 2018 dt.25-08-2023

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.

59. 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.295 of 2018 dt.25-08-2023

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.

60. 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 Patna High Court MA No.295 of 2018 dt.25-08-2023

should be animus deserendi on the part of the deserting

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

deserted spouse and the conduct of the deserted spouse should

not give a reasonable cause to the deserting spouse to leave the

matrimonial home. The view taken by this Court has been

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

Section 13 by Act 68 of 1976.

61. Coming to the case at hand, we find that in

the Plaint, there is no pleading on which date the Respondent

has withdrawn from the society of the Appellant / Plaintiff and

there is no pleading in the Plaint that for how many years she

has deserted the Appellant / Plaintiff at the time of presentation

of the Plaint for divorce. Moreover, this ground of desertion

was not pleaded even in the previous divorce petition bearing

Matrimonial Case No. 30 of 2000. In the evidence of the

witnesses examined on behalf of the Appellant / Plaintiff, we

find that as per P.W. 1, Pardeshi Kamti, Defendant /

Respondent has been living separately for 19 years. But, she

has not deposed anything about the reason behind separate

living. P.W. 1 has deposed that she does not know why the

Defendant / Respondent has been living separately and even

Appellant / Plaintiff who has been examined as P.W. 3 was Patna High Court MA No.295 of 2018 dt.25-08-2023

silent on this issue. He has neither pleaded nor deposed since

which date, the Defendant-wife has been living separately and

for what reason. He has also not deposed about the reason for

separate living.

62. As such, the Appellant/husband has failed to

prove that the Respondent/wife has abandoned him without his

consent and without reasonable cause with intent to bring

cohabitation permanently to an end for more than two years at

the time of presentation of the present petition.

63. Hence, this point is also decided against the

Appellant/husband and in favour of the Respondent/wife.

Point No.3

64. Let us come to the point no. 3 which relates

to ground of adultery. We find that there is not even a whisper

in the pleading regarding adulterous life of the Defendant /

Respondent, nor alleged adulterer has been impleaded as

Defendant before the Family Court. Moreover, this is settled

principle of law that any evidence deposed beyond the

pleadings cannot be considered for grant of relief.

65. In the light of various judicial

pronouncements, it is settled principle of law that the evidence

adduced beyond the pleadings is liable to be rejected and Patna High Court MA No.295 of 2018 dt.25-08-2023

cannot be considered for grant of relief as prayed for by the

petitioner.

66. Hon'ble Supreme Court in para 12 of

National Textile Corporation Ltd. Vs. Nareshkumar

Badrikumar Jagad & Ors. as reported in (2011) 12 SCC 695

after referring to Trojan & Co. Vs. Nagappa Chettiar as

reported in AIR 1953 SC 235, State of Maharashtra Vs.

Hindustan Construction Co. Ltd. as reported in (2010) 4

SCC 518 and Kalyan Singh Chouhan Vs. C.P. Joshi as

reported in (2011) 11 SCC 786, observed that pleadings and

particulars are necessary to enable the court to decide the

rights of the parties in the trial. Therefore, the pleadings are

more of help to the court in narrowing the controversy

involved and to inform the parties concerned to the question in

issue, so that the parties may adduce appropriate evidence on

the said issue. It has been further observed that as a settled

legal proposition, relief not founded on the pleadings should

not be granted. A decision of a case cannot be based on

grounds outside the pleadings of the parties. The pleadings and

issues are to ascertain the real dispute between the parties to

narrow the area of conflict and to see just where the two sides

differ.

Patna High Court MA No.295 of 2018 dt.25-08-2023

67. In Prakash Rattan Lal Vs. Mankey Ram as

reported in ILR (2010)III Delhi 315, Hon'ble Delhi High

Court has referred to Ram Sarup Gupta by LRs Vs. Bishun

Narain Inter College as reported in (1987) 2 SCC 555 and

Harihar Prasad Singh Vs. Balmiki Prasad Singh, as

reported in (1975) 1 SCC 212 and observed in para 4 of the

judgment that the sole purpose of pleadings is to bind the

parties to a stand. When the plaintiff makes certain allegations,

the defendant is supposed to disclose his defence to each and

every allegation specifically and state true facts to the court

and once the facts are stated by both the parties, the court has

to frame issues and ask the parties to lead evidence. It is

settled law that the parties can lead evidence limited to their

pleadings and parties while leading evidence cannot travel

beyond pleadings. If the parties are allowed to lead evidence

beyond pleadings then the sacrosancy of pleadings comes to

an end and the entire purpose of filing pleadings also stand

defeated. The other purpose behind this is that no party can be

taken by surprise and new facts cannot be brought through

evidence which have not been stated by the defendant in the

written statement. The law provides a procedure for

amendment of the pleadings and if there are any new facts Patna High Court MA No.295 of 2018 dt.25-08-2023

which the party wanted to bring on record, the party can

amend pleadings, but without amendment of pleadings, a party

cannot be allowed to lead evidence beyond pleadings.

68. Hon'ble Supreme Court in para 12 of

Bachhaj Nahar Vs. Nilima Mandal & Anr. as reported in

(2008) 17 SCC 491 has also observed that the object and

purpose of pleadings and issues is to ensure that the litigants

come to trial with all issues clearly defined and to prevent

cases being expanded or grounds being shifted during trial. Its

object is also to ensure that each side is fully alive to the

questions that are likely to be raised or considered so that they

may have an opportunity of placing the relevant evidence

appropriate to the issues before the court for its consideration.

It has been further observed that the Hon'ble Apex Court has

repeatedly held that the pleadings are meant to give to each

side intimation of the case of the other so that it may be met, to

enable courts to determine what is really at issue between the

parties, and to prevent any deviation from the course which

litigation on particular causes must take. Hon'ble Supreme

Court further held in para 10 of the judgment as under:-

"10. The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of Patna High Court MA No.295 of 2018 dt.25-08-2023

litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are:

(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject-matter of an issue, cannot be decided by the court.

(ii) A court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.

(iii) A factual issue cannot be raised or considered for the first time in a second appeal."

69. Hon'ble Supreme Court in para 6 of Ram

Sarup Gupta case (supra) has observed that it is well settled

that in the absence of pleading, evidence, if any, produced by

the parties cannot be considered. It is also equally settled that

no party should be permitted to travel beyond its pleading and

that all necessary and material facts should be pleaded by the

party in support of the case set up by it.

70. Hence, the evidence adduced beyond

pleadings, as stated above, is liable to be rejected and cannot

be considered as a proof of the alleged grounds of divorce. Patna High Court MA No.295 of 2018 dt.25-08-2023

71. 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. Let the decree be drawn accordingly.

72. Registrar General is directed to circulate a

copy of the judgment amongst all the presiding officers of the

Family Courts and send a copy to Director of Bihar Judicial

Academy.

(Jitendra Kumar, J)

(P. B. Bajanthri, J) Chandan/Amrendra AFR/NAFR AFR CAV DATE 08.08.2023 Uploading Date 25.08.2023 Transmission Date NA