Rohit Sharma Vs Shivani Kumari Alias Sharma

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

F.A. No. 80 of 2023

Rohit Sharma, aged about 30 years, son of Chhoti Rana, resident of: Padariya, PO& PS: Barhi, District- Hazaribagh..… Petitioner/Appellant Versus

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Shiwani Kumari @ Sharma, aged about 24 years, wife of Rohit Sharma and daughter of Vinesh Lal Rana, resident of: Babugaon (Korra), P.O. & P.S: Korra, District-Hazaribagh. Now residing at parent’s village Padariya, PO & PS Barhi, District Hazaribagh.

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…… Respondent/Respondent

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

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------For theAppellant : Mr. Ashim Kumar Sahani, Advocate; Mr. Gautam Kumar Pandey;Advocate Ms. Trisha Kumari, Advocate For the Respondent : Mr.Pratik Sen, Advocate ---------

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CAVOn:20^th November, 2025 PRONOUNCED ON: 10/12/2025

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Per, Sujit Narayan Prasad J.

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The instant appeal under Section 19(1) of the Family Court Act, 1984 is directed against the order/judgment dated 03.03.2023 and decree dated 23.03.2023 passed by the learned Principal Judge, Family Court, Hazaribag in Original Suit No. 243 of 2022, whereby and whereunder, the Suit filed by the appellant under Section 13(1) (ia) and (i-b) of the Hindu Marriage Act, 1955, has been dismissed.

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The brief facts of the case leading to filing of the petition filed under Section 13(1) (ia) and (i-b) of the Hindu Marriage Act, 1955 by the appellant/petitioner needs to be referred herein which are as under:

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The marriage of the appellant/petitioner with the respondent wife was solemnized in Hazaribag on 30.04.2021 as per Hindu rites and customs. Out of their wedlock, one son, namely, Harshit Sharma was born

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on 08.01.2022. The respondent-wife was treating the appellant and his parents with cruelty claiming herself to be a lady from urban living and her matrimonial house is in rural area and also that the appellant has not got government job. She also addressed her mother-in-law as witch and she used to go to her parental house every now and then. She also assaulted the appellant by sleeper at her parental house. She refused to cook food since pregnant and also threatening to abort. The respondent is living in her parental house since 8.7.2021 and in spite of request made by the appellant, she refused to resume conjugal life. Panchayati took place on 5.8.2021, 9.11.2021 and 3.12.2021 wherein compromise took place but she refused to live in her matrimonial house. Therefore, the Suit has been filed by the appellant praying for divorce on the ground of cruelty and desertion.

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The learned Family Judge has called upon the respondent-wife. The wife has filed written statement and altogether six issues have been framed by the learned Family Court which are as follows:

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(i) Whether the suit as framed is maintainable in its present form ?

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(ii) Whether the parties are legally married husband and wife ?

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(iii) Whether the petitioner was treated with cruelty after marriage by the respondent?

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(iv) Whether the respondent voluntarily deserted the petitioner?

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(v) Whether the petitioner is entitled for the relief of divorce as prayed for on the grounds of cruelty and desertion as contained u/s 13(1)(i-a) and (i-b) of the Hindu Marriage Act,1955?

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(vi) Whether the petitioner is entitled for any other relief/reliefs?

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The evidences have been laid on behalf of both the parties. Thereafter, the judgment has been passed dismissing the suit by holding that plaintiff/husband is not entitled to get relief as claimed.

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Against the aforesaid Judgment, the present appeal has been filed.

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6. Arguments advanced on behalf of the petitioner/appellant:

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(i) It has been contended on behalf of the appellant that the learned court below has not considered the materials on record supported and corroborated by the evidence laid by the appellant which clearly make out a case for dissolution of marriage on the ground of cruelty and desertion.

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(ii) The learned court below committed an error in not taking into consideration that after marriage solemnized on 30.04.2021, the respondent/wife started treating the appellant and her in-laws in a cruel manner in different ways and she was addressing her mother-in-law (mother of the appellant husband) as witch and not only that, she assaulted the appellant by sleeper in her parental house which are sufficient grounds for dissolution of marriage.

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(iii) The learned court below also failed to take note of the decision taken in the Panchayati arriving at a settlement and even after settlement, she did not obey the terms of settlement, rather she implicated the appellant/husband and his family members in criminal case on false basis which is also a part of incident of cruelty on the part of the respondent.

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

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7. Argument by the learned Counsel for the respondent/wife:

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(i) Mr. Pratik Sen, the learned counsel for the respondent/wife has submitted that learned Family court has rightly held that the appellant is not entitled for the decree of divorce on the ground of cruelty and desertion because the appellant has failed to prove the allegation of cruelty and desertion against the respondent/wife.

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(ii) It has been argued on behalf of respondent that she never treated the appellant with cruelty rather evidences on record depict that it is the respondent who is sufferer and being tortured mentally and physically by the appellant and his family members.

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(iii) It has further been contended that the appellant-husband has no love and affection with his wife and the instant suit has been filed by the appellanthusband only to fulfill his oblique and illegal purpose and desire of divorce.

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(iv) The appellant-husband has no valid cause of action and he is not entitled to get any relief as claimed by him.

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(v) Submission has been made that the learned Principal Judge, Family Court on the backdrop of the evidence laid by the parties has come to the conclusion that the appellant-husband has not been able to bring any such act of respondent-wife on record which can be termed as cruelty on the part of respondent and whatever allegations have been made by the

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appellant against the respondent, seems nothing more than the ordinary wear and tear of a family life which cannot be made basis for divorce.

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(vi) Learned counsel for the respondent-wife on the aforesaid grounds has submitted that the impugned judgment requires no interference by this Court.

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Analysis:

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This Court has heard the learned counsel for the appellant and respondent and had gone through the findings recorded by the learned Family Judge in the impugned judgment.

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The case has been heard at length. The admitted fact herein is that the suit has been filed under Sections13(1) (i-a) and (i-b) of the Hindu Marriage Act, 1955 for a decree of divorce on the ground of cruelty and desertion wherein, issues have been framed wherein primarily issue nos.(iii) and (iv) are most relevant.

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It is evident from impugned order that the evidence has been laid on behalf of both the parties. For ready reference, the evidences laid on behalf of the parties are being referred as under:

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(i) PW-1- the husband-petitioner had deposed that he was married, with the respondent on 30.04.2021 as per Hindu rites and customs at Hazaribagh.Out of the said wedlock, one son namely Harshit Sharma born on 08.01.2022. He had further stated that respondentwife was treating him and in-laws with cruelty claiming to be lady from urban living and matrimonial village in rural area and also that husband (appellant herein) has not got Govt. job. He had further

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deposed that respondent wife has blamed her mother as a witch and once respondent/wife had assaulted this witness by sleeper at parental house. Further he had deposed that she refused to cook food since pregnant and also threatening to abort and thereafter Panchayati was convened on 05.08.2021, 09.11.2021 and 03.12.2021 but she has been living in her parental house since 08.07.2021 and She (respondent wife) refused to live in matrimonial house even compromise took place on 30.05.2022 in panchayati.

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The appellant in his cross deposed interalia that after marriage they lived in his village at Padariya for 10-15 days only. Thereafter, they went to Nagpur, since respondent-wife was quarreling. On 16.08.2022 she was taken to local Mahila P.S.Barhi, wherein compromise took place. Thereafter, she went away to Babugaon (Korra) with her mother. On 01.09.2022, police asked to approach Family Court. Thereafter, he lodged the suit.He had further deposed that on 30.05.2022, panchayati document was prepared in which more than 40 people were present there. After panchayati, respondent-wife went to her matrimonial house. He used to go to matrimonial house to meet son, but matrimonial relation did not allow him to meet with his son.

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(ii) PW-2, father of petitioner-husband had deposed that plaintiff is my son and opposite party is my daughter-in-law. He had stated that marriage between his son and daughter-in-law was solemnized on 30.04.2021. After marriage respondent has come his house and

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stayed there for one month. This witness has further testified on the same line as his son (appellant herein) has stated.

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In his cross he had deposed that petitioner party gone to police station and respondent-wife was blaming there that petitioner-husband and other in-laws were treating her with cruelty, denying food and confined her in a room. Respondent-wife stated that husband-petitioner is insane. On 23.09.2022, the police asked the petitioner-husband to resume conjugal life, but he refused. Then police advised to take shelter of the court.

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(iii) P.W.-3 Ajeet Kumar Rana is the signatory of Panchayati Document. In his cross he deposed interalia that panchnama is in three sheets. He proved the photocopy of panchnama, which was marked as X/1. He also claimed to be signatory over the same. His signature is not on the same page where respondent-wife and mother signed.

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(iv) P.W.-4- Mustakim Ansari, neighbour of the Petitioner/ husband. In his cross deposed interalia that he never saw the respondent-wife chasing mother of petitioner-husband by holding knife. No occurrence took place between the parties in his presence. He heard about the same in the Panchayati. His house is in front of the house of petitioner-husband. Twice Panchayati took place.

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(v) P.W.-5- Rajendra Thakur proved his signature over Marked - X/1 document as mark X/2 for identification. In cross he deposed that he was asked to come in Panchayati by petitioner–husband. His signature finds place at second page. He does not know vocation of

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petitioner –husband. Respondent–wife has been living in parental house. He did attempt reconciliation.

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On the other hand, the respondent/wife has examined altogether two witnesses in support of her case. Out of them Respondent-Witness No.1 Shiwani Kumari is the respondent herself.

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(i) RW-1Shiwani Kumari (respondent) herself had deposed that her marriage was solemnized on 30.04.2021 and from the wedlock she was blessed with a child namely Harshit Sharma. She had deposed that in marriage, cash, articles etc, were given but there was further demand of dowry and consequent cruelty. She had stated that she lived at matrimonial village Padariya as well also at DistrictGondiya and Nagpur (Maharashtra) where petitioner-husband has got factory and godown under the name and style of Sharma Glass and Encraft. She had deposed that she was treated with cruelty and she approached Mahila Police Station and on 16.08.2022, she was taken to Mahila P.S, Barhi by in-laws. She had further stated that on 23.08.2022, petitioner-husband refused to resume conjugal life and on 01.09.2022, respondent and her mother went to Police station, but husband-petitioner and his family members did not come. She had deposed that petitioner-husband has got extra marital relationship with ladies in Nagpur and Gondiya (Maharashtra) and on protest she was ill-treated and her signature was obtained under undue pressure by local influence people over panchayati agreement dated 30.05.2022.

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In cross she had deposed that husband-petitioner was paid money through RTGS, report is there. She cannot say detail of land of petitioner-husband nor can say the date of her going to Gondiya and Nagpur, with her husband. She has got no document that petitioner-husband is owner of Glass factory and show-room at Gondiya and Nagpur. On third day of marriage, Rs. 10 lac and car were demanded and thereafter there was consequent cruelty. No case for same was lodged. She did not lodge any case after failure of mediation at Police Station. She lodged maintenance case after acknowledgement of notice of present suit. Her brother and mother are signatories over panchayati held on 30.05.2022. No case was lodged for undue influence upon them to put above signatures. Her matrimonial house is in rural area while parental house is in town area at Korra.

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(ii) R.W.-2- Mother of respondent-wife has stated on the same line as stated by the respondent and in her cross she had deposed that respondent–wife did not lodge any case prior to filing of the suit which has been filed by the appellant husband.

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The learned Principal Judge, from the statements of the witnesses so produced on behalf of the parties, has come to the conclusion that appellant has failed to prove the grounds of alleged cruelty and desertion pleaded by him in his petition.

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In the context of the aforesaid factual aspect only seminal issue has to be decide herein that “Whether the petitioner/husband is entitled to get divorce dissolving the marriage of the petitioner/appellant with OP/wife on

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the ground of mental cruelty and desertion U/s 13(1) (i-a) (1-b) of the Hindu Marriage Act, 1955?

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Since the learned counsel for the appellant has raised the issue of perversity by contending that the findings recorded by the learned Family Court while answering issue no. (iv) (cruelty) are perverse, therefore, before addressing the aforesaid seminal issue it would be apt to discuss herein the appropriate meaning of word “perverse”.

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This Court while appreciating the argument advanced on behalf of the appellant 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.

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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 2025:JHHC:31726-DB 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:

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"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.

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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.

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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.

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The expression "perverse" has been defined by various dictionaries in the following manner:

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Oxford Advanced Learner's Dictionary of Current English, 6th Edn. "Perverse.--Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable."

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Longman Dictionary of Contemporary English, International Edn. Perverse.--Deliberately departing from what is normal and reasonable.

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The New Oxford Dictionary of English, 1998 Edn.

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

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

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

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

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"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."

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Thus, from the aforesaid it is evident that if any order made in conscious violation of pleading and law then it will come under the purview of perverse order. Further “perverse verdict" may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.

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Issue of Cruelty

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Now this Court is adverting to the issue of cruelty. It requires to refer herein the definition of ‘ cruelty’ as has been defined by Hon’ble Apex Court in the judgment rendered in Dr. N.G. Dastane Vs. 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.

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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.

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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

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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.”

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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.”

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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.

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

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In Vijay Kumar Ramchandra Bhate v. Neela Vijay Kumar 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

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held to constitute “cruelty” itself.

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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 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.

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The Hon’ble Apex Court in the case of Vidhya Viswanathan v. Kartik Balakrishnan , (2014) 15 SCC 21 has specifically held that cruelty is to be determined on whole facts of the case and the matrimonial relations between the spouses and the word ‘cruelty’ has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other.

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Now reverting to the fact of the case it has been stated by the appellant/husband that the respondent/wife used to quarrel and she had treated him and in-laws with cruelty claiming to be lady from urban living and matrimonial village in rural area and also that husband (appellant herein) has not got Govt. job. It has further been alleged that respondent wife has blamed her mother as a witch and once respondent/wife had assaulted this witness by sleeper at parental house.

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Per contra the respondent/wife had stated in her testimony before the

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learned Family Court that on third day of marriage, Rs. 10 lac and car were demanded and thereafter there was consequent cruelty. She was treated with cruelty and She approached Mahila Police Station and on 16.08.2022, she was taken to Mahila P.S, Barhi by in-laws. She had further stated that on 23.08.2022, petitioner-husband refused to resume conjugal life and on 01.09.2022, respondent and mother went to Police Station, but husbandpetitioner and his family members did not come. She had deposed that Petitioner-husband has got extra marital relationship with ladies in Nagpur and Gondiya (Maharashtra) and on protest she was ill-treated and her signature was obtained under undue pressure by local influence people over panchayati agreement dated 30.05.2022.

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Admittedly, the plea of cruelty has been raised by the appellant husband thus onus is upon him to prove the fact of cruelty caused upon him by the respondent/wife.

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It is evident from the oral evidence of petitioner/husband that the petitioner has himself said in his evidence as P.W. 1 that after Panchayati the respondent wife had come to the matrimonial house and from the aforesaid fact it may be inferred that after said Panchayati respondent wife was ready to resume her conjugal life with the appellant. Further, it has been stated by the appellant husband that respondent wife has blamed her mother as a witch but the appellant husband has not examined his mother as witness as such the aforesaid fact has not been substantiated/corroborated, therefore merely by saying that the respondent/wife has used such word for his mother is not proved herein.

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It has been alleged by the appellant that respondent-wife was treating him and in-laws with cruelty claiming to be lady from urban living and

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matrimonial village in rural area and also that husband has not got Govt. job. But from the impugned judgment it is evident that the learned Family court has relied upon the document MarkedY/1- and specifically found that petitioner-husband is owner of a factory/workshop. The learned Family Judge has further observed by relying upon the document Marked Y wherefrom it appears that Rs. 5.5 lac was paid into account of Sharma Glass factory by mother of respondent-wife, thus entire family was knowing that the petitioner-husband is a factory owner.

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Thus, it is evident that the appellant husband has not produced any cogent evidence in regard to the cruelty which has been subjected to him by the respondent/wife. Further from the perusal of impugned judgment it is evident that the learned Family Court after due appreciation of the evidence, oral as well as documentary has specifically observed that the appellant could not prove his case on the ground of cruelty.

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This Court, based upon the aforesaid discussions on the issue of cruelty, is of considered view that the issue of cruelty as has been alleged by the appellant-husband against his wife could not be proved because no cogent evidence to that effect has been produced by the appellant and further since, the learned Principal Family Judge after appreciating the entire evidence had recorded its finding, therefore, it is considered view of this Court that the appellant/petitioner has failed to establish the element of perversity in the aforesaid finding of the learned Family Court.

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This Court, based upon the aforesaid discussions on the issue of cruelty, is of considered view that the issue of cruelty as has been alleged by the appellant-husband against his wife could not be proved because no concrete evidence to that effect has been produced by the appellant.

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Thus, as per the discussions made hereinabove and law laid down by Hon’ble Apex Court which has also been referred herein above this Court has no reason to take different view that has been taken by the learned Family Court proving the ground of cruelty.

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Issue of desertion

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Now coming to the issue of desertion, which is also taken as a ground for decree of divorce. It is evident from the from the plaint of the petitioner before Family Court which has also taken note in the impugned judgment, that the husband and wife are living separately.

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Learned Family Judge, taking into consideration the fact that since even otherwise there is no desertion on the part of respondent-wife as she in her evidence also has deposed that she is ready to live and stay with her husband thus, although the husband appellant had filed petition under subsection (i-b) of Section 13(1) of the Hindu Marriage Act, 1955 but no cogent evidence was led in this respect, as such the same was discarded by the learned family court.

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It needs to refer herein that 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 willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”

¶134

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

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without the consent or against the wishes of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.

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Rayden on Divorce , which is a standard work on the subject at p. 128

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(6th Edn.), has summarised the case-law on the subject in these terms:

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“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.”

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The legal position has been admirably summarised in paras-453 and 454 at pp. 241 to 243 of Halsbury's Laws of England (3rd Edn.), Vol. 12 , in the following words:

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“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.”

¶143

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.

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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

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.

¶148

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.

¶149

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.

¶150

The Hon'ble Apex Court in DebanandaTamuli 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.

¶151

19 F.A. No. 80 of 2023

¶152

2 025:JHHC:37331-DB

¶153

The law consistently has been laid down by the Court 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.

¶154

Herein the appellant has stated that the respondent/wife has deserted him without any reason but it is evident from the testimony of the respondent that she has stated that she wants to live with the appellant. Further from record it is evident that marriage between the parties was solemnized on 30.04.2021 and the suit for dissolution for marriage was filed by the appellant husband on 01.09.2022 which is within two years of the marriage and the learned Family Court has taken into consideration the aforesaid fact has rejected the said ground of desertion as alleged by the petitioner/appellant.

¶155

This Court, on the basis of discussions made hereinabove, is of the view that the finding of the learned Family Court that the ground of desertion as one of the grounds for divorce is not sustainable, has rightly been appreciated, as such, we have no reason to take a different view that has been taken by the learned Family Court.

¶156

Accordingly, the issue as framed by this Court is decided against the appellant-husband, therefore it is considered view of this Court that the learned Family Court had rightly not granted the decree of divorce in favour

¶157

20 F.A. No. 80 of 2023

¶158

2 025:JHHC:37331-DB

¶159

of the appellant husband on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act or on the ground of desertion under Section 13(1)(ib), as such same is requires no interference by this Court.

¶160

This Court, on the basis of discussions made hereinabove, is of the view that the judgment dated03.03. 2023 and decree dated 23.03.2023 passed by the learned Principal Judge, Family Court, Hazaribag in Original Suit No. 243 of 2022 whereby and whereunder the Original Suit No.243 of 2022 filed by the petitioner-appellant-husband under Section 13(1), (i-a), (ib) of the Hindu Marriage Act, 1955 for a decree of divorce has been dismissed, requires no interference by this Court.

¶161