Citation : 2025 Latest Caselaw 2432 Patna
Judgement Date : 26 March, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.307 of 2015
======================================================
Sangita Kumari, wife of Surendra Kumar Himansu, daughter of Binod Yadav,
resident of Village-Tahbal Bigha, P.O-Chhoriyari, P.S.-Makdumpur, District-
Jehanabad, at present, residing at Village-Alua Bigha, P.S.-Makdumpur,
District-Jehanabad
... ... Appellant/s
Versus
1. Surendra Kumar Himansu, son of Ram Dahin Yadav, resident of Village-
Tahbal Bigha, P.O-Chhoriyari, P.S.-Makdumpur, District-Jehanabad
2. Shailendra Kumar @ Akash Kumar, son of Sheojanam Yadav, resident of
Village-Tehbal Bigha, P.S-Makhdumpur, District-Jehanabad
... ... Respondent/s
======================================================
with
CRIMINAL REVISION No. 584 of 2015
Arising Out of PS. Case No.- Year-1111 Thana- District-
======================================================
Sangita Kumari, wife of Surendra Kumar Himansu, daughter of Binod Yadav,
at present residing at Village-Alva Bigha P.S.-Makdumpur, District-
Jahanabad.
... ... Petitioner/s
Versus
1. The State of Bihar
2. Surendra Kumar Himansu, son of Ramdahin Yadav, resident of Village-
Tahbal Bigha, P S.-Makdumpur, District-Jehanabad, posted in Air-force
Station Kanpur, Chakeri, Uttar Pradesh
... ... Respondent/s
======================================================
with
CRIMINAL REVISION No. 618 of 2015
Arising Out of PS. Case No.- Year-1111 Thana- District-
======================================================
Surendra Kumar Himanshu, son of Ram Dahin Yadav, resident of Village-
Tahbal Bigaha, P.S.- Makhdumpur, District- Jehanabad
... ... Petitioner/s
Versus
1. The State of Bihar
2. Sangita Kumari, daughter of Binod Yadav, resident of village- Alua Bigha,
P.S.- Makhdumpur, District- Jehanabad
Patna High Court MA No.307 of 2015 dt.26-03-2025
2/23
... ... Respondent/s
======================================================
Appearance :
(In Miscellaneous Appeal No. 307 of 2015)
For the Appellant/s : Mr. Uday Kumar, Adv
For the Respondent/s : Mr.
(In CRIMINAL REVISION No. 584 of 2015)
For the Petitioner/s : Mr.Uday Kumar, Adv
For the Respondent/s : Mr.Lalan Kumar, APP
(In CRIMINAL REVISION No. 618 of 2015)
For the Petitioner/s : Mr. Dr. Binay Kumar Singh, Adv
For the Respondent/s : Mr.H.A.Khan, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
And
HONOURABLE MR. JUSTICE S. B. PD. SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. B. PD. SINGH)
Date : 26-03-2025
In these bunch of cases, the issues are common and
interrelated, as such, all have been heard together and are
being disposed of by this common judgment. The reliefs
sought by the appellant/petitioner are as under:-
2. Miscellaneous Appeal No. 307 of 2015 (Sangita
Kumari versus Surendra Kumar Himansu)
"That instant appeal is being preferred
against the decree of dissolution of marriage
dated 08.05.2015 passed by the learned
Principal Judge, Family Court, Jehanabad in
Matrimonial Case No. 66/2023 whereby and
where under the learned Principal Judge,
Family Court, Jehanabad has been pleased to
decree the Matrimonial Suit No. 66/2023 in
Patna High Court MA No.307 of 2015 dt.26-03-2025
3/23
favour of plaintiff (Respondent here) without
considering the legal aspects and the reply
filed by the appellant."
3. Criminal Revision No. 584 of 2015(Sangita
Kumari versus Surendra Kumar Himansu)
"That this revision application is
being filed on behalf of the petitioner against
the order dated 08.05.2015 passed by the
learned Principal Judge, Family Court,
Jehanabad in Maintenance Case No. 81 of
2014 whereby and whereunder the learned
Principal Judge, Family Court, Jehanabad
has been pleased to allow the maintenance
only Rs. 5000/- per month whereas demand of
petitioner is Rs. 20,000/- per month for her
livelihood."
4. Cr. Revision No. 618 of 2015(Surendra Kumar
Himanshu versus The State of Bihar & Ors)
"That the revision petition is
directed against the order dated 08.05.2015
passed by learned Court of Principal Judge,
Family Court, Jehanabad in Maintenance
Case No. 81/2014 filed under Section 125
Cr.P.C by opposite party no. 2 whereby and
whereunder learned Court has been pleased
to direct the petitioner to pay Rs. 5000/- as
Patna High Court MA No.307 of 2015 dt.26-03-2025
4/23
maintenance to the opposite party no. 2 on
or before 15th of each successive month from
the date of the order and in default to pay
the same, the opposite party no. 2 may move
before the court to get the same through the
process of law."
Miscellaneous Appeal No. 307 of 2015
5. Heard the parties.
6. The present appeal has been filed under Section
19(1) of the Family Court Act, 1984 impugning the
judgment dated 08.05.2015 passed by learned Principal
Judge, Family Court, Jehanabad in Matrimonial Case No.
66 of 2013, whereby the matrimonial suit, preferred by the
respondent-husband, for a decree of divorce, on dissolution
of marriage, has been allowed.
7. The case of the respondent-husband as per
petition filed before the Family Court is that the marriage of
the respondent-husband with appellant-wife was
solemnized on 11.07.2000 as per Hindu Rights and
Customs and after marriage, they lived together as husband
and wife for about three months. After marriage, the
respondent-husband came to know that the appellant-wife
Patna High Court MA No.307 of 2015 dt.26-03-2025
5/23
was in close proximity with his co-villager who has been
made party as respondent No. 2. The respondent No. 2
always used to come to the house of the respondent-
husband and he never objected as he considered it as a
social visit. One day, when the respondent-husband returned
to his home, he found the appellant-wife and respondent
No. 2 inside the house with the outer door bolted from
inside. The respondent-husband tried his best to convince
his wife (appellant) not to indulge with respondent No. 2
but his advice was not followed by the appellant-wife. The
respondent-husband also advised respondent No. 2 not to
indulge with the appellant-wife but he also did not follow
his advice. On 27.11.2012, when the respondent-husband
returned back from the market, he found his bed-room
locked from inside. On alarm raised, the appellant-wife and
respondent No. 2 came outside the room in a very ashamed
condition. The respondent-husband caught the appellant-
wife and respondent No. 2 red handed living in adultery.
Thereafter, the appellant-wife filed Complaint Case No.
1055 of 2012 on 09.01.2013 which was transmitted to
Mahila P.S. Case No. 12 of 2013 on 04.02.2013 under
Patna High Court MA No.307 of 2015 dt.26-03-2025
6/23
Section 498(A) of the Indian Penal Code against the
respondent-husband and her other in-laws family members
for the alleged allegation of torture and demand of dowry.
After knowing the aforesaid illicit relationship of the
appellant-wife and her filing a false criminal case against
the respondent-husband and other in-laws family members,
it was not possible for the respondent-husband to live with
the appellant-wife. Hence, he filed Matrimonial Case no. 66
of 2013 for dissolution of marriage against the appellant-
wife.
8. After filing of the above case, the appellant-wife
appeared in response to the summon/notice issued by the
Court and filed her reply/written statement.
9. It is submitted by learned counsel for the
appellant-wife that marriage between the appellant-wife and
the respondent-husband was solemnized as per Hindu rights
and rituals on 11.07.2000 and after marriage the appellant-
wife went to her matrimonial house and peacefully lived for
some times, but thereafter her in-laws family members
started torturing her for non-fulfillment of dowry demand.
The torture further became intensified when her husband
Patna High Court MA No.307 of 2015 dt.26-03-2025
7/23
(respondent No.1) got an appointment in AIR Force. The
appellant-wife informed to her parents regarding torture by
her in-laws and her parents also tried to pacify the matter
but all their efforts went in vein. Ultimately, the appellant-
wife informed to Jehanabad Mahila Police Station regarding
torture and demand of dowry. On the intervention of the
police, the matter was compromised and the appellant-wife
went to her matrimonial house, however, after some times,
she was again tortured by her in-laws family members
including the respondent No.1. The appellant-wife,
thereafter filed Complaint Case No. 1055 of 2012 on
09.01.2013
which was registered as Mahila P.S. Case No.
12 of 2013 on 04.02.2013 under Section 498 (A) of the
Indian Penal Code. The appellant-wife is always ready to
live with her husband (respondent No. 1) but it is the
respondent No.1 who does not want to live with the
appellant. The respondent No. 1 also undertook before this
Hon'ble Court in a bail petition, to keep the appellant-wife
with full dignity and honour but he has not complied the
undertaking given before this Hon'ble Court. The appellant-
wife further submitted that she bears a good character and Patna High Court MA No.307 of 2015 dt.26-03-2025
adultery has been alleged by the respondent-husband only
to get divorce from the appellant-wife.
10. On the basis of the rival contentions of both the
parties, following issues were framed in this case by the
learned Court below:-
1. Whether the case as framed is maintainable?
2. Whether the petitioner has cause of action to file this case?
3. Whether the petitioner was subjected to cruelty by the opposite party.?
4. Whether the appellant is entitled for the decree of dissolution of marriage?
5. Whether the petitioner is entitled to relief as claimed for?
6. Whether the petitioner is entitled to any other relief or reliefs?
11. During course of trial, altogether four witnesses
have been produced on behalf of the respondent-husband
which are P.W. 1 Ram Dahin Yadav (father of respondent-
husband), P.W. 2 Surendra Kumar Himanshu (respondent-
husband), P.W. 3 Sona Devi and P.W. 4, Sukhendra Kumar
(brother of respondent-husband).
12. On behalf of the appellant/O.P., four witnesses Patna High Court MA No.307 of 2015 dt.26-03-2025
have been produced who are O.P.W. 1 Saroj Devi (mother
of appellant), O.P.W. 2 Vinod Yadav (father of appellant),
O.P.W. 3 Shambhu Kumar (uncle of appellant) and O.P.W. 4
Sangita Kumari (appellant herself).
13. After conclusion of the trial, the learned
Principal Judge, Family Court has held that respondent-
husband has proved that he was subjected to cruelty at the
hands of the appellant-wife as well as deserted by the
appellant-wife and the case filed by the respondent-husband
is maintainable and also the respondent-husband has valid
cause of action to file the instant case. Accordingly, the
Family Court came to the conclusion that the appellant was
entitled for decree of divorce on the ground of cruelty as
well as desertion and the suit was decreed accordingly and
the marriage between the appellant-wife and the
respondent-husband was dissolved by a decree of
dissolution of marriage.
14. Thereafter, being aggrieved and dissatisfied with
the aforesaid judgment and decree passed by the learned
Court below in Matrimonial Case No. 66 of 2013, the
present appeal has been filed by the appellant-wife. Patna High Court MA No.307 of 2015 dt.26-03-2025
15. Learned counsel appearing on behalf of the
appellant-wife has submitted that the judgment and decree
passed by the learned Court below is bad and appears to be
mechanically passed without application of judicious mind.
The learned Principal Judge has not considered the fact that
marriage of the appellant-wife with the respondent-husband
was solemnized in the year 2000 and since then there is no
complaint regarding the illicit relationship of the appellant-
wife with the respondent No. 2 and after expiry of twelve
years of marriage, a matrimonial suit was filed by the
respondent-husband making allegation about bad character
of appellant-wife though respondent-husband has no valid
legal evidence to prove his case. Learned Principal Judge
has also not considered this fact that said Matrimonial suit
was filed by the respondent-husband after institution of
Mahila P.S. Case No. 12 of 2013 by the appellant-wife
against the respondent-husband and other in-laws family
members which reflects that only to save his skin, the
respondent-husband has filed the Matrimonial Suit for
dissolution of marriage. Learned Court below has not
considered the fact that there is much contradiction in the Patna High Court MA No.307 of 2015 dt.26-03-2025
statement of the witnesses adduced by the respondent-
husband. The respondent-husband has also not produced
any legal evidence to prove the cruelty done by the
appellant-wife. The Principal Judge has also committed a
grave mistake in allowing the Matrimonial suit by ignoring
this fact that appellant-wife was always ready to live with
the respondent-husband and he has not produced any legal
valid document nor any evidence to prove the alleged
allegation of adultery, cruelty or desertion against the
appellant-wife.
16. Per contra, learned counsel appearing on behalf
of the respondent-husband has submitted that the impugned
judgment and decree is just legal and in accordance with
law. The learned Trial Court has rightly appreciated the
evidence adduced on behalf of both the parties in the right
perspective and has correctly allowed the matrimonial suit
and rightly dissolved the marriage by a decree of
dissolution of marriage.
17. In view of the rival contentions and the
arguments adduced on behalf of the appellant-wife and
respondent-husband as well as the evidences brought on Patna High Court MA No.307 of 2015 dt.26-03-2025
record, the main points for determination in this appeal are
as follows:-
(i) Whether the appellant is entitled to the relief sought for in his petition/appeal.
(ii) Whether the impugned judgment of Principal Judge, Family Court, Patna is just, proper and sustainable/tenable in the eyes of law.
18. After perusal of the materials available on record
and consideration of submissions made by learned counsel
for the appellant-wife and respondent-husband, we find that
respondent-husband has not adduced any legal documentary
evidence or any other evidence to prove that appellant-wife
had illegal relationship with Shailendra Kumar (respondent
No. 2). Though P.W. 1 Ram Dahin Yadav has deposed in his
examination-in-chief about illegal relationship of his
daughter-in-law (appellant-wife) with Shailendra Kumar
(respondent No. 2) but in his cross-examination at para-6,
this witness has deposed that Shailendra Kumar (respondent
No. 2) is his nephew and he has never seen the appellant-
wife and Shailendra Kumar (respondent No. 2) in
compromising position. He has also deposed that he has not Patna High Court MA No.307 of 2015 dt.26-03-2025
registered any complaint against respondent No. 2 when he
came to know about the illegal relationship of respondent
No. 2 with his daughter-in-law (appellant) nor he has called
for any Panchayati in this regard which suggests that for
getting benefits in matrimonial suit filed for dissolution of
marriage, false allegation of illicit relationship has been
developed against the appellant-wife.
19. The respondent-husband has been examined as
P.W. 2, who has deposed during trial in his cross-
examination that he has no documentary proof regarding
illegal relationship of appellant-wife with respondent No. 2
nor he has filed any complaint against respondent No. 2 for
adulatory against his wife (appellant). He has also not
explained as to why matrimonial case was filed after 12
years of marriage and that too after filing of a complaint by
the appellant-wife against the respondent-husband and other
in-laws family members. The respondent-husband (P.W. 2)
has deposed in para 16 of his cross-examination that on
27.11.2012 he came to know about the illicit relationship of
appellant-wife and respondent No. 2 when he had seen them
in a compromising position, but he has not filed any Patna High Court MA No.307 of 2015 dt.26-03-2025
complaint against respondent No. 2 for adulatory or rape.
Further in para 17 of his cross-examination, P.W. 2 has
deposed that before filing of the present suit, appellant-wife
had filed a case against the respondent No.1 and other in-
laws family members which suggests that to settle the score
with his wife (appellant), respondent No. 1 has filed a suit
for dissolution of marriage against the appellant.
20. P.W. 3 Sona Devi has deposed in para 7 of her
cross-examination that on 27.11.2012 when the respondent-
husband caught the appellant-wife and respondent No. 2 in
compromising position she was there but no other family
member of respondent-husband was present there, however,
P.W. 4 Sukhendra Kumar, who is brother of respondent-
husband has deposed a contradictory statement in para 9 of
his cross examination that he was present on 27.11.2012
when his brother (respondent-husband) caught the
appellant-wife and respondent No. 2 in compromising
position. She has further deposed in para-8 of her cross
examination that earlier also the in-laws family members of
the appellant-wife used to stop the respondent No. 2 from
coming into their house which suggests that they were Patna High Court MA No.307 of 2015 dt.26-03-2025
aware about the illegal act of appellant-wife with
respondent No. 2, but they have not filed any complaint
against the appellant-wife or respondent No. 2 and suddenly
after filing of Mahila P.S. Case No. 12 of 2013 by the
appellant-wife, the respondent-husband has filed
matrimonial suit for dissolution of marriage.
21. P.W. 4 Sukhendra Kumar is the brother of
respondent-husband who has deposed in para-11 of his
cross-examination that before filing of a suit for dissolution
of marriage by the respondent-husband, appellant-wife has
filed a criminal case against the respondent-husband and
other in-laws family members.
22. Learned Principal Judge has not considered the
deposition of O.P.W-1 Saroj Devi who is mother of the
appellant-wife who has deposed in para 8 of her cross-
examination that after marriage the appellant-wife went to
her matrimonial house and resided there for about three
months. The appellant-wife, thereafter, came to her parental
house but thereafter her in-laws never came to see the
appellant-wife. She further deposed in para 8 of her cross-
examination that after compromise in Mahila Police Station, Patna High Court MA No.307 of 2015 dt.26-03-2025
the appellant-wife was brought to her matrimonial house on
25.09.2012 and on 27.11.2012 an allegation was levelled
against the appellant-wife that she was caught with
respondent No. 2 in compromising position without any
cogent and relevant material evidence, which suggests that
respondent-husband was not interested to continue his
matrimonial relationship with the appellant-wife and as
soon as she forced upon the respondent-husband to carry his
matrimonial obligation, he used tactics to come out from the
matrimonial obligation by claiming adultery/illegal
relationship of the appellant-wife with respondent No. 2
though without having any legal documentary proof.
23. So far as, the ground of cruelty for taking
divorce is concerned, the word 'cruelty' has not been
defined in specific words and language in the Hindu
Marriage Act, 1955, but it is well settled position that
cruelty is such of character and conduct as cause in mind of
other spouse a reasonable apprehension that it will be
harmful and injurious for him to live with O.P.- respondent.
24. It is observed by the Hon'ble Apex Court in
leading case of Samar Ghose vs. Jaya Ghose reported in Patna High Court MA No.307 of 2015 dt.26-03-2025
2007 (4) SCC 511 that a 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. More trivial
irritations, quarrel, normal wear and tear of the married live
which happens in day-to-day live would not be adequate for
grant of divorce on the ground of mental cruelty.
25. In this context, we are tempted to quote the
golden observation made by the Hon'ble Apex Court during
decision in case of Narain Ganesh Dastane vs. Sucheta
Naraih Dastane reported in, AIR 1975, 1534, which are as
follows:-
"One other matter which needs to be clarified is that though under Section 10(1)
(b), the apprehension of the petitioner that it will be harmful or injurious to live with the other party has to be reasonable, it is wrong, except in the context of such apprehension, to import the concept of a reasonable man as known to the law of negligence of judging of matrimonial relations. Spouses are undoubtedly supposed and expected to Patna High Court MA No.307 of 2015 dt.26-03-2025
conduct their joint venture as best as they might but it is no function of a court inquring into a charge of cruelty to philosophise on the modalities of married life. Some one may want to keep late hours of finish the day's work and some one may want to get up early for a morning round of golf. The court cannot apply to the habits or hobbies of these the test whether a reasonable man situated similarly will behave in a similar fashion. "The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an Individual under one set of circumstances may be extreme cruelty under another set of circumstances". The Court has to deal, not with an ideal husband and ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably Patna High Court MA No.307 of 2015 dt.26-03-2025
have no occasion to go to a matrimonial court for, even if they may not be able to draw their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures."
26. After going through the above entire
documentary and oral evidences adduced on behalf the
appellant-wife, it is crystal clear that learned Principal
Judge has committed an error in allowing the matrimonial
suit filed on behalf of the respondent-husband for
dissolution of marriage as the respondent-husband has
failed to prove the cruel behaviour of the appellant-wife
towards him and his family members by the strength of
cogent, relevant and reliable evidence, while burden of
prove of cruelty rests upon the respondent-husband of this
case, because, he has sought relief of divorce on the basis of
cruel behaviour of the appellant-wife towards him. Not
even single alleged incident with reference to date of
alleged cruelty has been urged in the plaint before the
Family Court. Furthermore, alleged illicit relationship/
adultery of appellant-wife with respondent No. 2 has no
legal value as the said allegation has not been corroborated Patna High Court MA No.307 of 2015 dt.26-03-2025
with any cogent, oral and documentary evidence. Certain
flimsy act or omission or using some threatening and harsh
words may occasionally happen in the day-to-day conjugal
life of a husband and wife to retaliate the other spouse but
that cannot be a justified/sustainable ground for taking
divorce. Some trifling utterance or remarks or mere
threatening of one spouse to other cannot be construed as
such decree of cruelty, which is legally required to a decree
of divorce. The austerity of temper and behaviour, petulance
of manner and harshness of language may vary from man to
man born and brought up in different family background,
living in different standard of life, having their quality of
educational qualification and their status in society in which
they live.
27. So far as ground of desertion is concerned, it has
come in the evidence of the respondent-husband (PW-2)
that appellant-wife was caught in compromising position
with respondent No. 2 at her matrimonial house which
suggests that appellant-wife was residing with him in her
matrimonial house. So, on the ground of desertion also, the
appellant is not entitled to get any decree of divorce. Patna High Court MA No.307 of 2015 dt.26-03-2025
28. Thus, considering the above entire aspects of
this case and evidence adduced on behalf of both the
parties, we find that learned Principal Judge, Family Court,
Jehanabad has not appreciated the evidence adduced on
behalf of the appellant-wife in right perspective while
allowing the Divorce petition in favour of the respondent-
husband. We find that respondent-husband has failed to
prove the allegation of cruelty, much less, the decree of
cruel behaviour of appellant-wife which is legally required
for grant of decree of divorce under section 13(1) (ia) of the
Hindu Marriage Act as also the respondent-husband has
failed to prove that the appellant-wife has deserted the
respondent-husband. The respondent-husband has also
failed to brought on record any proof regarding adulterous
life or illegal physical relationship of the appellant-wife
with respondent No. 2.
29. Hence, we find merit in the present appeal
warranting interference in the impugned judgment.
30. Accordingly, the order dated 08.05.2015 passed
by learned Principal Judge, Family Court, Jehanabad in
Matrimonial Case No. 66 of 2013 allowing the decree of Patna High Court MA No.307 of 2015 dt.26-03-2025
dissolution of marriage between the appellant-wife and
respondent-husband, is set aside.
31. The present appeal stands allowed.
Criminal Revision No. 584 of 2015(Sangita Kumari
versus Surendra Kumar Himansu)
32. The present revision application has been filed
by the petitioner-Sangita Kumari against the order dated
08.05.2015 passed by the learned Principal Judge, Family
Court, Jehanabad in Maintenance Case No. 81 of 2014
whereby and whereunder the learned Principal Judge,
Family Court, Jehanabad has been pleased to allow Rs.
5000/- per month to the petitioner as maintenance.
33. The petitioner is at liberty to file appropriate
application before appropriate forum for enhancement of
maintenance amount which was allowed by the Principal
Judge, Family Court, Jehanabad.
34. Accordingly, the present revision petition stands
disposed of.
Cr. Revision No. 618 of 2015(Surendra Kumar
Himanshu versus The State of Bihar & Ors)
35. Since the judgment of learned Principal Judge, Patna High Court MA No.307 of 2015 dt.26-03-2025
Family Court, Jehanabad in Matrimonial Case No. 66,
annulling the marriage between the appellant-wife and
respondent-husband has been set aside, the present revision
petition has no leg to stand.
36. Accordingly, Cr. Revision No. 618 of 2015
stands dismissed.
( S. B. Pd. Singh, J)
(P. B. Bajanthri, J)
Shageer/-
AFR/NAFR AFR CAV DATE 22/11/2024 Uploading Date 26/03/2025 Transmission Date 26/03/2025
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