Dheeraj Kumar Lal Vs Smita Gupta

¶1

2025:JHHC:36361-DB

¶2

IN THE HIGH COURT OF JHARKHAND AT RANCHI

¶3

First Appeal No.129 of 2024

¶4

-----

¶5

Dheeraj Kumar Lal, aged about 37 years, son of Sri Chandra Kishore Lal Tiwary, resident of House No.40, Block No.3, Shastri Nagar, P.O & P.SKadma, Town-Jamshedpur, District-Singhbhum East, State-Jharkhand

¶6

.......… Petitioner/Appellant

¶7

Versus

¶8

Smita Gupta, aged about 45 years, wife of Sri Dheeraj Kumar Lal and daughter of Sri Lalan Prasad Gupta, presently resident of Near Korra Chauk, Durga Mandap, P.O & P.S-Hazaribagh, District-Hazaribagh, State-Jharkhand ......... Respondent

¶9

¶10

CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE ARUN KUMAR RAI

¶11

¶12

For the Appellant : Mr. Devesh Ajmani, Advocate For the Respondent : Mr. Shailendra Jit, Advocate

¶13

¶14

Order No.07/Dated:4^th December, 2025

¶15

Per Sujit Narayan Prasad, J.

¶16

The instant appeal under section 19(1) of the Family Courts Act,

¶17

1984 is directed against the judgment dated 05.03.2024 and the decree dated 22.03.2024 passed in Matrimonial Suit No.57 of 2015 by the learned Principal Judge, Family Court, Jamshedpur (in short, Family Judge) whereby and whereunder the petition filed under section 13(1) (i) (i-a) (i-b) of the Hindu Marriage Act, 1955 by the appellant-husband against the respondent-wife has been dismissed.

¶18

The brief facts of the case as pleaded in the plaint having been recorded by the learned Family Judge, needs to be referred herein as:

¶19

(i) The case of the petitioner/appellant is that he was married in accordance with Hindu rites and customs with respondent-Smita Gupta on 07.02.2006 at Hazaribagh.

¶20

2025:JHHC:36361-DB

¶21

(ii) It is pleaded that the marriage between the parties was solemnized without dowry and the amount incurred in purchase of Maruti Van gifted at the time of marriage by the father of the respondent was paid by the father of the appellant.

¶22

(iii) It is alleged that after marriage the respondent came to her matrimonial home on 28.03.2006 but stayed there only for a fortnight and went back to her parents’ house with her brother.

¶23

(iv) It is alleged that the respondent did not discharge her marital obligation as she had no knowledge of even cooking and she used to abuse the appellant and his family and refused to establish physical relationship with the appellant.

¶24

(v) That the appellant is working with Tata Steel Ltd. and living with his old parents and younger brother who is a student of MBA.

¶25

(vi) It is alleged that the respondent has failed to do her matrimonial obligation and threatened to implicate the appellant and his family members in false case and to commit suicide. He pressurized the appellant to give Rs.4 lakhs and transfer the land in favour of her father and she refused to take care of her inlaws.

¶26

(vii) On 18.06.2008 the respondent left his partially flooded house taking all her belongings including gold ornaments and Rs.20,000/- cash.

¶27

2

¶28

2025:JHHC:36361-DB

¶29

(viii) Thereafter, the appellant approached the respondent and her parents on 27.11.2011 with his family to reconcile the matter but they insulted and assaulted the appellant and his family members and the respondent did not agree to come with the appellant.

¶30

(ix) Due to adamant attitude of the respondent, the appellant had filed a suit for restitution of conjugal rights being Matrimonial Suit No.408 of 2011 but due to her unwillingness to resume marital ties, he withdrew the said suit.

¶31

(x) Thereafter, the appellant had no option but to file a suit for divorce due to her refusal to continue her matrimonial life.

¶32

On the aforesaid ground of cruelty and desertion, the appellanthusband has prayed for a decree of dissolution of the marriage between him and the respondent-wife.

¶33

It needs to mention herein that in Matrimonial Suit No. 57 of 2015, upon issuance of the notices, the respondent-wife had appeared and filed a written statement denying all the allegations levelled against her by the appellant-husband.

¶34

She admitted about her marriage with the appellant but has denied the other allegations contained in the plaint and stated that at the time of marriage Rs.1 lakh cash, one Maruti Wagon RLX, gold ornaments, furniture, clothes and domestic articles worth Rs.5 lakhs were given by her father. But she was subjected to physical and mental torture at their hands for insufficient dowry as her in-laws demanded further dowry of Rs.6 lakhs.

¶35

3

¶36

2025:JHHC:36361-DB

¶37

She has alleged that the appellant used to talk to his girlfriend and on her objection his mother forcibly retained her mobile and gold ornaments. She was also deprived of proper food and clothes.

¶38

It is alleged that the respondent wanted to settle the dispute and reside with the appellant but it is the appellant who wanted to solemnize his second marriage with another girl and, as such, the suit is liable to be dismissed.

¶39

Learned Family Judge, after institution of the said case, taking into consideration of the pleadings of the appellant and the respondent has formulated the issues and has decided the lis by refusing to grant divorce to the petitioner/appellant.

¶40

The aforesaid judgment by which divorce has not been granted is under challenge by filing the instant appeal.

¶41

It needs to refer herein that the Matrimonial Suit No.57 of 2015 was earlier decided in favour of the appellant-husband by granting a decree of divorce vide judgment dated 06.12.2017 and decree dated 16.12.2017 by the then learned Principal Judge, Family Court, Jamshedpur.

¶42

Against the said order of granting decree of divorce, the respondent-wife has preferred an appeal before this Court being First Appeal No. 347 of 2018 which was allowed by a Division Bench of this Court vide order dated 20.10.2022 while quashing and setting aside the judgment dated 06.12.2017 and decree dated 16.12.2017 of divorce passed by the learned Family Judge, Jamshedpur in Matrimonial Suit No.57 of 2015 and the said suit has been restored to its original file.

¶43

4

¶44

2025:JHHC:36361-DB

¶45

Thereafter, the learned Family Judge, Jamshedpur proceeded with the said Matrimonial Suit afresh and vide judgment dated 05.03.2024 and decree dated 22.03.2024, the suit was dismissed which is under challenge in the present appeal.

¶46

Submission of behalf of the appellant-husband:

¶47

Mr. Devesh Ajmani, the learned counsel appearing for the appellant-husband has taken the following grounds:

¶48

(i) There is an error in the impugned judgment, since, each and every aspect of the matter has not been taken into consideration based upon the documentary evidences as well as ocular evidences.

¶49

(ii) The element of cruelty and desertion has been found to be there if the evidences adduced on behalf of the appellant-husband will be taken into consideration but without appreciating the same properly, the learned Family Judge has come to the finding by holding that no element either of cruelty or desertion is there and, as such, the impugned judgment and decree suffer from an error.

¶50

(iii) It has been contended that so far as the issue of cruelty is concerned a case was registered against the appellant and his family members under section 498A of the Indian Penal Code by making false allegation for demand of dowry which itself amounts to cruelty.

¶51

5

¶52

2025:JHHC:36361-DB

¶53

(iv) It has come in the evidence that the respondent-wife used to threaten to commit suicide which also amounts to cruelty.

¶54

(v) So far as the issue of desertion is concerned, the brother of the respondent-wife, who has been examined as DW3, has stated in his evidence that the respondent left the matrimonial house after two years which is substantive piece of evidence to establish the factum of desertion.

¶55

(vi) It has been contended that the appellant has been meted out with cruelty at the hands of the respondentwife due to her abnormal and cruel behaviour as would be evident from the evidence adduced on behalf of the appellant-husband, but the same has not been taken into consideration.

¶56

(vii) It has been contended that though the learned Family Judge has proceeded the matter and dismissed the Matrimonial Suit, but he has failed to appreciate the evidences adduced on behalf of the appellant as in the trial, the evidence has come that it was the respondentwife who has committed cruelty upon him by her cruel behaviour and act and deserted him by leaving her matrimonial house.

¶57

The learned counsel, based upon the aforesaid ground, has submitted that the impugned judgment and decree, therefore, needs interference on the ground of perversity.

¶58

6

¶59

2025:JHHC:36361-DB

¶60

Submission of behalf of the respondent-wife:

¶61

Per contra, Mr. Shailendra Jit, the learned counsel appearing for the respondent-wife has taken the following grounds:

¶62

(i) There is no error in the impugned judgement as the learned Family Judge has considered the entire issue and on the basis of evidence laid by the parties has passed the order impugned as such same may not be interfered with.

¶63

(ii) The appellant has sought divorce on the ground that the behaviour of the respondent-wife is cruel and has deserted the appellant without any valid ground but the learned Family Court, after taking into consideration the oral and documentary evidence, has held that the entire allegations levelled are absolutely illegal, uncalled for and has rightly dismissed the suit.

¶64

(iii) It has been contended that even accepting that a criminal case under section 498A of Indian Penal Code has been lodged against the appellant but as has been submitted on behalf of the learned counsel appearing for the appellant that the said criminal case is still pending and, as such, merely because the case has been instituted under section 498 A of the Indian Penal Code that cannot prove the element of cruelty.

¶65

(iv) It has been contended that the issue of desertion has rightly not been proved, since, the factum of desertion requires to be considered on the basis of the factum

¶66

7

¶67

2025:JHHC:36361-DB

¶68

that if the wife has left the matrimonial house on her

¶69

own but no evidence has been laid to that effect.

¶70

(v) So far as the evidence of DW3 is concerned, that cannot be construed to prove the factum of desertion, since, whatever has been deposed by DW3, the brother of the respondent-wife, that his sister came back to the paternal house immediately after two years, i.e., is in the context of the torture meted out to her for which a criminal case under section 498A IPC has been instituted.

¶71

Learned counsel, based upon the aforesaid grounds, has submitted that if on that pretext, the factum of cruelty and desertion has not been found to be established, hence, the impugned judgment cannot be said to suffer from an error.

¶72

Analysis:

¶73

We have heard the learned counsel appearing for the parties, gone through the impugned judgment as well as the Trial Court Records, as also the testimonies of the witnesses and the materials available on record.

¶74

The learned Family Judge has formulated altogether five issues,

¶75

for ready reference the same are being quoted hereinbelow:

¶76

I. Whether the suit is maintainable in its present form?

¶77

II. Whether there is any valid cause of action for the suit?

¶78

III. Whether the respondent has, after the solemnization of marriage, treated the petitioner with cruelty?

¶79

IV. Whether the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of this petition?

¶80

8

¶81

2025:JHHC:36361-DB

¶82

V. Whether the petitioner is entitled for any other relief or reliefs as claimed?

¶83

The learned Family Judge has considered the evidence adduced on behalf of the parties for deciding the issues involved in Matrimonial Suit No.57 of 2015 as they are interconnected.

¶84

This Court in order to appreciate the aforesaid rival submission before entering into the legality and propriety of the impugned judgment needs to discuss herein the relevant part of the evidences adduced on behalf of the parties.

¶85

During the trial, four witnesses have been examined on behalf of the appellant-husband who himself has been examined as PW2.

¶86

In support of her contention, the respondent-wife has also examined three witnesses including herself as DW1.

¶87

In his examination on oath as PW2, the appellant-husband has narrated entire things as pleaded in the plaint about his marriage with the respondent. He has stated on oath that his marriage was solemnized with the respondent on 07.02.2006 in accordance with Hindu rites and customs. He stated that his marriage was solemnized without dowry but the father of the respondent gifted him a Maruti Van, the cost of the same was borne

¶88

by his father. He has further stated that the respondent, since very inception, misbehaved with him and his family members and used to threaten to implicate them in false criminal cases by committing suicide. She also pressurized him for Rs.4 lakhs and transfer of land at Hazaribagh in favour of her father and brother. When he refused to fulfill the desire of the respondent, she left her matrimonial home on 18.06.2008 and never

¶89

9

¶90

2025:JHHC:36361-DB

¶91

returned back. Thereafter, he filed a suit for restitution of conjugal right but the same was dismissed as withdrawn due to refusal and adamant attitude of the respondent.

¶92

In cross-examination, PW2 has admitted that he has not paid any maintenance amount to the respondent since the time she left her matrimonial home. He admitted that he is an employee of Tata Steel Ltd. having a gross salary of Rs.47,000-48,000/-. He admitted that he went to bring back the respondent in the month of November, 2011 and thereafter he filed a suit for restitution of conjugal rights but in the year 2014 he withdrew the same.

¶93

PW1-Chandra Kishore Lal is the father of the appellant. He has stated in the same line and manner in which the appellant has stated in his evidence. He has admitted that the marriage was solemnized without any dowry and he incurred the expensed for purchasing the Maruti Car which was gifted by the father of the respondent. He has deposed that the respondent pressurized the appellant to give Rs.4 lakhs and transfer of the land at Hazaribagh in the name of her father and brother. He has stated that the respondent left the matrimonial home on 18.06.2008 and never returned thereafter.

¶94

In his cross-examination, he stated that the respondent has filed criminal cases under section 498A and under section 125 Cr.PC for maintenance. He has admitted that despite willingness of the respondent to reside with the appellant, they would not take her back.

¶95

PW3 Tara Devi is the mother of the petitioner/appellant. She has stated that the respondent at the instance of her parents mentally and physically tortured them with threats to implicate them falsely in criminal

¶96

10

¶97

2025:JHHC:36361-DB

¶98

case or by committing suicide. The respondent pressurized the appellant to transfer the land at Hazaribagh in favour of her father and brother and pay Rs.4 lakhs to her family and inspite of their best efforts, she refused to reside with them.

¶99

In her cross-examination, PW3 has stated that she never demanded any dowry from the respondent. She has stated that she had gone to the respondent’s parental house on 27.11.2011with the appellant to bring her back where the parents of the respondent misbehaved with them. She has stated that the car in question was purchased by them by sale of ancestral land.

¶100

PW4 Himanshu Kumar is a neighbour of the petitioner and has stated that the respondent used to go to her parents’ house frequently. He has deposed that on 18.06.2008 due to partial flood the respondent went with her father and never returned even though she enjoyed good relationship with her in-laws.

¶101

However, none turned up, hence, he was not cross-examined.

¶102

DW1 is the respondent herself and she has deposed that her marriage was solemnized with the appellant on 07.02.2006 at Hazaribagh and at the time of marriage Rs. One lakh cash, one Maruti Wagon R worth Rs.3,50,000/- and jewellery and other ornaments worth Rs.5 lakh were given at the time of marriage by her parents. She has deposed that she was subjected to cruelty and torture by her in-laws due to non-fulfillment of demand of dowry of Rs.6 lakhs. She has stated that for dowry demand, she had instituted a case which is pending in the Court at Hazaribagh and she is willing to reside with her husband.

¶103

11

¶104

2025:JHHC:36361-DB

¶105

In her cross-examination, DW1 has admitted that she has instituted three cases against the appellant, the first one is for maintenance, the second one is for domestic violence and the third one is for dowry prohibition case out of which the maintenance case has been decided and the rest two cases are still pending. She has deposed that the appellant has withdrawn the case for restitution of conjugal rights under section 9 of the Hindu Marriage Act. She has admitted that she is a graduate. She has denied that on the instigation of her father to grab the property of her husband, she has instituted the cases.

¶106

DW2 Mansoor Alam is the family friend of the respondent’s family. He has corroborated the statements of the respondent given in her evidence. He has corroborated the factum of marriage and has stated that at the time of marriage Rs. One lakh cash, one Maruri Wagon Car worth Rs.3,50,000/- and jewellery and articles worth Rs.5 lakhs were given by the parents of the respondent to the appellant and his family members. He has stated that after marriage due to non-fulfillment of demand of Rs.6 lakhs, the appellant along with his family members started torturing her.

¶107

In cross-examination, DW2 has admitted that the respondent had filed a case under 498A IPC against the appellant and his family members in which he had appeared as a witness. He has admitted about the demand of Rs.6 lakhs and one motorcycle. He has admitted that the case instituted by the appellant for restitution of conjugal rights was withdrawn by him but he has no knowledge as to why the said case was withdrawn.

¶108

DW3-Samir Kumar is the brother of the respondent who has also corroborated the factum of the marriage and torture and cruelty meted out upon the respondent by her in-laws due to non-fulfillment of demand of

¶109

12

¶110

2025:JHHC:36361-DB

¶111

dowry of Rs.6 lakhs. He has stated that despite willingness of his sister (the respondent) to resume marital ties, the appellant withdrew the said suit for restitution of conjugal rights.

¶112

In cross-examination, DW3 has admitted that her sister resided

¶113

at her matrimonial home for about two years and thereafter came back to his house with his father on 28.06.2008 and thereafter she never returned to her in-laws’ house. He has admitted that his father tried his best to return back the respondent to her matrimonial house but he himself has not tried for the same.

¶114

The fact about filing of suit by taking plea of cruelty and desertion is admitted one as per the evidences adduced on behalf of the appellant-husband.

¶115

The appellant-husband all along has alleged the issue of cruelty and desertion which he was subjected to by his wife and in order to establish the same the evidences has been laid as has been referred hereinabove.

¶116

This Court while appreciating the argument advanced on behalf of the appellant-husband on the issue of perversity needs to refer herein the interpretation of the word “perverse” as has been interpreted by the Hon'ble Apex Court which means that there is no evidence or erroneous consideration of the evidence.

¶117

The Hon'ble Apex Court in Arulvelu and Anr. vs. State [Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206 while elaborately discussing the word perverse has held that it is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding

¶118

13

¶119

2025:JHHC:36361-DB

¶120

so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27 of the said judgment reads as under:

¶121

“24. The expression “perverse” has been dealt with in a number of cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501] this Court observed that the expression “perverse” means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.

¶122

25. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [AIR 1966 Cal 31] the Court observed that “perverse finding” means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341] the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings. 26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed that a “perverse verdict” may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.

¶123

In Godfrey v. Godfrey [106 NW 814] the Court defined “perverse” as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc.

¶124

27. The expression “perverse” has been defined by various dictionaries in the following manner:

¶125

1. Oxford Advanced Learner's Dictionary of Current English, 6th Edn.

¶126

“Perverse.—Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.”

¶127

14

¶128

2025:JHHC:36361-DB

¶129

2. Longman Dictionary of Contemporary English, International Edn.

¶130

Perverse.—Deliberately departing from what is normal and reasonable.

¶131

3. The New Oxford Dictionary of English, 1998 Edn.

¶132

Perverse.—Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.

¶133

4. The New Lexicon Webster's Dictionary of the English Language (Deluxe Encyclopedic Edn.)

¶134

Perverse.—Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.

¶135

5. Stroud's Judicial Dictionary of Words & Phrases, 4th Edn.

¶136

“Perverse.—A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.”

¶137

In the instant case, the ground for divorce has been taken on the ground of cruelty and desertion.

¶138

The “cruelty” has been interpreted by the Hon’ble Apex Court in the case of Dr. N.G. Dastane vs. Mrs. S. Dastana, (1975) 2 SCC 326 wherein it has been laid down that the Court has to enquire, as to whether, the conduct charge as cruelty, is of such a character, as to cause in the mind of the petitioner, a reasonable apprehension that, it will be harmful or injurious for him to live with the respondent.

¶139

This Court deems it fit and proper to take into consideration the meaning of ‘cruelty’ as has been held by the Hon’ble Apex Court in Shobha Rani v. Madhukar Reddi, (1988)1 SCC 105 wherein the wife alleged that the appellant-husband and his parents demanded dowry. The Hon’ble Apex Court emphasized that “cruelty” can have no fixed definition.

¶140

15

¶141

2025:JHHC:36361-DB

¶142

According to the Hon’ble Apex Court, “cruelty” is the “conduct in relation to or in respect of matrimonial conduct in respect of matrimonial obligations”. It is the conduct which adversely affects the spouse. Such cruelty can be either “mental” or “physical”, intentional or unintentional. For example, unintentionally waking your spouse up in the middle of the night may be mental cruelty; intention is not an essential element of cruelty but it may be present. Physical cruelty is less ambiguous and more “a question of fact and degree.”

¶143

The Hon’ble Apex Court has further observed therein that while dealing with such complaints of cruelty it is important for the Court to not search for a standard in life, since cruelty in one case may not be cruelty in another case. What must be considered include the kind of life the parties are used to, “their economic and social conditions”, and the “culture and human values to which they attach importance.”

¶144

The nature of allegations need not only be illegal conduct such as asking for dowry. Making allegations against the spouse in the written statement filed before the court in judicial proceedings may also be held to constitute cruelty.

¶145

In V. Bhagat vs. D. Bhagat (Mrs.), (1994)1 SCC 337 , the wife alleged in her written statement that her husband was suffering from “mental problems and paranoid disorder”. The wife’s lawyer also levelled allegations of “lunacy” and “insanity” against the husband and his family while he was conducting a cross-examination. The Hon’ble Apex Court held these allegations against the husband to constitute “cruelty”.

¶146

In Vijaykumar Ramchandra Bhate v. Neela Vijay Kumar Bhate, (2003)6 SCC 334 the Hon’ble Apex Court has observed by taking

¶147

16

¶148

2025:JHHC:36361-DB

¶149

into consideration the allegations levelled by the husband in his written statement that his wife was “unchaste” and had indecent familiarity with a person outside wedlock and that his wife was having an extramarital affair. These allegations, given the context of an educated Indian woman, were held to constitute “cruelty” itself.

¶150

It requires to refer herein that the Hon’ble Apex Court in Joydeep Majumdar v. Bharti Jaiswal Majumdar, (2021) 3 SCC 742 , has observed that while judging whether the conduct is cruel or not, what has to be seen is whether that conduct, which is sustained over a period of time, renders the life of the spouse so miserable as to make it unreasonable to make one live with the other. The conduct may take the form of abusive or humiliating treatment, causing mental pain and anguish, torturing the spouse, etc. The conduct complained of must be “grave” and “weighty” and trivial irritations and normal wear and tear of marriage would not constitute mental cruelty as a ground for divorce.

¶151

Now adverting to the factual aspect, it is evident from the impugned judgment that the allegations specific to the ground of alleged cruelty and desertion has been made by the petitioner/appellant-husband.

¶152

At this juncture it would be apt to refer the definition of desertion as defined under explanation part of Section 13 which 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 willful neglect of the petitioner by the other party to the marriage.

¶153

Rayden on Divorce which is a standard work on the subject at p. 128 (6^th Edn.) has summarised the case-law on the subject in these terms:

¶154

17

¶155

2025:JHHC:36361-DB

¶156

“Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party.”

¶157

The legal position has been admirably summarised in paras-453

¶158

and 454 at pp. 241 to 243 of Halsbury's Laws of England (3^rd Edn.), Vol. 12, in the following words:

¶159

“In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.

¶160

Desertion is not the withdrawal from a place but from a state of

¶161

things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, ‘the home’. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.

¶162

The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least two years immediately preceding the presentation of the petition or, where the offence appears as a cross-charge, of the answer.

¶163

18

¶164

2025:JHHC:36361-DB

¶165

Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. desertion is a continuing offence.

¶166

It is, thus, evident from the aforesaid reference of meaning of desertion that the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end.

¶167

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. In such a situation, the party who is filing for divorce will have the burden of proving those elements.

¶168

Recently also, the Hon'ble Apex Court in Debananda Tamuli vs. Kakumoni Kataky, (2022) 5 SCC 459 has considered the definition of ‘desertion’ on the basis of the judgment rendered by the Hon'ble Apex Court in Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40 which has been consistently followed in several decisions of this Court. 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

¶169

19

¶170

2025:JHHC:36361-DB

¶171

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 the Hon'ble Apex Court has been incorporated in the Explanation added to sub-section (1) of Section 13 by Act 68 of 1976. The said Explanation reads thus:

¶172

“ 13. Divorce .—(1) …

¶173

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.”

¶174

This Court, on the premise of the interpretation of the word “cruelty” and “desertion” has considered the evidences of the witnesses as has been incorporated by the learned Court in the impugned judgment dated 05.03.2024.

¶175

It is evident from the interpretation of the word cruelty that the

¶176

same is to be considered on different parameters depending upon the material if available on record.

¶177

Adverting to the evidence of the witnesses laid in order to establish the factum of cruelty, it is evident from the evidence of PW1 to PW4 that whatever has been deposed by them that is the mere wear and tear and not pertaining to element of cruelty coming under the fold of

¶178

20

¶179

2025:JHHC:36361-DB

¶180

definition of the word “cruelty” as has been interpreted by the Hon’ble Apex Court.

¶181

The appellant-husband although has taken the ground of cruelty meted to him by his wife but, in course of trial he has failed to establish the element of cruelty meted out to him at the hands of the respondentwife.

¶182

This Court, therefore, is of the view that in deciding the issue no.III of cruelty, if the learned Family Judge has come to the conclusion that the factum of cruelty has not been proved, which according to our considered view cannot be said to suffer from an error.

¶183

The desertion while, on the other hand, has been defined that if either of the parties on its own has left the house without any compulsion or coercion, then only such type of separation will come under the fold of desertion.

¶184

It is evident from the interpretation of desertion that the desertion parting away from the matrimonial house will not amount to desertion rather reason of parting away amounts to desertion, ie., if the wife on her own has left the matrimonial house then certainly it will come under the fold of desertion, but if the wife has been forced to leave her matrimonial house, in such circumstances parting away from the matrimonial house will not come under the fold of desertion.

¶185

Herein, as per the facts of the case the appellant has preferred a suit being Matrimonial Suit No.408 of 2011 before the Court of Principal Judge, Family Court at Jamshedpur for restitution of conjugal rights under section 9 of the Hindu Marriage Act which he withdrew the same subsequently after keeping the same pending for about two years.

¶186

21

¶187

2025:JHHC:36361-DB

¶188

There is no reason as to why the case filed under section 9 of the Hindu Marriage Act has been withdrawn by the appellant.

¶189

This Court, taking into consideration the fact that the appellant has failed in proving that the wife herself has left the matrimonial house on her own and, as such, on the basis of the aforesaid evidence, the learned Family Judge has come to the conclusion that the factum of the desertion has not been proved, which in our considered view cannot be said to suffer from any error.

¶190

This Court after discussing the aforesaid factual aspect along with the legal position and adverting to the consideration made by the learned Family Judge in the impugned judgment has found therefrom that the issue of element of cruelty and desertion has well been considered by the learned Family Judge.

¶191

On consideration of the evidence, the learned Family Judge has come to conclusion that the appellant-husband has miserably failed to establish the ground of cruelty and desertion against the respondent-wife.

¶192

The aforesaid reason has led the learned Family Judge to dismiss the suit.

¶193

This Court, on consideration of the finding arrived at by the learned Family Judge and based upon the aforesaid discussion, is of the view that the impugned judgment and decree passed by the learned Family Judge is not coming under the fold of the perversity, since, the conscious consideration has been made of the evidences, as would be evident from the impugned judgment.

¶194