Binod Kumar Mishra Vs Preeti Pandey Alias Preeti Mishra

2025:JHHC:19306-DB

IN THE HIGH COURT OF JHARKHAND AT RANCHI First Appeal (DB) No.85 of 2023

Binod Kumar Mishra, aged about 50 years, Son of Sri Surya Nath Mishra, resident of C/194, Police Colony, P.O.-Anisabad, P.S. Gardanibagh, District-Patna (Bihar)

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…. …. Appellant

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-Versus- Preeti Pandey @ Preeti Mishra, W/o Binod Kumar Mishra, D/o Sri Vijay Prasad Pandey, resident of Qr. No.II/48, Shastri Nagar, Moonidih, P.O. & P.S. Putki, District-Dhanbad, also R/o C/o Principal, D.A.V School, Moonidih, P.O. & P.S. Putki, District-Dhanbad …. …. Respondent

…. …. Respondent

PRESENT

HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE RAJESH KUMAR

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For the Appellant	---- : Mr. Rajesh Kumar, Advocate : Mr. Vikash Kumar, Advocate
For the Respondent	: Mrs. Vani Kumari, Advocate : Mr. Aniket Ranjan, Advocate : Mr. Prince Pandey, Advocate

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Dated: 15^th July, 2025

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Per Sujit Narayan Prasad, J.

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1. This appeal filed under Section 19(1) of the Family Courts Act is directed against the judgment dated 01.03.2023 and decree dated 16.03.2023 passed by the learned Principal Judge, Family Court, Dhanbad in Original Suit No.908 of 2022 whereby and whereunder the suit preferred by the appellant for dissolution of marriage under Section 13(1) (i-a), (i-b) of the Hindu Marriage Act, 1955 has been dismissed.

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Submissions advanced by the learned counsel appearing on behalf of the appellant:

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2. The following grounds have been taken on behalf of the appellanthusband while assailing the impugned judgment which reads as under:-

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(i) The element of cruelty, although, is fully established but that has not been taken into consideration in right perspective.

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(ii) The element of cruelty is also further established on the ground that a criminal case was instituted implicating all the family members for alleged commission of offence under Section 498(A) of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act.

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(iii) Although, the Competent Court having jurisdiction has convicted the appellant-husband, the said judgment of conviction was subsequently reversed in the judgment of acquittal passed by the Appellate Court and that is the sufficient ground to establish the element of cruelty by the appellanthusband, since, the allegations of torture, both mental and physical, and the demand of dowry could not have been established. Hence, the same itself amounts to cruelty meted out to the husband.

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(iv) To buttress his argument, learned counsel appearing for the appellanthas relied upon the judgment rendered by the Hon’ble Apex Court in the case of K. Srinivas vrs. K. Sunita in Civil Appeal No.1213 of 2006 reported in 2014 (16) SCC 34 .

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Submissions advanced by the learned counsel appearing on behalf of the respondent:

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3. Per contra, Mrs. Vani Kumari, learned counsel appearing for the respondent-wife has argued while defending the impugned judgment by taking the following grounds:-

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(i) The learned Family Judge has committed no error, since, every aspect of the matter as has been led by evidence on behalf of the respondent-wife, has been taken into consideration in right perspective.

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(ii) The suit for dissolution of marriage was filed both under Section 13(1) (i-a), (i-b) of the Hindu Marriage Act, 1955 but the element of desertion has not been found to be substantiated and for that purpose specific finding was recorded by the learned Family Judge.

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(iii) The said finding in the present appeal is not under challenge, rather only the element of cruelty which has not found to be substantiated as per the finding recorded by the learned Family Court, is under challenge in the present appeal.

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(iv) The contention, therefore, has been raised that the moment the element of desertion could not have been established on the basis of lack of evidence having not been produced by the appellant-husband, rather, findings have been arrived at by the learned Family Judge that it is the husband who has forced the respondent-wife to leave the matrimonial home, the same itself amounts to cruelty meted outto the wife by the husband.

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(v) It has also been submitted by showing the conduct of the appellanthusband that initially a suit was filed for dissolution of marriage being Matrimonial Case No.438 of 2007, the Court having its jurisdiction at Patna. The respondent-wife after having known about the same had to rush to the Hon’ble Apex Court by filing Transfer Petition for transferring the matrimonial case to the jurisdiction available to the judgeship in the district of Dhanbad (State of Jharkhand), since, the wife resides there. The case, accordingly, was transferred to Dhanbad but with ulterior motive, the appellant-husband did not appear in the said suit leading to its dismissal for non-prosecution.

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(vi) No effort was taken for its restoration, rather, the appellant-husband has again filed afresh matrimonial suit in Patna and the respondent-wife has to again rush to the Hon’ble Apex Court for its transfer and thereafter, the matter was transferred to the judgeship of Dhanbad which finally culminated into the impugned judgment.

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4. Learned counsel based upon the aforesaid submission wants to infer that it is the conduct of the husband towards his wife which shows cruelty by the husband. It has also been submitted that so far as the reliance upon the case of K. Srinivas (supra) by the appellant-husband showing the acquittal in criminal case to establish the element of cruelty is concerned, the said judgment is not applicable in the facts and circumstances of the present case, since, ample evidence is there to establish the element of cruelty and the desertion meted out by the husband towards the wife.

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5. Learned counsel appearing on behalf of the respondent, based upon the aforesaid grounds, has submitted that the Family Judge while passing impugned judgment has committed no error and instant appeal is fit to be dismissed. Analysis:

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6. We have heard the learned counsel for the parties and gone through the findings recorded by the Family Judge in the impugned judgment as also the evidences available in the trial Court record, which has been called for vide order dated 05.08.2024 passed by the Co-ordinate Bench of this Court.

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7. This Court has gathered issues from the arguments advanced on behalf of the parties which calls for consideration as under:

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(i) Whether the findings recorded by the learned Family Judge with respect to element of cruelty having not found to be substantiated can be said to suffer from an error?

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(ii) Whether the contention which has been raised on behalf of the appellant-husband pointing out the error in the finding recorded by the learned Family Judge in not finding ample evidence to prove the element of cruelty where the desertion has been cast upon the husband, will it not be said to be cruel behaviour of the husband towards the wife?

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(iii) Whether reliance of the judgment rendered in the case of K. Srinivas (supra) by the Hon’ble Apex Court in the event of acquittal in a criminal

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case can only be a piece of evidence to establish the element of cruelty leaving aside the other surrounding factual aspect in a particular case?

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8. All these three issues are interlinked, and as such, are being taken up together.

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9. But before considering the aforesaid issues, the factual aspect leading to institution of the suit for dissolution of marriage needs to be referred herein as per the case pointed out by the appellant-husband in the plaint:-

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(I) The appellant/petitioner was legally married to the sole respondent on 22.02.2004 at Official Quarter No. II/48, Shastri Nagar, Moonidih, P.S.Putaki, District- Dhanbad, Jharkhand after observing the rituals and ceremonies prescribed for the marriage according to the Hindu Custom. (II) The petitioner and the respondent are Hindu as defined in section 2 of the Hindu Marriage Act, 1955 (hereinafter called as Act)and both the petitioner and respondent and their parents are the follower of Hindu faith. (III) The petitioner and respondents and their parents are resident and domicile within the territory of India since before the aforesaid marriage. (IV) The respondent after the marriage. came to Patna at the petitioner's house and livedtogether as rented accommodation and they lastly resided there.

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(V) The respondent after stay of few weeks at the house of petitioner expressed her desire to go to her father's place. During the stay of respondent at the petitioner's house, the petitioner felt uneasiness and unwillingness of the respondent to live at her in-laws although the petitioner could not said anything to her.

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(VI) The petitioner wanted to know the reason of quick departure of the respondent from her in-laws, but the respondent avoided to disclose the real fact behind it and forced the petitioner to drop her to her Maike.

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(VII) The respondent after that left her in-laws for her father's place on 15.04.2004 and lived there for more than 12 years and 11 months. The petitioner wanted to know the reality and after inquiry, it was learnt that respondent was not willing to live in a joint family as she wanted to live separately with the petitioner at Dhanbad where the petitioner was posted as a government employee.

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(VIII) It is relevant to point out here that:-

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(i) The petitioner's father Shri Surya Nath Mishra is a retired government servant and has four sons namely (i) Anil Kumar Mishra, (ii) Bijay Kumar Mishra (iii) Pramod Kumar Mishra and the petitioner Binod Kumar Mishra. All the brothers of the petitioner are married and their wive’s names are as follows: (1) Asha Mishra wife of Shri Anil Kumar Mishra, (2) Nirmala Mishra wife of Shri Bijay Kurnar Mishra (3) Urmila Mishra wife of Pramod Kumar Mishra and Preeti Mshra wife of the petitioner Binod Kumar Mishra.

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(ii) The petitioner and all the brothers were living together and their mess was in jointness under the supervision of the petitioner’s father Shri Surya Nath Mishra.

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(iii) It is relevant to point out here that during her stay at sasural she never adjusted there and also started quarrelling with other family members of the petitioner and was not willing to help the family members of the petitioner in any houselhold work. Only due to pragmatic behavior of the respondent the petitioner has to cook his food separately for sometime.

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(iv) The petitioner is having a government quarter at Dhanbad whose address is as follows: Quarter No. BB/14, C.M.P.F. Colony, Jagjivan Nagar, Dhanbad and working in Office of Coal Mines Provident Fund Commissioner at Dhanbad, which was allotted to him in the month of November, 2006.

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(v) The respondent being native of Dhanbad used to threaten the petitioner of dire consequences if he will not agree to her demand of leaving separately from here joint family. The petitioner was helpless and he was force to leave Dhanbad on 31.05.2007, since he was posted there.

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(vi) Even the in-laws of the petitioner used to send the muscle man at the quarter of the petitioner at Dhanbad and they forcefully took away the salary of the petitioner.

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(vii) Although both the petitioner and respondent are leaving at Dhanbad but the respondent never visited the petitioner, but she took all care to malign the image of petitioner in his residential colony and at his office. She also used to send him threat that she will commit suicide.

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(viii) Because of the scene created by the respondent the petitioner was put under great mental stress and trauma, he was unable to perform his official duty because of loss of social image and prestige.

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(ix) The family members of the respondent also used to threaten the petitioner to agree to the demand of the respondent to live separately otherwise he has to face the music.

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(x) The family members of the respondents are very strong persons and rich also, and they are also in league with some criminal elements being native of Dhanbad. All this factors has made the life of the petitioner hell and he was desperate to leave Dhanbad. Although he attempted reconciliation with the respondent and her family members but all his efforts failed to reconcile there. (xi) The respondent was not ever willing to compromise and she insisted for living separately with the petitioner.

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(xii) The petitioner is living in a joint tamily since long and all other family members of the petitioner are having a very good relation with him and they are very cordial with each other. The mother of the petitioner died when the petitioner was only 4 years old. Hence now at this juncture he does not want to leave his father and desert him when he himself has become an old man and need help from his sons including the petitioner.

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(xiii) The aforesaid facts and circumstances as stated above the petitioner want to repay the obligation of his family members and therefore no reason for him to leave his joint family.

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(xiv) The respondent in such circumstances is not willing to live with the petitioner and she is residing at her Maike for more than 12 years and 11 months and the separation is also of more than 12 years with the petitioner.

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(xv) The petitioner has also received threat on his life from his inlaws family and also bear the pain and cruelty of his in-laws in these years. That the petitioner after the aforesaid threat went on long leave and he is still continuing on that and presently residing at his house at Patna.

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(xvi) The family member of the opposite parties threatens the family members of the petitioner of false implication in criminal cases. (xvii) In the aforesaid facts and circumstances stated above it is apparent that respondents is living separately for more than 12 years and she also treated the petitioner with cruelty in which her family members were in hands to gloves.

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(xviii) The cause of action of this petition arose on 22.02.2004 when the marriage of the petitioner was perform with respondent and subsequently on various occasions when the act of the cruelty has been committed by the respondent with the petitioner and his family members and lastly on 15.04.2004 when the respondent deserted the petitioner in laws house situated at C/115, Police Colony, P.S.- Gardanibagh, P.O.- Anisabad, District-Patna. Hence it is within the jurisdiction of this learned Court. The petitioner only serves at Dhanbad.

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(IX) It is relevant to mention here that the petitioner has already filed a divorce petition bearing Matrimonial (Divorce) Case No. 438 of 2007 against the respondent on 22.08.2007 before the Principal Judge, Family Court at Patna and notices were also served to respondent, but irrespective of appearing the court the respondent choose to file a counter-case under section 498(A) of the Indian Penal Code against the petitioner and all of his family members at Dhanbad on 06.10.2007.

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(X) Again not satisfied with it, the respondent also filed a case for transfer of the Matrimonial (Divorce) Case No. 438 of 2007 to Dhanbad, Jharkahand in the Honorable Patna High Court which was later dismissed, and then they again filed a case for transfer of the said divorce case, in Honourable Apex Court by filling false affidavit (which was later came to know to the petitioner) and on that such very ground, the case was transferred to the Family Court at Dhanbad.

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(XI) The said matrimonial divorce case was later dismissed for default on both the parties as proper pairavi was not done by the learned counsel for the petitioner as the O.P. has influenced everyone there in Dhanbad. It is pertinent to mention here that the petitioner in residing in Patna for the last 10 years.

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(XII) The main motive of the O.P. for leaving the matrimonial house is to live separately at the house of her father and keep the petitioner as "GHAR JAMAI". She has without informing or consultation of the petitioner after leaving his matrimonial home completed the B.Ed. course from Raipur, Chhatisgarh and after that she is teaching as a primary teacher in D.A.V Public School, Moonidih, Dhanbad.

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(XIII) The O.P. and her father hatched a conspiracy and met the Head of the Department of the petitioner, and also lodged false complaint there and her father has given false evidence in a disciplinary proceeding against the petitioner and owing to that the department has dismissed the petitioner from the services of Government of India.

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(XIV) The reason behind leaving the matrimonial home and desertion of the petitioner by the respondent is only to disturb. harass, malign the image, of the petitioner and his family members and to the certain stage he has achieved the same by using various nefarious designs.

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(XV) The respondent has filed a false case under Section 498(A) IPC against the petitioner and his family members including the elder brother of the petitioner namely, Anil Kumar Mishra and his wife and he has not digested the trauma from the time of filling of the case and owing to that he was in great depression and received severe brain stroke and died on 07.11.2015 leaving a son and wife.

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(XVI) The respondent has misused the process of law law in every nook and corner.

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(XVII) The petitioner husband filed this case for the decree of divorce without any pressure of under influence and without the collusion of the opposite party.

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The petitioner prays for the following relief:-

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(i) On adjudication of the claim of the petitioner husband the decree for divorce to be passed in favour of the petitioner by dissolving the marriage of the petitioner husband with opposite party wife.

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(ii) The cost of this proceeding be awarded to the petitioner from the sole respondent.

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(iii) Any other relief or relieves to which petitioner is entitled in the eyes of laws be awarded to him.

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10. The respondent-wife appeared on being noticed and she has filed written

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statement. Grounds which have been taken in the written statement reads as

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under:-

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(a) The suit filed by the petitioner for divorce being Matrimonial Case No.391 of 2017 is pending before the Family Court, Dhanbad being transferred by the Hon’ble Apex Court and the present suit is Original Suit (M) No.908 of 2022.

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(b) The respondent has nothing to say regarding paragraph Nos. 1 to 3 of the plaint filed by the petitioner.

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(c) Regarding paragraph Nos.4, 5 & 6 of the plaint, it is submitted that some parts of it are true. The Respondent entered into wedlock with the petitioner according to Hindu rituals and customs and came to her in-laws’ house. Under the same ritual, she arrived on 26 May 2004 and on 13 June 2005 her husbandBinod Kumar Mishra took her to the rented house at Patna. During this time, in the same colony, plot number C/194 was purchased for house construction. For the construction of the house, the land worship (Bhoomi Pujan) was done in June 2006. She was brought there. With the consent of her father-in-law and mother-in-law, she came to her Maike at Dhanbad with her brother on 13^th June 2006.

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(d) Regarding paragraph 8 of the above suit, it is submitted that it is completely false.

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(e) Regarding sub-paragraph Nos.1 & 2 of the paragraph No.8, the respondent has nothing to say.

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(f) Regarding sub-paragraph No.3 of paragraph No.7, it is submitted that while she was at her in-laws’ house, all household responsibilities were fulfilled by her and her sister-in-law (Gotni) Nirmala Mishra with full dedication. Whenever the petitioner was there at Patna, maximum time was spent by him with sister-in-law (Gotni) Asha Mishra for which she also argued with him. Other allegations are completely false.

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(g) Regarding sub-paragraph Nos.4 to 17 of paragraph No.8, it is submitted that it is imaginary and false. The fact is that in November 2006, on getting accommodation in the CMPF colony, the Petitioner told the Respondent to come to Dhanbad and when she did the same, he showed her the accommodation and asked for ₹25,000/- (twenty-five thousand rupees) to be taken from her father. When she told her father, he arranged the money and handed it over to him. After that, both of them started living in the said accommodation, and every week they went to Patna. They stayed in the quarter for six months. Meanwhile, a case was filed in the CBI Court against the petitioner and thereafter, petitioner left for Patna after leaving her at Dhanbad. The petitioner also abused her.

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(h) Regarding paragraph Nos.9 and 10 of the plaint, it is submitted that the respondent had informed that against those persons in the Matrimonial home, who had tortured her physically and mentally, a complaint case being Complaint Case No. 1662 of 2007 was instituted in the Dhanbad Court. The petitioner also filed a divorce petition on 22.08.2007, and a notice was served to her. To transfer the said case, the respondent had filed an application before the Hon’ble Apex Court. The Hon’ble Apex Court accepted the application on 17.04.2010 and transferred the case from Patna. However, due to non-compliance of the direction of the Court on 23.04.2015 petitioner’s suit was dismissed.

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(i) Regarding paragraph No.11 of the plaint, it is submitted that the T.M.S. No. 309 of 2010 was dismissed on 23.04.2015 for non-compliance of the Court’s directions. Hence, the Petitioner is making false allegations that all documents were manipulated at Dhanbad, whereas the same was dismissed by the learned Court.

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(j) Regarding paragraph Nos.12, 13 and 14 of the plaint, it is submitted that the petitioner’s allegations are false and baseless. (k) Regarding paragraph No.14 of the plaint, it is submitted that petitioner wrote a letter on 05.07.2010 while he was in custody in connection with R.C. Case No. 06(A)/2009 and as soon as she received the same on 02.08.2010, she got prepared compromise petition and signed it in front of counsels for both the sides and filed the same in the concerned court. The petitioner was remanded in connection with C.P Case No.1662 of 2007 and when he got bail, she was waiting outside the Jail with her brother-in-law and when he came out of the jail, he asked the respondent to go to Monodih and both brothers went to Patna. She is still waiting for her husband and she has fulfilled all responsibility of a wife and she is waiting for the petitioner to act on his letter as promised by him. (l) The respondent seeks aforesaid relief from the Hon’ble Court that in this suit the Petitioner should act upon the letter which he sent to her from Dhanbad Divisional Jail and along with this, he should also fulfill his marital duties.

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11. The learned Family Judge has allowed the parties to adduce evidence

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and accordingly the evidences have been led on behalf of both the parties, which reads as under:-

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On behalf of the Plaintiff/ Appellant husband

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PW-1 Pramod Kumar Mishra is brother of the plaintiff (appellant herein). He has testified in his examination-in-chief that his brother was

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married to the respondent Preeti Pandey on 22.02.2004 at Dhanbad and after marriage she came to his house at Patna. He has further testified that his brother/the petitioner was posted in CMPF Office at Dhanbad and was residing there with his friends. He has further testified that after some days of living in her Sasural, she started quarreling with his family members and always she was of cruel behaviour with everyone of his family. The respondent always wanted to live separately with his brother/the petitioner at Dhanbad in her parental house as 'Ghar Jamai' and she left her matrimonial house on 15.04.2004 in absence of his brother and without giving information to them and she started residing at Dhanbad and she never tried to join her matrimonial home.

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During his cross-examination, he has completely perjured by stating that his brother Binod Kumar Mishra never filed any case for divorce against the respondent. He has further expressed his ignorance regarding Matrimonial Suit No. 438/2007 which was initially filed by his brother/the petitioner in the court of Principal Judge, Family Court, Patna, but later on the said matrimonial suit was transferred to Dhanbad and the same was dismissed on 23.04.2015.

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PW-2 Binod Kumar Mishra is the plaintiff himself. In his examinationin-chief he has stated that he was married to the respondent Preeti Mishra on 22.02.2004 at Quarters No. II/48, Shastri Nagar, Moonidih, P.S- Putki, District- Dhanbad, Jharkhand. After marriage she came to her Sasural at Patna at C/115, Police Colony, P.S- Gardanibag, P.O- Anisabad, DistrictPatna, (Bihar). He has further testified that he used to reside in joint family with his four brothers as his parents died when he was only of 4 years. He has further testified that after some days, she started trouble in daily household work and started showing unwillingness to settle in his house. On 15.04.2004 she left her matrimonial home and started living at her father's house, because she had rude behaviour and she was not willing to reside in a joint family and she used to quarrel regularly with other family members. He has further testified that he used to reside in Dhanbad with his friend, in a common room on sharing basis because by that time he was not allotted government accommodation in Dhanbad by his department and the respondent used to reside with her father at Dhanbad after leaving the matrimonial home and she always pressurized him to leave his joint family and to reside with her in her father's house as a 'Ghar Jamai'. He has further

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testified that the respondent used to create social problem in his life by visiting his friends and colleagues, and spreading misinformation regarding him and always maligned his image. He has further testified that he tried to reconcile the issue, but she was adamant to live separately and owing to this, she always threatened him that she would implicate him and his family members in a false criminal case. He has further testified that on 19th April 2007, at about 1:30 AM to 2:00 AM, she along with her father, brother and 6 to 7 unknown persons entered into his house and started living there and her father used to stay in his house every day for 4 to 6 hours and he informed his employer and fled from there to save his life. He has further testified that during his stay at his government accommodation she threatened that she would commit suicide. He has further testified that due to desertion and mental and physical cruelty he left Dhanbad on 30.05.2007 abandoning his government job by taking leave from office to save his life. Seeing no alternative he filed a Matrimonial Divorce case in Principal Judge, Family Court, Patna on the ground of desertion and cruelty on 22.08.2007 and after getting notices she also filed a false criminal case U/s 498 (A) of IPC to save her skin and on 06.10.2007 she also filed a case for restitution of conjugal rights at Dhanbad. He has further testified that the respondent after appearing in Matrimonial Suit No. 438/2007 preferred an application to transfer of that case from Patna to Dhanbad on the basis of false affidavit in the Hon'ble Apex Court of India and succeeded to transfer that case to Dhanbad which was later on dismissed for default. He has further testified that the respondent and her father gave false representation to his employer and on that representation, the employer initiated a disciplinary proceeding against him and dismissed him from his government service on the basis of false deposition of the respondent and her father.

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During his cross-examination in paragraph 26 he has admitted that he has not stated about the suit for divorce filed by him against his wife and he has failed to give the accounts of the suit and has admitted that he cannot state why the suit for decree of divorce was dismissed. During a court question, he has categorically admitted that he himself has left the government quarters allotted to him at Dhanbad and in his absence also and even during pendency of cases between them, his wife/the respondent used to reside in his quarters. The question was put to him either he was willing

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to take his wife with him, he flatly denied to take his wife with him and has also admitted that after 2007 he has never offered his wife to come to his residence. He has admitted to have gone into jail twice in connection with the criminal cases filed by his wife. In further reply to a question put by the court whether he would allow his wife to live in his house if she voluntarily reached there, he replied that he would not let her live with him. From the above contentions of the petitioner, it is demonstrably clear that long desertion between the petitioner and the respondent has been caused not by the respondent rather, by the petitioner himself.

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On behalf of Defendant/Respondent wife

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DW-1 Preeti Mishra is the defendant herself, who has stated in her examination-in-chief that on being married off to her husband/ the petitioner on 22.02.2004 at Moonidih she went to her Sasural and finally in the year 2005 in the month of June she was taken to Patna by her husband. Later on she was taken to Dhanbad from Anishabad, Patna on 04.08.2006. Later on her husband started sharing 99% time of Patna with her GotniAsha Mishra and on her protest her Gotni Asha Mishra also used to torture her. On 6th November 2006 a quarter of CMPF, Dhanbad was allotted to her husband and she came to Dhanbad and entered in the said quarter for which the petitioner demanded a sum of Rs.25,000/-. Her father Sadaband Dixit gave the same amount to her husband at Moonidih. After 20 days, her husband took her to the quarters of CMPF and lived there for 40 days, but in the meantime an inquiry was started by CBI against her husband on which he left her at Dhanbad and went to Patna and accordingly she also handed over the keys of the government quarter of CMPF to her husband's friend Rajesh Singh and went to her father's house at Moonidih. She has further testified that on 31^st May 2007 her husband finally went to Patna and filed a matrimonial case being Matrimonial Case 438 of 2007, but the said matrimonial case was dismissed on 23.04.2015 by the Principal Judge, Family Court, Dhanbad. Again the petitioner filed the Matrimonial Divorce Suit No.391/2017 before the learned court of Principal Judge, Family Court, Patna and on the basis of the order of the Hon'ble Apex Court, the suit has been transferred to Family Court, where it has been registered as O.S No. 908/2022. She has further testified that in R.C Case No. 06(A) of 2009 her husband was in custody at Mandal Kara, Dhanbad and at the same time on 05.07.2010 he was remanded in the C.P case filed by her. On

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24.07.2010 Parmod Mishra, brother of her husband, served a letter to her at Moonidih and on his assurance she kept meeting him at Mandal Kara, Dhanbad and on 02.08.2010 a paper of agreement was signed by her, by her husband and the witnesses and on the basis of that compromise petition, the petitioner obtained bail from the court and same day at about 9:00 PM the petitioner Binod Kumar Mishra and his brother Anil Kumar Mishra asked her to go to her parent's house and went to station and she had no option, but to reach her father's house at 11:30 PM. She has lastly testified that still she is willing to live with her husband at Dhanbad and still she is willing to live with her husband at any cost.

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During her cross-examination, she has admitted that right from 2006 to 2019 her husband has been in talking terms with her but recently he is telling her that she can live with him only as a friend, and not as a wife. She lived with her husband in the quarter of CMPF from 19^th April to 31^st May 2007 and subsequent to that period,her husband voluntarily left that place leaving her alone there for a period of three months. She has disclosed that in the case in which initially her husband was convicted and ordered to undergo imprisonment of three years, later on the said order of conviction was set aside by the Appellate Court at Dhanbad, but, she has filed a criminal revision before the Hon'ble High Court of Jharkhand against the judgment of acquittal passed by the Sessions Court. She has denied the suggestion of the petitioner that she is not entitled to live and to continue her relation with her husband.

¶125

DW-2 Devendra Prasad , He has also completely supported the assertions and averments made by the respondent in her evidence before the court.

¶126

12. The learned Family Court has formulated altogether five issues, which

¶127

reads as under:-

¶128

(i) Whether the plaintiff has valid cause of action for filing this suit against defendant/respondent?

¶129

(ii) Whether the suit filed by the plaintiff is maintainable or not?

¶130

(iii) Whether the petitioner is entitled to a decree of divorce under Section 13(i-a) of the Hindu Marriage Act?

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(iv)Whether the plaintiff is entitled to a decree of divorce U/s 13 (1) (1-b) of Hindu Marriage Act on the ground of desertion?

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(v) Whether the plaintiff entitled for any other relief/reliefs?

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13. The learned Family Court has considered two primary issues i.e., the date of divorce and dissolution of marriage is to be granted under Section 13 (i-a) of the Hindu Marriage Act, 1955 (i.e issue No.3) and the element of desertion has also been taken as a ground under Section 13 (i-b) of the Hindu Marriage Act, 1955 (i.e, issue No.4).

¶136

14. Issue No.4 has been answered against the appellant-husband by recording the following findings as available at paragraph No.12 of the impugned judgment which reads as under:-

¶137

“ 12 . From a close scrutiny of the evidence adduced by the plaintiff it has become demonstrably clear that he has not seen his wife in compromising position with other person at any moment and he has also hopelessly failed to bring home the allegation that his wife has deserted him for a continuous period of not less than two years. Admittedly, there has been a long desertion between the petitioner and his wife/the respondent but the desertion has not been at the option of the respondent rather, the desertion was due to the act of the petitioner himself. A language of Section (i-b) of the Hindu Marriage Act clear speaks that when the other party have deserted the petitioner for a continuous period for not less than two years immediately preceeding the presentation of the petition, he would be entitled to get a decree of divorce. From the evidence, of the respondent it has transpired that the respondent/ the wife has been trying to lead a happy conjugal life with the petitioner, but he is willing to live with any other lady for the reasons best known to him, therefore, it cannot be believed at any stretch of imagination that the respondent deserted the petitioner for continuous period of not less than two years immediately preceding the presentation of the petition. The petitioner has also failed to bring home any of the condition in mentioned in the abovementioned case of Samar Ghosh and has also failed to prove that the respondent has behaved in a cruel manner with him. On the other hand the respondent has been able to prove that still she is willing to continue her married life. Accordingly, the issue No.I, II, III, IV & V are decided against the plaintiff and in favour of defendant and it is accordingly.”

¶138

15. It is evident from the said paragraph that the learned Family Judge has

¶139

not found the element of cruelty, rather, he has come out with specific finding that there has been along desertion between the appellant and the respondent, but the desertion has not been at the option of the respondent, rather, the desertion was due to the act of the appellant himself.

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16. It has also been referred therein in the aforesaid paragraph that on scrutiny of the evidences, it appears that the respondent-wife has been trying to lead a happy conjugal life with the petitioner, but he is willing to live with any other lady for the reasons best known to him. Therefore, it cannot be believed at any stretch of imagination that the respondent deserted the appellant for continuous period of not less than two years immediately preceding the presentation of the petition.

¶143

17. It further appears from paragraph No.12 as quoted herein above that the learned Family Judge has gone into the issue of adultery, since, specific reference has been made to the effect i.e., “from a close scrutiny of the evidence adduced by the plaintiff, it has come demonstrably clear that he has not seen his wife in compromising position with other person at any moment and he has also hopelessly failed to bring home the allegation”.

¶144

18. However, learned counsel appearing for the appellant, at this juncture, has submitted that no such ground of adultery has been taken by the appellanthusband in the plaint and it was orally submitted by him and therefore, observationwhich has been made in the impugned judgment pointing out on the issue of adultery is the error on the face of the order.

¶145

19. It further needs to refer herein that the issue No.4 has not been challenged by the appellant-husband, meaning thereby, whatever findings have been given on the issue of desertion against the appellant-husband of forcing the respondent-wife to leave the matrimonial home has been admitted. Since the same is not challenged before the higher Forum.

¶146

20. The issue No.3, which pertains to the issue of cruelty, has also been answered against the appellant-husband and being aggrieved with the same, the

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present appeal has been preferred by taking the ground as referred herein above.

¶150

21. The meaning of ‘cruelty’ has not been defined in the Act of 1955, rather, the word ‘cruelty’ has been interpreted by the Hon’ble Apex Court in catena of decision and some of the decisions are being referred herein.

¶151

22. It needs to refer herein that so far the allegation of cruelty is concerned, the ‘ 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.

¶152

23. 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.

¶153

24. 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.”

¶154

25. 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

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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.”

¶158

26. 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.

¶159

27. 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”.

¶160

28. 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 held to constitute “cruelty” itself.

¶161

29. 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

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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.

¶165

30. 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.

¶166

31. It is evident from the aforesaid decisions that day to day quarrel or normal wear and tear of marriage would not constitute mental cruelty as a ground for divorce, rather, cruelty is a word which can be sensed by taking into consideration the nature of cruelty in its entirety.

¶167

32. The husband and wife, from the day when the marriage has been solemnized are expected to live with dignity to each other as a husband and wife. However, if the husband is not allowing the wife to live in the matrimonial home, it will not amount to cruelty to be meted out by the husband towards the wife?

¶168

33. According to our considered view, cruelty since has got no straight jacket formula, rather, it is to be assessed by taking into consideration the entire behaviour either the husband or the wife, as the case may be, and if the expectation of the wife to live along with the husband in the matrimonial home is being betrayed by the husband by forcing the wife to depart from the

¶169

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matrimonial home, certainly the same will amount to cruelty said to be meted out by the husband towards the wife.

¶172

34. Exactly the same is the case herein since the divorce suit was filed on the ground of cruelty and desertion. Once the ground has been taken by the husband then it is the duty cast upon the husband to substantiate the grounds and if one of the grounds are not being substantiated, particularly, the ground of desertion as the case herein is, then certainly it cannot be said that it is the wife, who has subjected her husband meting out cruelty to him, rather, vice versa situation will be that the husband has subjected the wife to cruelty.

¶173

35. It further appears from paragraph No.12 of the impugned judgment that the reference of an evidence, although, the same has not been found to be substantiated i.e., the serious allegation upon the wife levelling the issue of character assassination of his wife, by saying that he had not seen his wife incompromising position with other person at any moment and he has also failed to bring the home the allegation.

¶174

36. The said finding, since, has not been questioned by the appellant, no such ground has been taken by making reference that the said finding is the error of record on the face of the order. The question which has been raised on behalf of the appellant that sole ground to establish the element of cruelty is the false accusation made against the husband and his family members by the wife which is sufficient to establish the element of cruelty. To buttress his argument, he has relied upon the judgment rendered by the Hon’ble Apex Court in the case of K. Srinivas (supra).

¶175

37. We all are conscious that the judgment passed by the Hon’ble Apex Court has a binding effect under Article 141 of the Constitution of India, is not to be made applicable universally rather its applicability is to be adjudged on

¶176

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the basis of surrounding facts available in individual case. Reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of in Dr. Subramanian Swamy v. State of Tamil Nadu and Ors., (2014) 5 SCC 75 , paragraph-47 of the said judgment is being reproduced hereinbelow :-

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"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."

¶180

38. Adverting to the factual aspect of the K. Srinivas (Supra), as would appear from paragraph No.2 thereof that the case was filed by the wife for dissolution of marriage on the ground of cruelty. The cruelty has been tried to be established on the basis of institution of a criminal case by the wife against the husband and his family members. The said criminal case finally resulted into acquittal by the higher Forum.

¶181

39. The Hon’ble Apex Court, in the aforesaid pretext, has observed in the said order by granting the dissolution of marriage that subsequent development of acquittal in criminal case is also to be taken into consideration for the purpose of dissolution of marriage, since, false accusation in consequence of acquittal in a criminal case will be said to be there.

¶182

40. We are conscious about the aforesaid position, as has been observed by the Hon’ble Apex Court in the said case, but the surrounding circumstances of the present case needs to be seen herein since it is not a case where the application was filed for dissolution of marriage only on the basis of cruelty, rather, the application was filed for dissolution of marriage also on the ground of desertion and cruelty.

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41. We have already observed herein above by making a reference of specific findings recorded by the learned Family Judge at paragraph No.12 of the impugned judgment that the element of desertion could not have been proved rather the husband subjected the wife to leave the matrimonial homeand to go out and as such as per the definition of ‘desertion’ as has been stipulated in the Act that all desertion will not come under the fold of the meaning of desertion, rather, the forceful eviction of the wife will be said to be desertion. If, either the wife or the husband, as the case may be, have forcefully been compelled to leave the home then such separation from the matrimonial home will not come under the fold of desertion.

¶186

42. It needs to refer herein that the word ‘desertion’ has been given in Explanation to Section 13 (1) of the Act 1955 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 wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”

¶187

43. 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.

¶188

44. 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:

¶189

“Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of

¶190

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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.”

¶193

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

¶194

“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.”

¶195

46. 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.

¶196

47. 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.

¶197

48. 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.

¶198

49. It is, thus, evident from the aforesaid reference of meaning of desertion

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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.

¶202

50. 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.

¶203

51. 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.

¶204

52. 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.

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53. The factual aspect of the present case is that the wife has been subjected to desertion, since, she was compelled to leave the matrimonial home. If the wife has been deserted then what will happen to the expectation of wife to lead the conjugal life along with the husband. Will it not be a breach of the expectation of the wife for which the marriage was solemnized? The second question would be that if the wife is not working and fully dependent upon the husband then how she will lead her life?

¶208

54. This Court, taking together these two aspects is of the view that if such situation is available as in the present case, then it will be a case of meting out cruelty by the husband upon the wife.

¶209

55. Further it is settled position of law that allegation of adultery itself amount to cruelty and if adultery has not been found to be established then the wife will be said to be subjected to element of cruelty by the husband. The Hon’ble Apex Court in the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, (2003) 6 SCC 334 has observed that the false allegation of adultery itself amount to cruelty, ready reference the relevant paragraph is being quoted as under:

¶210

7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by

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the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.

¶214

56. Further arguments which need to be considered herein is the conduct of the husband that too being an employee of CMPF, has allowed to leave his wife the official accommodation at Dhanbad and gone to Patna wherein he instituted a matrimonial case in the year 2007 being Matrimonial Case No. 438 of 2007. The respondent wife, after knowing about the same had filed transfer petition before the Hon’ble Apex Court, which resulted into transfer of the said matrimonial suit to the judgeship of Dhanbad. The Appellant husband had not started appearing in the said proceeding, in consequence thereof, the suit was dismissed for non-prosecution. No effort was made by the appellant husband for its restoration by filing a suit even if it would have taken the shape of a decree. The appellant has filed fresh suit in Patna being Matrimonial Divorce Suit No.391 of 2017 before the learned Principal Judge, Family Court, Patna. The wife has again rushed to the Hon’ble Apex Court for transferring the said suit. Thereafter, the suit was transferred to the Judgeship of Dhanbad being Original Suit No.908 of 2022, the issue involved in the impugned judgment. 57. We are of the view that the same is for the obvious reason that the appellant husband only to harass the wife had chosen not to file application for restoration rather he had chosen to file a fresh suit in the judgeship of Patna and again the respondent wife had to rush to the Hon’ble Apex Court for transferring of the subsequent suit which ultimately culminated into the impugned judgment.

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58. This Court considering the aforesaid conduct and based upon the discussions made herein above is of the view that the judgment rendered by the Hon’ble Apex Court in the case of K. Srinivas (supra) cannot be said to be applicable in the facts and circumstances of the present case.

¶218

59. This Court accordingly is of the view that learned Family Judge has not committed any error in the impugned judgment and therefore the impugned judgment requires no interference by this Court.

¶219

60. Accordingly, the instant appeal is dismissed.

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(Rajesh Kumar, J.)

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Jharkhand High Court 15th July 2025 A.Mohanty/Raja(A.F..R) Uploaded

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26 F.A No.85 of 2023

Binod Kumar Mishra v. Preeti Pandey Alias Preeti Mishra

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Binod Kumar Mishra v. Preeti Pandey Alias Preeti Mishra

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