Savita Mandal vs Nakshtra Kumar Mandal
2023 Latest Caselaw 4039 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Miscellaneous Appeal No.114 of 2017
======================================================

Savita Mandal wife of Nakshtra Kumar Mandal, daughter of Patal Sahni resident of Police Line, Katihar, P.S. and District Katihar.

... ... Appellant/Plaintiff Versus Nakshtra Kumar Mandal son of Dwarika Prasad Singh resident of village Vashupur, Majdiya, P.O. Devipur, P.S. Kursela, District Katihar.

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

For the Appellant/s : Mr. Mukesh Kumar Jha, Advocate For the Respondent/s : Mr. Jibendra Mishra, Advocate ====================================================== 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 impugning the

judgment dated 12.01.2017, passed by learned Additional

Principal Judge, Family Court, Katihar, in Matrimonial

(Divorce) Case No. 413 of 2013. This petition was filed under

Section 13 (1)(I-B) of the Hindu Marriage Act, 1955 praying for

divorce and custody of two minor children born out of wedlock.

However, the petition was dismissed on contest.

2. The case of the Appellant-Plaintiff, as per the

pleadings is that the marriage between the Appellant-Plaintiff

and the Respondent-Defendant was solemnized on 25.09.1998

as per the Hindu rites and customs. After marriage, the Patna High Court MA No.114 of 2017 dt 25-08-2023

Appellant-wife joined the matrimonial home of the Respondent-

husband. It is further pleaded that at the time of marriage, lavish

gifts besides cash of ₹1.5 lacs towards expenses of the marriage

were given to the Respondent-husband. After the marriage, the

conjugal life between the parties was cordial and two male

children, namely, Priyansu Kumar and Saket Kumar were born

out of the wedlock, who were 12 years and 10 years old

respectively at the time filing of the divorce petition. It is further

pleaded that after the birth of younger child, the Respondent-

husband developed intimacy with another lady of the same

village and he was living adulterous life with her. It is further

pleaded that while she was living with her husband, there was

complaint of insufficient payment of dowry and ornaments by

the husband and his relatives, for which, she was subjected to

physical and mental cruelty. Ultimately, she was driven out from

the matrimonial home after keeping her belongings and

ornaments. It is further pleaded that on account of ill treatment

and adulterous life of the Respondent-husband, the Appellant-

Plaintiff felt uncomfortable to live with Respondent-husband

along with his family members and children. It is further

pleaded that the Appellant-Plaintiff joined District Police on

monthly salary and she scarcely spared time to meet the Patna High Court MA No.114 of 2017 dt 25-08-2023

Respondent-husband at his parental home on account of his

posting at different places. It is further pleaded that at the end of

every month, the Respondent-husband used to visit her place of

posting to take her salary under threat and coercion, leaving the

Appellant-wife hand to mouth. It is further pleaded that both the

minor sons are living with the Respondent-husband on the

pretext of better guardianship and academic career, but reliably

it is learnt that they are subjected to ill treatment by the

Respondent-husband. As the Appellant-Plaintiff has got

government quarter for her residence, she is capable to maintain

the academic career of her children. The Appellant-Plaintiff has

strong apprehension of untoward incident at the instance of the

Respondent-husband. Hence the Appellant-Plaintiff is no longer

willing and ready to proceed further with her matrimonial

relationship with the Respondent-husband. It is further pleaded

that on account of ill treatment at the hands of the Respondent-

husband and his family members, the Appellant-Plaintiff has

lodged criminal case, bearing Complaint Case No. 203 of 2013

before the Ld. S.D.J.M., Katihar. It is further pleaded that in

view of the above facts and circumstances, the matrimonial life

of the Appellant-Plaintiff with the Respondent-husband was

very tense and no reliance can be placed by the Respondent- Patna High Court MA No.114 of 2017 dt 25-08-2023

husband to continue the matrimonial relationship further and

hence, she has filed the present petition with a prayer for

divorce under Section 13(1)(1-B) of the Hindu Marriage Act,

1955.

3. On notice, the Respondent-Defendant-husband

appeared and filed his written statement, wherein he has claimed

that the matrimonial suit as framed was not maintainable. He

further claimed that the Appellant-Plaintiff did not plead any

lawful ground for decree of divorce. He has admitted the

marriage with Appellant-Plaintiff, but he denied the allegation

of demand of dowry. It is also claimed by the Respondent-

husband that the matrimonial life was harmonious and two

children were born out of the wedlock. It is further claimed that

the Respondent-husband made the Appellant-wife well educated

and also made her eligible to be selected in Bihar Police on the

post of Lady Constable. He has denied all the allegations

regarding cruelty and demand of dowry or living adulterous life.

It is further claimed by the Respondent-husband that after being

selected in Bihar Police, the Appellant-wife became financially

independent and developed disregard for the Respondent-

husband and his family members. He has further stated that by

availing different kind of leave, she could have met the children Patna High Court MA No.114 of 2017 dt 25-08-2023

and her husband to maintain matrimonial and family life in

proper way. He has denied that he ever snatched the salary of

the Appellant-wife. It is also claimed by the Respondent-

husband that the Appellant-wife is selfish and she has no regard

and love for her children and she never takes care of her

children and spends any money on them or on their education

and well being. It is the Respondent-husband, who is taking care

of the children and taking all efforts for their proper education.

It is further claimed that on account of earning money

independently, the Appellant-Plaintiff-wife wants to get rid of

the Respondent-husband. It is also claimed that by filing false

criminal case, she is collecting false evidence for decree of

divorce.

4. On the basis of pleadings of the parties, the learned

Family Court framed the following issues:-

i. Whether the suit as framed is maintainable. ii. Whether the petitioner has valid cause of action to file the suit.

iii. Whether there is reasonable excuse for the Petitioner to leave the society of her husband (Respondent).

iv. Whether the petitioner was subjected to ill treatment and cruelty due to non-fulfillment of dowry demand.

v. Whether the petitioner is entitled to custody Patna High Court MA No.114 of 2017 dt 25-08-2023

of two sons, who are presently living with Respondent-Defendant.

vi. Whether the Petitioner is entitled to the decree of divorce.

vii. Whether the Petitioner is also entitled to any other relief or reliefs.

5. During trial, the Appellant-Plaintiff has examined

the following witnesses:-

i. P.W.-1, Savita Mandal, the Appellant. ii. P.W.-2, Sheela Devi, mother of the Appellant.

iii. P.W.-3, Patel Sahani, father of the Appellant.

6. However, no document has been exhibited by the

Appellant-Plaintiff.

7. (i) Savita Devi, the Appellant-Plaintiff has been

examined as P.W.-1. In her examination-in-chief, she has

reiterated the statement as made in her petition filed for divorce.

In her cross-examination, she has deposed that she was taking

care of her children along with her husband. She further

deposed that her first child was born after two years of marriage

and the second son was born after four years of marriage. She

has further deposed that she did not want to live with her

husband because he used to beat her. She has also lodged a Patna High Court MA No.114 of 2017 dt 25-08-2023

criminal case against her husband for the offence punishable

under Section 498A of the IPC.

7(ii). Sheela Devi, who is the mother of Appellant-

Plaintiff has been examined as P.W.-2. She, in her examination-

in-chief, has reiterated the statement as made by the Appellant-

Plaintiff in the petition filed for divorce. During her cross-

examination, she has deposed that the Appellant-Plaintiff got

selected in Bihar Police in the year 2007 and her first posting

was at Supaul, where her children used to stay with her. She

further deposed that at Supaul, the Appellant-Plaintiff and

Respondent-Defendant used to quarrel, however, she cannot tell

about the exact date of incident. She further deposed that both

the children of the Appellant-Plaintiff are living with their father

and now the the Appellant-Plaintiff has also applied for custody

of the children. She has also deposed that she does not know

with whom the Respondent-Defendant has illicit relationship.

7(iii). Patel Sahani, who is the father of the Appellant-

Plaintiff has been examined as P.W.-3. He, in his examination-

in-chief, has reiterated the statement as made by the Appellant-

Plaintiff in her petition filed for divorce, though, nothing else

significant has been deposed during cross-examination by this

witness.

Patna High Court MA No.114 of 2017 dt 25-08-2023

7(iv). Dharmendra Kumar, who is acquainted with

both the parties, has been examined as P.W.-4. In his

examination-in-chief, he has also reiterated the statement as

made by the Appellant-Plaintiff in her petition filed for divorce,

but nothing significant has been deposed by this witness during

cross-examination.

8. The Respondent-Defendant has examined the

following four witnesses:-

i. D.W.-1, Saket Kumar, son of the Respondent-Defendant.

ii. D.W.-2, Priyanshu Kumar, son of the Respondent-Defendant.

iii. D.W.-3, Pramod Kumar, villager of the Respondent-Defendant.

                          iv.     D.W.-4,          Nakshatra   Kumar,   the
                          Respondent-Defendant.

9. However, no document has been exhibited on his

behalf also.

10(i). Mr. Saket Kumar, who is the elder son of the

Respondent-Defendant, has been examined as D.W.-1, who, in

his examination-in-chief, has deposed that he was ousted by his

mother and since then he has been living with his father. Her

mother is in government service and since she is in government Patna High Court MA No.114 of 2017 dt 25-08-2023

service, her behaviour towards him and his brother and father

got changed and she started looking down upon them. She used

to torture them and after making false allegation, she got herself

separated from them. Initially, after getting Appellant-Plaintiff

employed in Bihar Police, he along with his brother and father

used to live with his mother, but for one year thereafter, he

along with his brother and father are living separately from the

Appellant-Plaintiff. Prior to that, whenever his father used to

visit his mother, he was abused by his mother with the

assistance of other police constables. He further deposed that his

father has no landed property and he maintains them by doing

labour work and his mother is earning ₹30,000/- per month. He

has also deposed that his mother does not want to live with him,

whereas his father along with him and his brother wants to live

with his mother. He has further deposed that when her mother

will get divorce, they will become orphan and his future will be

ruined. The statement of his mother is completely false. In his

cross examination, he has further deposed that his father looks

after him and his brother very well with love and affection and

he caters to their all needs including educational fee. However,

nothing else significant has been deposed by this witness.

10(ii). Priyanshu Kumar, who is the younger son of Patna High Court MA No.114 of 2017 dt 25-08-2023

Respondent-Defendant, has been examined as D.W.-2, who, in

examination-in-chief, has reiterated the statement as made by

his brother, Saket Kumar. In his cross-examination, he has

deposed that his father is unemployed and he used to give

tuition to some students and his mother is earning ₹30,000/- per

months. He has further deposed that even if his mother gets

ready to keep him, he will not go with her because her nature

and behaviour is very bad. He has also deposed that her mother

is living with someone else.

10(iii). Pramod Kumar Singh, who is a villager of

Respondent-Defendant and also acquainted with both the

parties, has been examined as D.W.-3, who, in his examination-

in-chief has reiterated the statement as made by the Respondent-

Defendant in his written statement. During his cross-

examination, nothing significant has been deposed by this

witness.

10(iv). Nakshatra Kumar, the Respondent-Defendant

has been examined as D.W.-4, who, in his examination-in-chief,

has reiterated the statement as made by him in his written

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

has no landed property and he is unemployed. He further

deposed that his marriage was solemnized with Appellant- Patna High Court MA No.114 of 2017 dt 25-08-2023

Plaintiff on 27.07.1996 and not on 25.08.1998. He further

deposed that he wants to keep his wife, but his wife is not

willing to live with him, but he has admitted that he has not filed

any petition under Section 9 of the Hindu Marriage Act for

restitution of conjugal life. He has further deposed that his wife

has filed a criminal case against him with the allegation of

demand of dowry. He has further deposed that for about 15-16

years, the relationship between them was very cordial and two

sons were born out of the wedlock. He further deposed that

when he was married with the Appellant-Plaintiff, she was 20-

21 years old and was studying in 9 th Class. It is the Respondent-

Defendant, who helped the Appellant-Plaintiff to pass

matriculation examination and also get her selected as constable

in Bihar Police. He has also deposed that he is keeping the

children with him and also bears all their expenses. He further

deposed that if the children get ready to live with their mother,

he will allow them to go with their mother. He has further

deposed that the Appellant-wife got selected as a constable in

Bihar Police on 10th March, 2007 and after the employment, he

also used to live with her in the government quarter allotted to

her for two years. However, nothing else significant has been

deposed by this witness.

Patna High Court MA No.114 of 2017 dt 25-08-2023

11. After considering the materials on record and

submission advanced on behalf of both the parties, the Family

Court had decided all the framed issues against the Plaintiff-

Appellant and in favour of the Respondent-Defendant. In regard

to issue nos. 1 and 2, related with maintainability of suit as

framed and valid cause of action to file the suit, the Family

Court has decided that in view of the finding in regard to the

issue nos. 3 to 6, the petition as framed is not maintainable and

the Appellant-Plaintiff had no valid cause of action to file the

suit.

12. Ld. counsel for the Appellant-Plaintiff submits

that Family Court has failed to properly appreciate the pleadings

and evidence on record and erroneously found that the

Appellant-Plaintiff had no cause of action to file the petition and

the petition as framed was not maintainable. He further submits

that the Appellant-Plaintiff has clearly proved the cruelty

committed by the Respondent-Defendant against the Appellant-

Plaintiff. He also submits that the appellant has also proved that

Respondent-Defendant had deserted the Appellant-Plaintiff and

hence she is entitled to get decree of divorce on the ground of

cruelty and desertion. He also submits that as per evidence on

record, the Appellant-Plaintiff is also entitled to get the custody Patna High Court MA No.114 of 2017 dt 25-08-2023

of both the minor sons, namely, Priyansu Kumar and Saket

Kumar, who are presently in the custody of the Respondent-

Defendant.

13. However, learned counsel for the Respondent-

Defendant-husband defends the finding of the Ld. Court below

and submits that the Appellant-Plaintiff had no cause of action

to file petition, nor the petition as framed was maintainable. He

also submits that the Appellant-Plaintiff has failed to prove the

alleged ground of cruelty and desertion against him. She has

also failed to prove her entitlement to get the custody of two

minor sons born out of the wedlock.

14. In view of the aforesaid submission and the facts

and circumstances of the case, following points arise for

consideration of this Court:-

(i) Whether the appellant had valid cause of action to file the divorce petition.

(ii) Whether the divorce petition as framed is maintainable.

(iii) Whether the Appellant-Plaintiff had proved the ground of cruelty to get decree of divorce.

(iv) Whether the Appellant-Plaintiff had proved the ground of desertion to get decree of divorce.

(v) Whether the Appellant-Plaintiff is entitled Patna High Court MA No.114 of 2017 dt 25-08-2023

to custody of two minor children, namely, Saket Kumar and Priyanshu Kumar, who are aged about 12 years and 10 years respectively at the time of presentation of the petition before the Family Court.

15. Let us consider the points one by one.

Point No.1

16. Before we consider this point, it is imperative to

know what is cause of action. It is relevant to point out that the

word "cause of action" is nowhere defined by the Civil

Procedure Code. However, it has been described by Hon'ble

Supreme Court on various occasions as a bundle of essential

facts which are required to be proved for obtaining relief as

sought for. It is also settled position of law that to see whether

the plaint discloses any cause of action, the Court is only

required to look into the averment made in the plaint and the

document, if any, filed in support of the plaint. It is also settled

position of law that reading of the plaint should be meaningful

and not formal. Clever drafting creating illusion of cause of

action can not be permitted. A clear right to sue must be shown

in the plaint. Reliance is placed on the following judgments of

Hon'ble Supreme Court:

1. Mayar (H.K.) Ltd. & Ors Vs. Owners & Patna High Court MA No.114 of 2017 dt 25-08-2023

Parties, Vessel M.V. Fortune as reported in (2006) 3 SCC 100.

2. I.T.C. Ltd, Vs. Debts Recovery Appellate Tribunal, as reported in (1998) 2 SCC 70.

3. T. Arivandanadam Vs. T.V. Satyapal and Anr. As reported in (1997) 4 SCC 467.

17. Hon'ble Supreme Court, in para 11 of Mayar

(H.K.) Ltd. case (supra) has observed- "Under Order VII Rule

11 of the Code, the court has jurisdiction to reject the plaint

where it does not disclose a cause of action............." In para

12 of Mayar (H.K.) Ltd. case (supra), Hon'ble Apex Court

has further observed that plaint cannot be rejected on the basis

of the allegations made by the defendant in his written statement

or in an application for rejection of the plaint. The court has to

read the entire plaint as a whole to find out whether it discloses

a cause of action and if it does, then the plaint cannot be rejected

by the court exercising the powers under Order VII Rule 11 of

the Code. Essentially, whether the plaint discloses a cause of

action, is a question of fact which has to be gathered on the

basis of the averments made in the plaint in its entirety taking

those averments to be correct. A cause of action is a bundle of

facts which are required to be proved for obtaining relief and for Patna High Court MA No.114 of 2017 dt 25-08-2023

the said purpose, the material facts are required to be stated but

not the evidence except in certain cases where the pleadings

relied on are in regard to misrepresentation, fraud, wilful

default, undue influence or of the same nature. So long as the

plaint discloses some cause of action which requires

determination by the court, the mere fact that in the opinion of

the Judge the plaintiff may not succeed cannot be a ground for

rejection of the plaint.

18. In para 16 of I.T.C. Limited Vs. Debts Recovery

Appellate Tribunal as reported in (1998) 2 SCC 70, Hon'ble

Supreme Court, after referring to T. Arvindandam case

(supra), has observed that the question is whether a real cause of

action has been set out in the plaint or something purely illusory

has been stated with a view to get out of Order 7 Rule 11 Civil

Procedure Code. clever drafting creating illusions of cause of

action are not permitted in law and a clear right to sue should be

shown in the plaint.

19. In para 5 of T. Arvindandam case (supra),

Hon'ble Supreme Court has observed that the Ld. Munsif

must remember that if on a meaningful -- not formal -- reading

of the plaint it is manifestly vexatious, and meritless, in the

sense of not disclosing a clear right to sue, he should exercise Patna High Court MA No.114 of 2017 dt 25-08-2023

his power under Order VII, Rule 11 Civil Procedure Code

taking care to see that the ground mentioned therein is fulfilled.

And, if clever drafting has created the illusion of a cause of

action, nip it in the bud at the first hearing by examining the

party searchingly under Order X, Civil Procedure Code.

20. Now the question is what are the essential facts

which constitute cause of action for the petitioner to file divorce

petition under Section 13 of the Hindu Marriage Act for

dissolution of his marriage with Respondent-Defendant and

seek custody of minor children born out of the wedlock. To

know the essential facts constituting cause of action to file

petition for divorce and custody of minor children, it is

imperative to examine the relevant statutory provisions. Now let

us see what are statutory provisions regarding the subject.

21. Section 13 of the Hindu Marriage Act provides

for dissolution of marriage on a petition presented by either of

husband or the wife by a decree of divorce on the ground as

enumerated thereunder. The grounds as provided in Section 13

of the Hindu Marriage Act are exhaustive in nature. Cruelty and

desertion are also provided as grounds for dissolution of

marriage under Sections 13(I)(ia) and (ib) respectively of the

Hindu Marriage Act. For ready reference Section 13 of the Patna High Court MA No.114 of 2017 dt 25-08-2023

Hindu Marriage Act reads as follows:-

"13. Divorce. - (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-

(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a 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 other disorder or disability of mind and includes Patna High Court MA No.114 of 2017 dt 25-08-2023

schizophrenia;

(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; or

(iv) 3 Omitted

(v) has been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;

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

(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may Patna High Court MA No.114 of 2017 dt 25-08-2023

also present a petition for the dissolution of the marriage by a decree of divorce on the ground-

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,-

(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner:

Provided that in either case the other Patna High Court MA No.114 of 2017 dt 25-08-2023

wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or 23 [bestiality; or]

(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or

(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Patna High Court MA No.114 of 2017 dt 25-08-2023

Explanation. This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)"

22. Regarding custody of child, the relevant statutory

provisions may be found in Section 7(1)(a) of the Guardians

and Wards Act, 1890, as per which, the court is empowered to

make order as to guardianship. It provides that if the court is

satisfied that for the welfare of a minor, an order should be

made appointing a guardian of his person, the court may make

order accordingly.

23. Again Section 13 of the Hindu Minority and

Guardianship Act, 1956, provides that in the appointment or

declaration of any person as guardian of a Hindu minor boy by a

Court, the welfare of the minor shall be the paramount

consideration. It is also provided that no persons shall be

entitled to the guardianship by virtue of the provisions of this

Act or of any law relating to guardianship in marriage among

Hindus, if the court is of opinion that his or her guardianship

will not be for the welfare of the minor.

24. Section 26 of the Hindu Marriage Act, 1955

provides that the court may, from time to time, pass such interim Patna High Court MA No.114 of 2017 dt 25-08-2023

orders and make such provisions in the decree as it may deem

just and proper with respect to the custody, maintenance and

education of minor children, consistently with their wishes,

wherever possible.

25. Now let us examine whether the Plaintiff-

Appellant has pleaded essential facts disclosing cause of action

for divorce and custody of minor children.

26. After perusal of the petition filed by the Appellant-

Plaintiff before the Ld. Court below under the Hindu Marriage

Act, it appears that there is averment in regard to alleged cruelty

committed by the Respondent-Defendant against the Appellant-

Plaintiff and desertion of the Appellant-Plaintiff by the

Respondent-Defendant. Averment has been also made in regard

to entitlement to the custody of two minor children. Hence, the

Family Court has wrongly found that the Appellant-Plaintiff had

failed to plead the cause of action to file the petition seeking

divorce and custody of the minor children. Perhaps such

erroneous finding has been given by the Ld. Court below under

wrong impression that cause of action and proof to get the relief

as prayed for is the same. Having cause of action by the

petitioner to file the petition does not mean that the petitioner is

bound to succeed to get the relief as prayed for. For succeeding Patna High Court MA No.114 of 2017 dt 25-08-2023

and getting relief, the petitioner is required to prove his or her

case as claimed and only having cause of action bereft of any

evidence to prove the grounds does not entitle the petitioner to

get the relief. Hence it is wrong to say that once there is finding

against the petitioner in regard to relief as prayed for, she has no

cause of action to file the divorce petition. Hence, this point is

decided in favour of the Appellant.

Point no.2

27. Here again, it appears that Ld. Court below is

under impression that maintainability of a petition and grant of

relief as prayed for are same, whereas the fact is that both are

different concepts. The maintainability of a petition is decided

with reference to Order VII Rule 10 and 11 of the Civil

Procedure Code. If the petition filed is not liable for return or

rejection under any provisions of Order VII Rule 10 and 11 of

the Civil Procedure Code, the petition is maintainable. Whether

the petitioner is entitled to get relief as prayed for is altogether

different thing. A petition may be maintainable, but the

petitioner ultimately may not get relief after trial. Grant of relief

depends upon whether the petitioner has proved his case or

required facts for entitlement to relief. But in the case at hand,

the Court has nowhere pointed out under which provisions of Patna High Court MA No.114 of 2017 dt 25-08-2023

law, the suit is not maintainable. Order VII, Rule 10 of the Civil

Procedure Code, provides for return of the plaint if the court has

no jurisdiction. Rule 10 of Order VII of the Civil Procedure

Code reads as follows:-

"10. Return of plaint.- (1) Subject to the provisions of rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

Explanation: For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint, under this sub- rule.

(2) Procedure on returning plaint--On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it."

28. The suit is also liable to be rejected if any of the

grounds as provided in Rule 11 of Order VII of the Civil

Procedure Code is available.

29. Order VII, Rule 11 of the Civil Procedure Code reads

as follows :

" 11. Rejection of plaint.- The plaint shall be rejected in the following cases:--

(a) where it does not disclose a cause of action; Patna High Court MA No.114 of 2017 dt 25-08-2023

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;ly stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails comply with the provision of Rule 9, provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp papers, as the case may be within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff."

30. Non-disclosure of cause of action is one of

grounds for rejection of plaint as provided under Order VII, Rule

11 of the Civil Procedure Code . We have already found that the

plaint has disclosed cause of action. No other ground for

rejection of the plaint has been found in the judgment. Without

such finding the Court cannot say that the petition is not

maintainable. Hence, such finding of the Court below cannot be

sustained. The petition is very much maintainable for absence of Patna High Court MA No.114 of 2017 dt 25-08-2023

any ground as provided under Order VII Rule 10 and 11 of the

Civil Procedure Code.

31. Before we proceed to discuss the next 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.

32. 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 positive than a negative. The petitioner

must therefore prove that the respondent has treated him with

cruelty.

33. 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 Patna High Court MA No.114 of 2017 dt 25-08-2023

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 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 Patna High Court MA No.114 of 2017 dt 25-08-2023

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 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.

34. Ruling out application of "proof beyond

reasonable doubt" in matrimonial cases, Hon'ble Supreme

Court, in para 25 of Dr. Narayan Ganesh Dastane case Patna High Court MA No.114 of 2017 dt 25-08-2023

(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 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.

35. Hon'ble Supreme Court, in para 27 of Dr. Patna High Court MA No.114 of 2017 dt 25-08-2023

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 accepted as a ground for the dissolution of a

marriage, has no bearing on the standard of proof in

matrimonial cases.

36. 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. Patna High Court MA No.114 of 2017 dt 25-08-2023

37. 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 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.

38. 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 Patna High Court MA No.114 of 2017 dt 25-08-2023

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.

39. Now let us consider the next point.

Point No.3.

40. Before considering whether the Respondent/Wife

has committed cruelty against the Appellant or not, it would be

imperative to see what is the statutory provisions and case laws

regarding cruelty.

41. Cruelty has been provided as one of the grounds

for divorce under Section 13(1)(ia) 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.

42. However, the word 'cruelty' used in Section 13(1)

(ia) 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.

43. The Hon'ble Supreme Court, in para 4 of Sobha Patna High Court MA No.114 of 2017 dt 25-08-2023

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

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.

44. The Hon'ble Apex Court in para 5 of Shobha Patna High Court MA No.114 of 2017 dt 25-08-2023

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

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 Patna High Court MA No.114 of 2017 dt 25-08-2023

conduct complained of. Such is the wonderful realm of cruelty.

45. 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

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.

46. 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 Patna High Court MA No.114 of 2017 dt 25-08-2023

case.

47. 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

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.

48. 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 Patna High Court MA No.114 of 2017 dt 25-08-2023

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

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.

Patna High Court MA No.114 of 2017 dt 25-08-2023

49. 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

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.

50. In Harbhajan Singh Monga Vs. Amarjeet Kaur

as reported in 1985 SCC OnLine MP 83, Hon'ble Madhya Patna High Court MA No.114 of 2017 dt 25-08-2023

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.

51. 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

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.

52. 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 Patna High Court MA No.114 of 2017 dt 25-08-2023

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.

53. 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.

Patna High Court MA No.114 of 2017 dt 25-08-2023

54. 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, level of

sensitivity, educational, family and cultural background,

financial position, social status, customs, traditions, religious

beliefs, human values and their value system.

55. 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 Patna High Court MA No.114 of 2017 dt 25-08-2023

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.

56. 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 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, Patna High Court MA No.114 of 2017 dt 25-08-2023

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.

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. Patna High Court MA No.114 of 2017 dt 25-08-2023

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

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

cruelty."

Patna High Court MA No.114 of 2017 dt 25-08-2023

57. 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.

Patna High Court MA No.114 of 2017 dt 25-08-2023

58. 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 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.

59. 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.

60. 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 Patna High Court MA No.114 of 2017 dt 25-08-2023

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 of the case.

61. 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 Patna High Court MA No.114 of 2017 dt 25-08-2023

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.

62. 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 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 Patna High Court MA No.114 of 2017 dt 25-08-2023

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.

63. Hon'ble Supreme Court has further

observed in Para-37 of the Vinita Saxena case (supra) what Patna High Court MA No.114 of 2017 dt 25-08-2023

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.

64. 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.

65. Now, let us examine point no. 3, whether the

Appellant-Plaintiff has proved the ground of cruelty to get Patna High Court MA No.114 of 2017 dt 25-08-2023

decree of divorce.

Point No.3

66. In the case on hand we find that in regard to

cruelty, the Plaintiff-Appellant/Wife has pleaded in her plaint

that she was subjected to physical and mental cruelty on

account of insufficient dowry and ornaments at the hands of

the Respondent-Husband and his relatives and she was

ultimately driven out from her matrimonial home after keeping

her belongings and ornaments and she has also lodged a

criminal case bearing complaint case no. 203 of 2013, pending

consideration in the Court of Ld. S.D.J.M. Katihar. It is also

pleaded that the salary was taken by the Husband/Respondent

under threat and coercion leaving her hand to mouth.

However, in his written statement, the Respondent/Husband

has denied all the allegations of cruelty and he has claimed

that after getting employed as a police constable, her

behaviour changed towards him and the children born out of

the wdlock and she developed disregard for him and his family Patna High Court MA No.114 of 2017 dt 25-08-2023

mmbers and she never took care of the children, nor spent any

money on them. He has further claimed that she has filed false

case only with the intent to make out grounds to get decree of

divorce. After perusal of the evidence on record, we find that

allegation of cruelty against the Respondent/Husband is

omnibus and general in nature and no date or place has been

given in his evidence in regard to the alleged instances of

cruelty. We further find that the marriage was solemnized in

the year 1998 and the Appellant-Wife got employed as police

constable on the 10th March, 2007 and divorce has been filed

on 19.08.2013 and out of the wedlock two sons are born and

both are examined as D.W.-1 and D.W.-2. The criminal case

lodged by the Appellant-Wife is still under consideration of the

Court. On the other hand, the Respondent/Husband has

deposed that false allegation of cruelty has been levelled only

with the intent to get rid of him by decree of divorce. D.W.-1

and 2, Saket Kumar and Priyanshu Kumar who are sons of the

parties to the marriage have deposed that the allegation made

by his mother against his father is false and she does not want Patna High Court MA No.114 of 2017 dt 25-08-2023

to live with them. The evidence of the Respondent-Husband

and the sons of the parties to the marriage gets credence in

view of the fact that before her joining as a police constable,

there was no allegation of any sort against the husband and it

is further found that after joining as police constable in the

year 2007, she was living at her place of posting and her

husband and children have lived with her only for about two

years at her government quarter i.e up to the year of 2009 and

thereafter, there is no occasion for the Respondent/Husband to

commit cruelty against her because thereafter, she did not

allow them to live with her and during this period of two years

when both the parties lived together, there is no allegation of

any specific instance of cruelty either in the pleadings or in the

evidence.

67. As such, in totality of the evidence on record,

we find that no instance has been proved by the

Plaintiff/Appellant-Wife, which may be construed as cruelty in

the strict sense of the term as provided under Section 13 of the Patna High Court MA No.114 of 2017 dt 25-08-2023

Hindu Marriage Act, as we have already seen what the cruelty

under the Act means. The wife/Plaintiff, who is Appellant

herein, has failed to prove any misconduct on the part of

Respondent/Husband which could be considered grave and

weighty giving reasonable apprehension to him of such a

danger which could make it unsafe for her to continue the

matrimonial life with the Respondent/Husband. There may

have been ordinary wear and tear in the matrimonial life of the

parties, but certainly no cruelty is found to have been

committed by the Respondent/Husband towards the

Appellant/Wife. Hence, this point is decided against the

Respondent-Plaintiff and in favour of the Appellant-

Defendant.

                                                   Point No.4


                         68. Now, let us examine the            point. Before

considering this point related with Desertion, it would be

again imperative to see what is the statutory provisions and

case laws on the subject.

Patna High Court MA No.114 of 2017 dt 25-08-2023

69. 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 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.

70. 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 Patna High Court MA No.114 of 2017 dt 25-08-2023

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

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 Patna High Court MA No.114 of 2017 dt 25-08-2023

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.

71. 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

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 Patna High Court MA No.114 of 2017 dt 25-08-2023

conduct and expression of intention, both anterior and

subsequent to the actual acts of separation.

72. 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

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.

73. Hon'ble Supreme Court, in para 7 of Debananda

Tamuli Vs. Kakumoni Kataky as reported in (2022) 5 SCC Patna High Court MA No.114 of 2017 dt 25-08-2023

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 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.

74. Now, coming to the case on hand, we find that in

regard to desertion, the Appellant-Wife has pleaded in her plaint

that she was subjected to cruelty on account of insufficient

dowry and ultimately, she was ousted from the matrimonial

home. It is also pleaded that she has strong apprehension of

untoward instance at the instance of the Respondent/Husband

and she is no longer willing to proceed with her matrimonial

relationship with the Respondent/Husband. The allegation has

been strongly denied by the Respondent/Husband in his written Patna High Court MA No.114 of 2017 dt 25-08-2023

statement.

75. Coming to the evidence of the parties we find that in

her examination-in-chief she has reiterated her statement as

made in her plaint and even during the cross examination

nothing significant has been deposed by her regarding desertion.

76. After perusal of the evidence of both the parties, we

find that the divorce petition has been filed on 19.08.2013.

Prior to divorce petition, she had got appointed as police

constable in the year 2007 and since then she has been living in

her government quarter and as per the evidence on record we

find that she did not allow the husband and children after two

years of her service in the government quarter.

77. On the other hand, the Respondent/Husband has all

along maintained that he wants to live with her but on account

of financial independence after getting government job, she has

changed and she wants to get rid of him. Hence, she has made

false allegation to get divorce. The Appellant/Wife has also not

filed any matrimonial petition under section 9 of the Hindu

Marriage Act for restitution of conjugal rights. This instance

also goes against her and gives credence to the case of the

Respondent/Husband that she does not want to continue with

the marriage and she has made false allegation for the sake of Patna High Court MA No.114 of 2017 dt 25-08-2023

getting decree of divorce against him. We also find that there is

no specific statement either in the pleading or in the evidence on

the part of the Appellant/Wife regarding when the Respondent-

Husband abandoned her without her consent and without any

reasonable cause with intent to bring cohabitation to a

permanent end. As such, the Plaintiff/Appellant has failed to

prove the ground of desertion to get decree of divorce.

78. Hence, this point is also decided against the

Appellant/Wife and in favour of the Respondent/Husband.

Point No.5

79. Now, let us examine the point no. 5 regarding

entitlement of the Appellant-Plaintiff to the custody of two

minor children born out of the wedlock between the parties.

80. Here it is relevant to point out that the suit was filed

by the Appellant-Plaintiff before the Family Court on

19.08.2013 as transpires from the Family Court records and at

that time, the minor children, namely Saket Kumar and

Priyanshu Kumar were aged about 12 years and 10 years

respectively. However, at present, both the children have grown

up as major. Saket Kumar is about 22 years and Priyanshu

Kumar is about 20 years of age. Hence, neither of the parties is

entitled to custody of the children because question of custody Patna High Court MA No.114 of 2017 dt 25-08-2023

of children arises only when the children are minor, but they

have already become major. Hence, the question regarding

custody of children becomes infructuous. Major children are at

liberty to decide where and with whom to live.

81. 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. The present appeal is

dismissed, accordingly, upholding the impugned judgment. Both

the parties shall bear their own costs. Let the decree be drawn

accordingly.

82. The Registrar General is directed to circulate a

copy of this judgment amongst all the Presiding Officers of the

Family Courts and send a copy to the Director of Bihar Judicial

Academy for needful.

(Jitendra Kumar, J)

(P. B. Bajanthri, J) Amrendra/Chan dan/-

AFR/NAFR                AFR
CAV DATE                11.07.2023
Uploading Date          25.08.2023
Transmission Date