Om Prakash Choudhary Vs Renu Kumari

2025:JHHC:36736-DB

IN THE HIGH COURT OF JHARKHAND AT RANCHI

First Appeal No.71of 2023

Om Prakash Choudhary aged about 42 year son of Ramayan Choudhary resident of sector 8/C, Quarter no. 1116, P.O. Sector 9 and P.S. Harla, District Bokaro, Jharkhand. … Appellant/Petitioner

¶5

Versus

¶6

Renu Kumari Wife Om Prakash Choudhary daughter of Late Shankar Prasad resident of sector 9/D, Quarter no. 481, P.O. Sector 9 and P.S. Harla, Bokaro, Jharkhand.

¶7

… … Respondent/Respondent

¶8

¶9

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

¶10

------For the Appellant : Mr. Ashutosh Joshi,Advocate For the Respondent : Mr. Subhneet Jha, Advocate

¶11

Order No. 17/Dated: 5^th December, 2025 Per Sujit Narayan Prasad, J.

¶12

Prayer:

¶13

1. The instant appeal under Section 19(1) of the Family Court Act, 1984 is directed against the order/judgment dated 10^th November, 2022 and decree signed on 18^th November, 2022 passed by the learned Principal Judge, Family Court, Bokaro in Original Suit No. 209 of 2019, whereby and whereunder, the suit filed by the petitioner-appellant [husband] for dissolution of marriage by decree of divorce u/s 13(1)(i-a)(i-b) of Hindu Marriage Act, 1955 against respondent/wife, has been dismissed.

¶14

Factual Aspect :

¶15

2. The brief facts of the case leading to filing of the divorce petition by the appellant-petitioner, as taken note in the

¶16

1

¶17

2025:JHHC:36736-DB

¶18

impugned order as emanated from the plaints, needs to be referred herein, which as under:

¶19

3. The marriage of the appellant was solemnized with the respondent on 07.07.2011 as per Hindu rites and custom at Bokaro. After marriage, they lived together as husband and wife. They have been blessed with two sons namely, Anurag Kumar, aged about 05 years and Ashutosh Kumar, aged about 03 years, the age at the time of filing of the suit.

¶20

4. It is the case of the appellant-husband that after two years of their marriage, the respondent-wife without any reasonable cause started quarreling with him and his family members and went to her parents‟ home without any information. It is further alleged though the respondent-wife is a Teacher working in Kasturva Gandhi Girls School, Raneshwar, Dumka since 2010 and getting salary of Rs.30,000/-per month, but she is not spending a single penny in his house and gives her salary to her parents. It has been stated that he tried to keep her properly and happily, in spite of that, she used to quarrel with them. He incurred all the expenses during birth of their babies. In spite of that, she on being instigated by her family members, subjected him with cruelty and torture. The further case of the appellant-husband is that he used to go Dumka, the workplace of the respondent, but she does not permit him [husband] to stay there. On 10.02.2017, after birth of second

¶21

2

¶22

2025:JHHC:36736-DB

¶23

baby, she left her matrimonial home without any information taking away her all jewelleries, clothes and Stridhan. Thereafter, he tried his level best to bring her back but in vain. Several times, he went to his sasural to meet with their son, but he was not allowed to meet his son. Both the children are living with the respondent. Elder son is living with his maternal grand-mother at Bokaro and the younger son is living with the respondent at Dumka. It has been stated that family counseling was held, where the respondent appeared on 09.04.2019, but she is not ready to live with him.

¶24

5. Therefore, it has been contended that there is no chance of living together as husband and wife with the respondent, so left with no option the appellant-husband filed the suit for divorce making a prayer for decree for dissolution of marriage in favour of the petitioner.

¶25

6. The respondent-wife appeared before the learned family court and denied the allegations leveled by the Petitioner, the appellant herein. It has been contended that the petitioner and his family members used to demand her whole salary from the respondent. When she denied, he threatened to get her divorced and to solemnize another marriage and left her for one year with their 08 months infant. During this period, her mother-in-law died, then she came to her matrimonial home, but she was ousted from

¶26

3

¶27

2025:JHHC:36736-DB

¶28

there. She with a view to preserve her conjugal life, had given Rs.50,000/- in cash in the year 2015 and Rs.50,000/through cheque in the year 2017 to the petitioner. She tried her level best to preserve her conjugal life, but due to her limited source of income, she could not fulfill the demand of the petitioner and his parents every time. Due to demand of money, he always threatened her. In the year 2014, when she was pregnant, she incurred her all expenses and the petitioner with a view to take Rs.1,50,000/- (amount of her maternity leave), used to threaten her to solemnize another marriage. She lived with the petitioner-appellant till 08.02.2019 and discharged her all marital obligations. When his demand of taking amount of her maternity leave could not be fulfilled, he stopped coming Dumka. Since 2014, she is not going to her matrimonial home. Her father-in-law always abuses her. She has further stated that her articles are in her matrimonial home. Till 08.02.2019, she used to go to the workplace of the petitioner during leave or taking leave and lived there as man and wife. Their children are minor. She works in Dumka and the petitioner-appelllant works in Muzaffarpur, Bihar. Her in-laws do not want to keep any relationship with her. Their children are living with her in Dumka. During family counseling in YMCA, she agreed not to leave her service and agreed to live with the petitioner in Muzaffarpur and also in Dumka. The petitioner

¶29

4

¶30

2025:JHHC:36736-DB

¶31

always demanded money from her. The petitioner and his family members has eye on her earning only. In spite of giving money and living with him, he always threatens to divorce her. When she denied to give her earning, the petitioner, his father and others came to her parents‟ home and assaulted them. They also assaulted to snatch her sons, for which she had filed Harla P.S.Case No. 96 of 2019. On the basis of aforesaid ground, it has been contended that the suit filed by the appellant is liable to be dismissed. 7. On the basis of the pleadings of both the parties, the learned family court framed the issue as to whether the respondent (Wife) committed cruelty against the Petitioner (Husband) after marriage? and; whether the respondent (wife) deserted her husband (petitioner) since last two years prior to filing of the suit and whether husband is entitled to get a Decree of dissolution of marriage on the basis of Section-13(1) (ia) (ib) of Hindu Marriage Act, 1955.

¶32

8. The learned Principal Judge, family court, after appreciating the evidence adduced on behalf of parties, came to the conclusion that admittedly, both the parties were living together as man and wife till February 2019 and this case was filed on 26.04.2019. The mandatory requirement to file any case u/S. 13 1 (ib) of Hindu Marriage Act, 1955 is of separation of two years. So, the case is not maintainable u/S. 13 (1) (ib) of Hindu Marriage Act, 1955. As far as

¶33

5

¶34

2025:JHHC:36736-DB

¶35

Section 13 1 (ia) of Hindu Marriage Act, 1955 is concerned, there is absolutely no evidence of any kind of mental and physical cruelty meted out to the petitioner-husband by the respondent-wife. Accordingly, the issues were decided against the Petitioner and the suit was dismissed.

¶36

Submission of the learned counsel for the appellant:

¶37

9. It has been contended on behalf of the appellant that the factual aspect which was available before the learned family court supported by the evidences adduced on behalf of the appellant has not properly been considered and as such, the judgment impugned is perverse, hence, not sustainable in the eyes of law.

¶38

10. It has been submitted that the issue of cruelty has not been taken into consideration in the right perspective even though the fact about living separately has well been established.

¶39

11. Submission has been made that the judgment passed by learned court below is perverse in the eye of law as the wife has committed mental cruelty and physical cruelty towards the appellant by filing false case against the appellant.

¶40

12. Learned counsel for the appellant has submitted that the respondent-wife does not allow the appellant-husband to stay with her in her work place, which itself amounts to cruelty in the relationship of husband and wife, but these aspects of the matter has not properly been considered by the learned family judge.

¶41

6

¶42

2025:JHHC:36736-DB

¶43

13. Learned counsel for the appellant, based upon the aforesaid grounds, has submitted that the judgment impugned suffers from perversity, as such, is not sustainable in the eyes of law

¶44

Submission of the learned counsel for the respondent:

¶45

14. Per contra , learned counsel appearing for the respondentwife, while defending the impugned judgment, has submitted that there is no error in the impugned judgment. The learned Principal Judge has considered the issue of cruelty and came to the conclusion that no evidence has been adduced to establish cruelty. Further, the appellant and the respondent were living together as man and wife till February 2019 and this case was filed on 26.04.2019, as such the mandatory requirement to file any case u/S. 13 (1) (ib) of Hindu Marriage Act, 1955 of separation of two years does not meet. Therefore, it has been held that this case is not maintainable u/S. 13 (1) (ib) of Hindu Marriage Act, 1955.

¶46

15. Learned counsel, based upon the aforesaid ground, has submitted that if on that pretext, the factum of cruelty and/or desertion has not been found to be established, based upon which the decree of divorce has been refused to be granted, the impugned judgment cannot be said to suffer from error.

7

2025:JHHC:36736-DB

Analysis:

16. This Court has heard the learned counsel for the parties and gone through the finding recorded by the learned Family Judge in the impugned judgment.

¶51

17. The admitted fact herein is that the suit for divorce has been filed on the ground of cruelty and desertion i.e., by filing an application under Section 13 (1) (i-a) (i-b) of the Hindu Marriage Act, 1955 and accordingly, issues have been framed and decided against the petitioner-appellant.

¶52

18. The evidence has been led on behalf of both the parties. On behalf of petitioner-husband, four witnesses have been examined, namely, Ram Pravesh Choudhary [PW 1], the brother of the appellant; and Ramayan Choudary [PW 2], the father of the appellant; Manju Devi [PW 3] and Om Prakash Choudhary [PW 4], the petitioner-appellant himself.

¶53

19. Whereas on behalf of respondent-wife two witnesses have been examined, namely, Renu Kumari, the respondent examined herself as R.W- 1, Rina Kumari, sister of the respondent.

¶54

20. This Court in order to appreciate the testimony available on record has gone through the testimonies of the witnesses.

¶55

21. P.W. 1-Ram Pravesh Choudhary, has stated that the petitioner and the respondent were married on 07.07.2011. Out of their wedlock, they have two sons viz. Anurag Kumar and Ashutosh Kumar. The respondent is a Teacher in

¶56

8

¶57

2025:JHHC:36736-DB

¶58

Katurva Gandhi Girls School, Dumka. She used to spend her salary on her parents. On 10.02.2017, the respondent without informing the petitioner returned to her parents‟ home taking away jewelleries and Stridhan. Further, he states that since before marriage, the respondent is working as a Teacher in Katurva Gandhi Girls School, Dumka. She has filed criminal case against them. The petitioner is also working and getting salary of Rs.80,000/-. He is living in Muzaffarpur for the last 03 years and he is working in Croption Company. Earlier, he was working in Bhubaneshwar. Respondent is living in the school since it is a residential school. Earlier they were living in Bhubaneshwar and Dumka on rent. He has denied the allegation of the respondent.

¶59

22. PW-2 Ramayan Choudhary is the father of the appellant, who has stated the same facts as stated by PW-1 in his examination-in-chief filed on oath and further states that since before marriage, the respondent was in service. Both the children of the parties are living with their maternal grand-mother (Nani). The respondent is Teacher in Katurva Gandhi Girls School, Dumka. The appellant is working in Sorlite Company, Patna in marketing field. He has not filed any case for restitution of conjugal rights. On 08.02.2019, both the parties came to attend marriage ceremony of the

¶60

9

¶61

2025:JHHC:36736-DB

¶62

sister of the respondent at Bokaro. In the LIC policy of the respondent, the petitioner is nominee.

¶63

23. PW-3 Manju Devi has stated the same facts as stated by PWs' 1 & 2 in their examinations-in-chief filed on oath and further states about marriage and children of the parties and also about service of the respondent. On 08.02.2019, both the parties had stayed in Qrs. No. 481, Street 35, Sector 9/D, Bokaro.

¶64

24. PW-4 Om Prakash Choudhary is the petitioner himself, who has stated the same facts as stated by PWs' 1,2, & 3 in their examination-in-chief filed on oath and further states that on 10.02.2019, the respondent returned to her parents‟ home with clothes and jewelleries. He has paid Rs.40,000/-for admission of their son Anurag in Aayappa School, Bokaro. Ashutosh (second son), their second son is living in Dumka with the respondent. On 02.03.2019, notice was issued for family counseling, where the respondent appeared on 09.04.2019 but she is not ready to live with him. At present he is Sales Manager in Magadh Steel. He has admitted that on 08.02.2019 he has attended a family function in Sector9, Bokaro. He also admits that he has not filed any case for restitution of conjugal rights. He categorically stated that from the year 2014-19, the respondent was living with him during vacation in Dumka, Patna, Ranchi and Bhuwaneshwar. As stated earlier, PW-3 has stated that both

¶65

10

¶66

2025:JHHC:36736-DB

¶67

the parties stayed together on 08.02.2019 during a family function at Bokaro. PW-1 has stated that for last one year both the parties are living separately. The petitioner (PW-4) himself has stated that on 10.02.2019 after birth of their second child, the respondent left her matrimonial home and returned to her parents‟ home.

¶68

25. In his cross-examination at para-17, he has admitted that in between 2014-19, they were living together during vacation in Dumka, Patna, Ranchi and Bhuwaneshwar. He also admits that on 08.02.2019, he has attended a family function at Bokaro.

¶69

26. On behalf of respondent, the respondent-wife herself has been examined as RW-1 Renu Kumari (respondent), who has stated about her marriage with the petitioner and further states that out of their wedlock, they have two sons. Since before her marriage, she was a Teacher in Katurva Gandhi Girls School, Dumka and it was agreed before their marriage that she will continue her service. After their marriage, they were living together for 03 years. She has incurred the expenses of birth of their first son Anurag. She got maternity leave and saving of Rs.1,50,000/-, but her husband was demanding the money and threatened to divorce her. Then he left her and their infant baby, aged about 08 months and for one year he has not made any contact with them. In between, her mother-in-law died.

¶70

11

¶71

2025:JHHC:36736-DB

¶72

There also the petitioner and his family members demanded money, then she has given Rs.50,000/- to the in the year 2015 and also Rs.50,000/- in the year 2017 by way of cheque. She has deposited photo copy of her Bank passbook in support of her claim. In her LIC Policy, the petitioner is her nominee and she used to pay the premium. But to meet out the expenses of her son, she stopped paying premium. Not even this, in the Post Office she has a Policy and her husband was a nominee. She used to pay Rs.12,000/- per month but to meet out the expenses of their son, she stopped paying premium. She has paid Rs.20,000/- in November 2017 for payment of EMI of Car of the petitioner. Till 2019 she was living with the petitioner in Patna, Ranchi Muzaffarpur and Bhuwaneshwar with their children as a family. On 08.02.2019, they have attended marriage of her sister in Sector-9, Bokaro. She has filed Harla P.S.Case No. 96 of 2019 in lieu of demand of cash and threatening of divorce and also threatening for snatching of her children. The petitioner, his father, their nephew and one Singhji came to her parents‟ home and tried to snatch their children.

¶73

27. She has categorically deposed that she is ready to live with her husband/petitioner. She is working in Kasturva Gandhi Girls residential School, Dumka since 11.10.2010. She is M.Sc. B.Ed. and working as teacher of Math in that school.

¶74

12

¶75

2025:JHHC:36736-DB

¶76

It was agreed that she will continue her service. She has filed documents related to birth of her children. She admits that she has not filed any case against her husband and inlaws, when she was ousted from her matrimonial home. She denied that she has not allowed her husband/petitioner to meet with their children.

¶77

28. RW-2 Rina Kumari (sister) has supported the case of the respondent in her examination-in-chief filed on oath and further states that she has no knowledge about talk between the parties. But admits that the respondent used to come to her parents‟ home. She does not know about the LIC Policy and any other policy of Post Office of the respondent. Her sister (respondent) is ready to live with her husband/Petitioner. She denied the case of the petitioner.

¶78

29. Besides oral evidence, the documentary evidence was also adduced before the learned family Court in support of the deposition made by the respondent-wife.

¶79

30. On the basis of the pleading of the parties the learned Principal Family Judge had framed issues for proper determination of the lis, and after due appreciation of the ocular as well as documentary evidence had negated the claim of the husband/appellant and observed that the petitioner/husband has totally failed to prove and establish the allegation of cruelty and desertion on the part of wife for dissolution of marriage.

¶80

13

¶81

2025:JHHC:36736-DB

¶82

31. Herein, the learned counsel for the appellant has argued that the evidence of desertion and cruelty has not properly been considered and as such, the judgment suffers from perversity, hence, not sustainable in the eyes of law.

¶83

32. While on the other hand, argument has been advanced on behalf of the respondent that the judgment is well considered and the learned family court has rightly come to the conclusion by denying the decree of suit of divorce in favour of petitioner-husband accordingly, dismissed the suit which requires no interference by this Court.

¶84

33. From the pleadings available on record and the arguments advanced on behalf of parties, the issue which requires consideration is as to

¶85

“ Whether the judgment and decree passed by the learned family court denying the decree of divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act and/or on the ground of desertion under Section 13(1)(ib) requires interference?”

¶86

34. This Court, while appreciating the argument advanced on behalf of the parties 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. The Hon'ble Apex Court in Arulvelu and Anr. vs.

¶87

14

¶88

2025:JHHC:36736-DB

¶89

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 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

¶90

under

¶91

“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.

¶92

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.

¶93

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. 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.

¶94

15

¶95

2025:JHHC:36736-DB

¶96

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

¶97

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

¶98

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

¶99

2. Longman Dictionary of Contemporary English, International Edn.

¶100

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

¶101

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

¶102

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

¶103

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

¶104

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

¶105

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

¶106

35. Herein, cruelty has been taken by the appellant as the main ground for dissolution of marriage.

¶107

36. So far the allegation of cruelty is concerned, it requires to refer herein the definition of „ cruelty’ as has been defined by Hon‟ble Apex in the judgment rendered in Dr. N.G. DastaneVs. Mrs. S. Dastane [(1975) 2 SCC 326], wherein it has been held that the Court is to enquire as to whether the 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.

¶108

16

¶109

2025:JHHC:36736-DB

¶110

37. The cruelty has also been defined in the case of Shobha Rani Vs. Madhukar Reddi [(1988) 1 SCC 105], wherein the wife alleged that the husband and his parents demanded dowry. The Hon‟ble Apex Court emphasized that “cruelty” can have no fixed definition.

¶111

38. According to the Hon’ble Apex Court, “cruelty” is the “conduct in relation to or in respect of matrimonial conduct in respect of matrimonial duties and 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.”

¶112

39. The Hon’ble Apex Court has further observed therein that while dealing with such complaints of cruelty that 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.”

¶113

40. The nature of allegations need not only be illegal conduct such as asking for dowry. Making allegations against the

¶114

17

¶115

2025:JHHC:36736-DB

¶116

spouse in the written statement filed before the court in judicial proceedings may also be held to constitute cruelty.

¶117

41. In V. Bhagat vs. D. Bhagat (Mrs.), (1994)1 SCC 337 , the

¶118

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 cross-examination. The Hon‟ble Apex Court held these allegations against the husband to constitute “cruelty”.

¶119

42. In Vijay kumar Ramchandra Bhate v. Neela Vijay Kumar

¶120

Bhate, (2003) 6 SCC 334 the Hon’ble Apex Court has observed by taking 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.

¶121

43. The Hon‟ble Apex Court in Joydeep Majumdar v. Bharti Jaiswal Majumdar, (2021) 3 SCC 742 , has been pleased to observe 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

¶122

18

¶123

2025:JHHC:36736-DB

¶124

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.

¶125

44. This Court, based upon the aforesaid discussions on the issue of cruelty, has gone through the testimony of witnesses and found that regarding cruelty meted out to the petitionerhusband by the respondent-wife, there is absolutely no evidence on record, except the allegations that the respondent used to spend her salary on her parents. Further, ground has been taken that when the petitionerhusband used to go to Dumka at the working place of respondent-wife, she refused to stay with her.

¶126

45. While on the other hand, the respondent-wife has stated that before her marriage, she was a Teacher in Kadturva Gandhi Girls School, Dumka and it was agreed before their marriage that she will continue her service. She further deposed that when her mother-in-law died, the petitioner and his family members demanded money, then she has given Rs.50,000/- to the petitioner in the year 2015 and also Rs.50,000/- in the year 2017 by way of cheque. She has deposited photo copy of her Bank passbook in support of her claim. In her LIC Policy, the petitioner is her nominee and

¶127

19

¶128

2025:JHHC:36736-DB

¶129

she used to pay the premium. She has categorically deposed that she is ready and willing to stay with her husband.

¶130

46. From the discussions made hereinabove, it is evident that no cruelty has been meted out to the appellant-husband by the respondent-wife rather it is the appellant-husband who tortured the respondent-wife for one reason or the other. There is absolutely no evidence on record, except the allegations that the respondent used to spend her salary on her parents. But, admittedly, the appellant-husband even is not paying expenses towards his sons rather it is the respondent-wife who is incurring all expenses of both the sons, who are residing with the respondent-wife. It further appears that the respondent-wife is working in residential school far away from the place of working appellanthusband with his consent and nowhere it has come in evidence that he ever insisted to reside together. Furthermore, it appears that at no point of time the appellant tried to save the marriage and admittedly no suit for restitution of conjugal right has been filed by him.

¶131

47. On the basis of the discussion made hereinabove, this Court is of the considered view that the appellant/husband has failed to brought any cogent evidence on record in order to establish the cruelty has been meted out to him by the respondent/wife as such the behaviour of the respondent

¶132

20

¶133

2025:JHHC:36736-DB

¶134

wife as alleged, does not amount to cruelty justifying dissolution of the marriage.

¶135

48. Now coming to the issue of desertion, which is also taken as a ground for decree of divorce.

¶136

49. The word „ desertion’ has been given in Explanation to Section 13 (1) wherein it has been stated that “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 wilfull neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.

¶137

50. It is pertinent to note that the word „desertion‟, as has been defined in Explanation part of Section 13 of the Act, 1955, 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.

¶138

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

¶139

“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

¶140

21

¶141

2025:JHHC:36736-DB

¶142

act of departure by one spouse does not necessarily make that spouse the deserting party.”

¶143

52. The legal position has been admirably summarised in paras453 and 454 at pp. 241 to 243 of Halsbury's Laws of England (3rd Edn.), Vol. 12, in the following words:

¶144

“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.

¶145

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

¶146

54. 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.

¶147

55. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding

¶148

22

¶149

2025:JHHC:36736-DB

¶150

the cause of action of desertion is not complete, but is inchoate, until the suit is constituted, desertion is a continuing offence.

¶151

56. It is, thus, evident from the aforesaid reference of meaning of desertion that the quality of permanence is one of the essential elements which differentiate 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.

¶152

57. 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 from the necessary intention aforesaid.

¶153

58. 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.

¶154

23

¶155

2025:JHHC:36736-DB

¶156

59. The law consistently has been laid down 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.

¶157

60. This Court, has again delved into the testimony of witnesses and found that till 2019 the respondent-wife was living with the petitioner in Patna, Ranchi, Muzaffarpur and Bhuwaneshwar with their children as a family. This fact has also been confirmed by the appellant-husband in the crossexamination wherein at paragraph -17, he has admitted that in between 2014-19, they were living together during vacation in Dumka, Patna, Ranchi and Bhuwaneshwar. He also admits that on 08.02.2019, he has attended a family function at Bokaro.

¶158

61. The mandatory requirement to file any case u/S. 13 (1) (ib) of Hindu Marriage Act, 1955 is of separation of two years. Therefore, it is evident that the case is not maintainable

¶159

24

¶160

2025:JHHC:36736-DB

¶161

u/S. 13 (1) (ib) of Hindu Marriage Act, 1955 making out a case of divorce on the ground of desertion.

¶162

62. Accordingly, issue as framed by this Court is decided against the appellant-husband and it is held that the judgment and decree passed by the learned family court, denying the decree of divorce passed to the appellant-husband on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act and on the ground of desertion under Section 13(1)(ib), requires no interference by this Court.

¶163

63. This Court, based upon the aforesaid discussion, is of the view that the appellant/petitioner has also failed to establish the element of perversity in the impugned judgment as per the discussion made hereinabove, as such, this Court do not find any merit in the appeal.

¶164

64. Accordingly, the instant appeal fails and is dismissed.

¶165

65. Pending interlocutory application(s), if any, also stands disposed of.

¶166

(Sujit Narayan Prasad, J.)

¶167

(Arun Kumar Rai, J.)

¶168

5^th December, 2025

¶169

A.F.R.