Santosh Kumar Vs Kumari Arpana

2026:JHHC:8031-DB

IN THE HIGH COURT OF JHARKHAND AT RANCHI F.A. No. 245 of 2024

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Santosh Kumar, S/o Baidyanath Mandal, Aged about 35 years, R/o Mohalla-Rambag East of Kankari Temple, P.O. KSDSU (Lalbagh), P.S. L.N.M.U., District Darbhanga (Bihar).

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… … Appellant/petitioner

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Versus

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Kumari Arpana, W/o Santosh Kumar, Aged about 32 years, R/o Mohalla-Kamalkothi, Purandaha Road, P.O. B. Deoghar, P.S.-Town, District-Deoghar.

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… … Respondent/Respondent

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE SANJAY PRASAD

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------For the Appellant : Mr. Lukesh Kumar, Advocate : Mr. Praveen Shankar Prasad, Advocate : Mr. Namashyu Kejriwal, Advocate For the Respondent : Ms. Shivani Jaluka, Advocate ------

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Order No.06/Dated: 20.03.2026

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Per Sujit Narayan Prasad, J.:

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1. The instant appeal under Section 19(1) of the Family Court Act, 1984 is directed against the judgment dated 29.07.2024 and Decree dated 09.08.2024 passed by the learned Principal Judge, Family Court, Deoghar in Original Suit No.288 of 2022, whereby and whereunder, the petition filed under Section 13 of the Hindu Marriage Act, 1955 by the Petitioner (appellant herein) seeking a decree of divorce against his wife (respondent herein), has been dismissed.

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Factual Matrix

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2. The brief facts of the case leading to filing of the divorce petition by the appellant/ plaintiff needs to be referred

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herein as under:

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The petitioner was married with the respondent on 29.11.2017, at the Baba Basukinath Temple, Dumka, according to the Hindu rituals and rites without any dowry.

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The petitioner/appellant is a doctor and he does his private practice, whereas the respondent is a medical student of 4^th year. After marriage, the parties started to live together as husband and wife in the petitioner's residential house.

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It has been alleged that just after some days of marriage, the respondent started to live under the pressure of her brothers namely Sailesh Prasad Singh and Brajesh Prasad Singh and she used to give physical and mental torture to the petitioner. Both the aforesaid brothers of the respondent were interfering in the conjugal life of the petitioner and his wife and they were giving mental torture to the petitioner.

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The respondent was always acting at the instance of her said brother and she did not like the petitioner due to which the petitioner suffered a lot of mental pain and agony and spent his sleepless nights. It has further been stated that the respondent used to frequently flee away to her Naihar without asking the petitioner and his family members and ultimately on 20.02.2018, the respondent fled away from the petitioner's house without asking the petitioner or his family members.

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Thereafter, on 28.02.2018, the respondent got surgery of her uterus for about 20 cm in length at the instance of her brothers in the Gleneagles Hospital, Chennai without knowledge and consent of the petitioner, so that she may not conceive and deliver a baby.

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It has been alleged that both the aforesaid brothers of the respondent wants that the respondent should not conceive and deliver child and she can live far away from her husband, so that they can take all the earnings of the respondent from her practice and they had got the surgery of the respondent's uterus for the aforesaid purpose without knowledge and consent of the petitioner.

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Thereafter, on 04.07.2018, the respondent again came to the house of petitioner, whereafter the petitioner came to know about the surgery of the respondent.

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On 07.07.2018, the respondent again left the petitioner's house without asking him and his family members and further there was no cohabitation between the parties during the said period.

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It has been alleged that due to the aforesaid surgery of the respondent's uterus, there is no chance of new generation of petitioner from the wedlock of respondent and there is no issue from the wedlock of the parties. The petitioner is unable to live with the respondent due her

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aforesaid cruel act and further, lack of her love and affection towards the petitioner.

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It has been stated that the cause of action for this suit arose on 20.02.2018, when the respondent finally left the house of petitioner and it further arose on 28.02.2018, when the respondent got surgery of her uterus in the Glengagle Hospital, Chennai without knowledge and permission of the petitioner and further on 04.07.2018 and 07.07.2018 also.

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Thereafter, being aggrieved with the conduct of respondent-wife, the appellant-husband had preferred a suit in the Court of learned Principal Judge, Family Court, Darbhanga but subsequently, vide order dated 08.08.2022 of the Hon'ble Supreme Court of India, passed in Transfer Petition (Civil) No. 69/2020, with Transfer Petition (Criminal) No. 36/2020, this suit was transferred to the Court of learned Principal Judge, Family Court, Deoghar.

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3. Thereafter, effort for conciliation was taken but the same could not succeed and hence, the matter was fixed for filing written statement by the respondent.

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4. Thereafter, on 21.09.2023, the respondent had filed her written statement, stating therein that the instant suit has been brought by the petitioner on quite false and bogus allegations with an intention to save himself from the cruelty and torture done by him and his family members upon the

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respondent.

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It has further been stated that the petitioner and his family members had committed physical and mental cruelty upon the respondent and they were demanding a Car and Rs.9,00,000/- in cash from her and on non-fulfillment of their said demand, they assaulted and abused the respondent and committed cruelty upon her.

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It has been stated that the petitioner had his illicit relation with his own Bhabhi and when the said relation was opposed by the respondent, the petitioner and his Bhabhi became enemy of the respondent and threatened to commit her murder.

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It has further been stated that the respondent was doing her study of MBBS course in the Medical College at Janakpur, Nepal but the petitioner and his family members objected the same and told that they will not allow the respondent to continue her study and the respondent will have to live as a housewife in her matrimonial home.

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It has been stated that the petitioner is a Doctor and he did not like the respondent and wanted to solemnize his marriage with another girl of his choice.

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It has been alleged by the respondent that the petitioner had assaulted the respondent with fists and slaps and she was not allowed to take proper food and medicine. The petitioner and his Bhabhi Pratibha Rani had assaulted

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the respondent in her uterus due to which there was acute pain in her uterus. The respondent contacted with the Doctor of her Naihar family, whereupon she was advised to undergo a minor surgery of her uterus and accordingly, the said surgery was done in Chennai on 27.02.2018, and the Doctor opined that even after the said surgery, the respondent is fit for conceiving. But, in spite of that the petitioner and his family members started to say the respondent as Banjh, who cannot give birth of a child and the respondent was being subjected to cruelty and torture.

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She has stated in her written statement that on 07.07.2018, the petitioner and his family members closed the respondent in a room and assaulted her and they snatched away all the ornaments of respondent and ousted her from her matrimonial home on 08.07.2018.

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Thereafter, the brother of respondent made several attempts for keeping the respondent in her matrimonial home but the petitioner was not ready for it and he tried to solemnize his second marriage.

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It has further been alleged that the petitioner has solemnized his second marriage with another girl and he is living with her. The petitioner has neglected and deserted the respondent and the instant suit has been filed by him on quite false and concocted grounds only for the purpose of getting rid from the respondent by taking advantage of his own

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wrong.

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It has been stated that the respondent had never committed any cruelty towards the petitioner and she was always living with her husband peacefully and by giving him full honour and dignity. But actually, the petitioner and his family members were demanding dowry and they were subjecting the respondent with cruelty for its fulfillment and he does not like the respondent.

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The respondent was ousted from her matrimonial home by the petitioner for fulfillment of his demand of dowry, for which the respondent has already filed a Complaint Case under Section 498A of the Indian Penal Code against the petitioner which is still pending in the Court of learned C.J.M., Deoghar.

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Further, the respondent had filed a Maintenance Case No. 182/2019, also which was disposed off on 05.07.2023 and the appellant herein has been ordered to pay maintenance to the respondent @ Rs. 20,000/- per month but even thereafter, the petitioner has not paid any maintenance to the respondent and he has brought the instant suit on quite false and concocted grounds which is liable to be dismissed. On the aforesaid grounds, the respondent has prayed to dismiss the suit with cost.

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5. Based upon the pleading, the learned Family Court altogether has framed five issues which are as follows:

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“(i) Whether the suit as framed is maintainable for the reliefs claimed?

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(ii) Whether the petitioner has a valid cause of action to bring this suit?

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(iii) Whether the respondent has subjected the petitioner with cruelty?

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(iv) Whether the respondent has deserted the petitioner since 07.07.2018?

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(v) Whether the petitioner is entitled to get the reliefs claimed or any other reliefs?”

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6. The suit has been filed on the ground of cruelty and desertion but the issues could not be proved and accordingly, the prayer for dissolution of marriage has been dismissed by the learned Family Court which is the subject matter of the present appeal.

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Submissions advanced by the learned counsel appearing for the appellant:

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7. Learned counsel appearing for the appellanthusband has taken the following ground in support of his case: -

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(i) Learned counsel has submitted that the Learned Family Court has failed to appreciate that the appellant has produced credible evidence which are sufficient to establish his case and the appellant is entitled for grant of decree of divorce on ground of cruelty and desertion.

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(ii) Further, it has been submitted that the findings recorded by the learned Trial Court while answering

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issue no.(iii) cruelty and (iv) desertion are perverse and based on mere presumption, therefore, the same will not stand in the eye of law.

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(iii) It has been contended that the learned Family Court has failed to take into consideration the material facts while passing the impugned Judgment and has committed a grave error of law and fact.

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(iv) It has been submitted that the learned Family Court has committed a grave error of law and fact in passing the impugned Judgment as the entire proceeding has been proceeded without admitting the evidences on record.

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(v) He has submitted that the learned Family Judge has committed a grave error as the learned court has not taken into consideration that the parties are not residing together for the last more than seven and a half years and there is no scope of resettlement between the parties.

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(vi) The learned Family Court has failed to take into consideration that during the deposition the petitioner has categorically stated that the defendant has been doing cruel behavior with him and with the entire family members of the plaintiff. The defendant used to quarrel, abuse and threatened the plaintiff family members.

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(vii) The learned Family Court has failed to take into consideration that the present case is not merely a

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family dispute or it is a dispute between the husband and wife rather the defendant has been treating entire family members of the plaintiff with cruelty. This is not a just family dispute rather this is a criminality on the part of the defendant.

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(viii) The learned Family Court has committed a grave error of law and fact in passing the impugned Judgment as the witnesses have supported the case of the appellant but the same has not been taken into consideration by the learned Family Court.

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(ix) The learned Family Court has also failed to take into consideration while passing the impugned Judgment that the appellant and respondent are not living together for the last more than seven and a half years and the efforts of mediation such as personal meetings, Panchayati were made but all went in vain and the respondent is adamant not to restore matrimonial life with the appellant.

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(x) The learned Family Court has failed to take into consideration while passing the impugned Judgment that the respondent intentionally did not want to come with the appellant and this shows that she is also ready and willing to take divorce from the appellant as she is residing in her Maike since the year 2018 itself and this aspect of the matter has not been taken note by the

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learned court below.

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(xi) It has been contended that the learned Family Court has failed to take into consideration while passing the impugned Judgment that the respondent without any problem or cause on the part of the appellant left the house of the appellant with her own and went to her parent's house and she is residing there. Further it has been tried the level best by the appellant to bring her back to his house and maintain the peace of his family. But she is so adamant and kept continued her cruel behavior towards appellant and his family members.

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(xii) Learned counsel has submitted that the learned Family Judge has failed to take into consideration while passing the impugned Judgment that from the pleading itself it is quite clear that there is no scope that the parties to the present case could stay together as they both are living separately since the year 2018 itself and hence no fruitful reason will be there for not allowing the divorce to the parties.

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(xiii) Learned counsel for the appellant has submitted that the respondent had filed Bail Cancelation against the bail order dated 27.01.2023 of the appellant being Cr.M.P. 407/2023 and in the said Cr.M.P. the respondent has filed supplementary affidavit and stated that she does not want to stay with the appellant and there after her

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petition for bail cancelation was dismissed.

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(xiv) Learned counsel has submitted that the sister of the respondent namely Ila Kumari @ Ila Sinha has also filed Cr. Misc. Case No. 142/2014 under section 125 of Cr.P.C. for maintenance against her husband namely Rajiv Nandan Singh @ Bipin Bihari Singh and the said maintenance case was allowed and it was directed to Rs 17,500/- to the wife and Rs 7000/- to the three daughters, further it is also stated that respondents brother namely Brajesh Prasad Singh has also filed Divorce Petition u/s 13 of Hindu Marriage Act being O.M. No. 04/2018 and in the said case there marriage was dissolved and Divorce was granted hence it is stated that the whole family of the respondent is of the same mentality they just want to harass their spouses and want to extract money.

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(xv) The learned Family Judge has failed to take into consideration while passing the impugned Judgment that no medical report of the said uterus surgery has been brought on record by the respondent that for what reason the said surgery has been done, the said surgery has been done in the year 2018 but no document has been submitted with regard only a prescription has been filed and the said prescription is of 3 months after the surgery that is also a follow-up prescription and not a

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detailed medical report.

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(xvi) Learned counsel has submitted that before passing of the said judgment the learned family court quarried about medical report to the respondent thereafter the respondent had brought on record the ultrasound report of 2024 which appears to be fake as the said ultrasound has been referred by her own brother namely S.P. Singh.

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(xvii) It has been submitted that the learned Family Court has failed to take into consideration while passing the impugned Judgment that in the Complaint case No. 312/2019 filed by the respondent under section 12 of the Domestic Violence Act, 2005 against the petitioner and Pratibha Rani (wife of petitioner's elder brother) where in the petition at page no. 4, para 1.3 respondent has stated that she had went to Chennai to undergo medical treatment and surgery to remove internal fibroids (benign tumors) from her uterus at Gleneagles Global Health City, Chennai but it is pertinent to mention that the respondent earlier also filed another complaint case being Complaint case No. 876/2018 filed u/s 498 A of I.P.C. and u/s 3 and 4 of D.P. Act 1961 implicating the entire family of the petitioner, where in the petition at page no. 6, para 12 the respondent has stated that petitioner and Gotni Pratibha Rani had assaulted the respondent near her uterus and acute

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pain started in her abdomen and for the said reason she had to undergo surgery of her uterus, hence it is clear that both the statements are contradictory as in the complaint case No.312/2019 respondent had nowhere stated that the petitioner has assaulted her in her genital part and in the Complaint Case No.876/2018 she has alleged that petitioner has assaulted her in her genital part and due to which she has to undergo her uterus surgery, which is totally a concocted story just to harass the petitioner/appellant.

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(xviii) It has been submitted that the learned Family Judge has failed to take into consideration that as it is alleged by the respondent that she has been assaulted by the appellant in here genital part of the body and for the said reason she has went to Chennai for her uterus surgery but when asked she has stated in her cross examination that she has not lodged any case against the appellant in this regard which shows the ulterior motive of the respondent that she only want to harass the appellant.

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

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(xx) Learned counsel for the appellant has submitted that the specific pleadings of the plaintiff/ appellant to the effect that the respondent wife has eloped with another person on 30.04.2021 even though the aforesaid fact has not been properly appreciated by the learned Family Court.

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(xxi) The learned court further failed to take note of the fact that the relationship between the parties had deteriorated to such an extent that it has become impossible for appellant to live with the respondent wife but the same has not been properly taken into consideration by the learned Family Court.

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(xxii) Learned counsel for the appellant has submitted that such categorical statements on the part of different PWs clearly proves factum of cruelty.

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8. 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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Submissions advanced by the learned counsel appearing for the respondent:

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9. Learned counsel for the respondent-wife, defending the impugned order, has taken the following grounds: -

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(i) It has been submitted that the appellant has sought divorce on the ground that the behaviour of respondentwife towards the appellant and his family members is

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torturous and, therefore, the appellant cannot reasonably be expected to live with the respondent but the learned Family Court, after taking into consideration the evidence, has held that the appellant-husband has not succeeded to prove and establish the ground of cruelty and has rightly dismissed the suit.

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(ii) It has been contended that allegation against respondent as to her illicit relation is also based on mere suspicion of the appellant because except the generalized statement made about illicit relation of respondent/wife, the appellant has not alleged/claimed that he has ever seen any specific incident of the adulterous/sexual act, therefore the finding of learned Family court is absolutely correct based upon the evidences led by the appellant/husband.

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(iii) Learned counsel for the respondent has further submitted that learned trial 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 miserably failed to prove his case even to the extent of preponderance of probabilities.

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(iv) Learned counsel has submitted that the respondent had never subjected the petitioner with cruelty nor she had ever quarreled with him and the respondent had never left her matrimonial home without permission of her

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husband and she was always ready to lead a peaceful and proper conjugal life with the petitioner with full love and affection and proper dignity. But the petitioner and his family members were regularly subjecting the respondent to cruelty for fulfillment of their illegal demand of dowry and they were abusing and assaulting her also for which the respondent had already filed a Complaint Case against the appellant/petitioner.

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(v) Learned counsel for the respondent has submitted that the appellant/petitioner and his family members were not ready to allow the respondent to continue her study of MBBS and they were pressurizing her to discontinue her study and live in their house as a house wife.

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(vi) It has further been argued that the respondent has illicit relation with his Bhabhi and he is interested in another girl also, for which he is trying to get rid from the respondent and the entire allegations made by the petitioner in his petition is totally false and concocted, as such, the petitioner's petition has no merit and the same is liable to be dismissed

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10. 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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11. We have heard the learned counsels appearing for the parties, gone through the Trial Court Records, as also the impugned judgment, the testimonies of the witnesses and the documents exhibited therein.

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12. This Court, before looking into the legality and propriety of the impugned order, requires to refer the testimonies of the witnesses, as available on record.

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13. The appellant, in support of his case, has adduced four witnesses including himself. The relevant portion of the testimonies of the witnesses are mentioned as under:-

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P.W.1 Santosh Kumar , the appellant himself, has stated in his examination-in-chief that he is a Doctor and his wife is also a MBBS doctor. After marriage, his wife was denying to make physical relation with him and she was saying that she has a boyfriend due to which he is suffering from mental stress.

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He has further stated that his wife had refused to live with his parents and she was pressurizing him to take her in a separate rented accommodation by giving threatening of assault by her boyfriend. His wife was not cooking food due to which he had to cook food by himself and his wife was pressurizing him to bring food from restaurant every day. She used to assault his father and mother by Sandal and used to tear clothes also. She has no love for him and she was torturing him mentally at the instigation of her

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brothers. She was pressurizing him to transfer his all earnings in her account and settle in Deoghar. His wife used to go to her Naihar frequently without his permission.

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He has further stated that on 20.02.2018, the respondent had left his house without his permission and subsequently on 28.02.2018, she got surgery of her uterus at the instigation of her brother, so that she may not give birth of a child. On 04.07.2018, his wife again came to his house and thereafter, he came to know about her operation. But, again on 07.07.2018, the respondent left his house without intimating anyone and she did not make any relation with him during the said period.

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He has stated that his wife has ended all the possibilities of his next generation by getting her uterus operated and it has become impossible to lead his conjugal life with the respondent due to her aforesaid torturous act.

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Further, in his cross-examination this witness has stated that he did not file any case in any police station or Court regarding the incident of assault by his wife.

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He has no knowledge as to whether his wife has completed her MBBS course or not. She had got her admission in MBBS course in the year of 2012 and hence, he is saying that she is a MBBS doctor. His wife has lodged a case against him and his family members on the ground of her torture and they have got bail in that case. He had

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given Rs. 2,00,000/- in cash to his wife for doing the course of her MBBS but he does not have any fee-receipt. After marriage, his wife was doing MBBS course and she was living in Janakpur and her Maikay during the said period. After marriage, his wife lived only for two months in his house. He had got an insurance in the joint name (he and his wife) of and he is still paying premium of the said insurance. He does not want to keep my wife with him. He has stated that he did not bear the expense of the surgery of uterus of my wife because he had no knowledge about it. He has also stated that he had refused to keep his wife with him in mediation which was conducted in course of hearing of my Anticipatory Bail petition.

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He has further stated that he has not given any expense to his wife since 2018. He has not paid the maintenance, awarded to his wife in the maintenance case, because he has challenged the said order before the Hon'ble Court.

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Further, he has denied the suggestion that he had assaulted in abdomen and uterus of his wife due to which she had to undergo surgery of her uterus.

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P.W.2 Anurodh Kumar (brother of the appellant).

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He has stated in his examination-in-chief that after marriage, the respondent had come to his house and started to live with the petitioner as husband-wife. The

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respondent was saying that she will not live with her inlaws and she was pressurizing the petitioner to keep her in a separate rented house. She was saying that she has a boyfriend and she was refusing to make physical relation with the petitioner due to which he had to suffer from mental agony. The respondent was not cooking food in her house and she was pressurizing the petitioner to order food from restaurant every day.

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He has stated that the respondent used to assault the petitioner and his parents by Sandal and tear their clothes and she was saying him to transfer his entire earnings in her account and settle in Deoghar. She used to leave her matrimonial home frequently without informing about it to any one at the instigation of her brother. The respondent has got her Uterus operated, so that she cannot deliver a baby. The respondent has lost her love affair with the petitioner due to her cruel act and hence, it is impossible for the petitioner to live with her. The petitioner had filed this case for divorce on 17.12.2018 and thereafter the respondent had lodged a case under the Provisions of the Domestic Violence Act on 26.03.2019 and further on 10.07.2019 she has lodged a false case against his brother under Section 498A of the Indian Penal Code also. The respondent is torturing his brother and family members by filing false cases.

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Further, in his cross-examination this witness has said that he lives separate from his brother (petitioner). The petitioner has his own Clinic. He lives separate in his Village along with his wife. He was living separately from the petitioner even at the time of his marriage also. his brother and mother had told his about the surgery of the respondent's Uterus. They had tried to pacify the differences between the respondent and petitioner and wanted to call Panchayati also but the respondent's brother did not allow them to call Panchayati. His brother had not filed any case for restitution of conjugal rights. They did not make any video of the incident of assaulting by the respondent to her husband nor the petitioner had got his treatment any time due to assault by the respondent. He is a Contractor. They did not take the respondent to any Doctor for knowing as to whether she is able to deliver a child or not. He has further said that even if it comes in medical report that the respondent is able to deliver a child, the petitioner shall not keep her with him. Further, he has denied from this suggestion that the petitioner has illicit relation with another girl.

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P.W.3 Sundar Kumar has stated in his examination-

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in-chief that after coming to her matrimonial home, the respondent started to pressurize the petitioner from the very first day to live separate from her in-laws in a rented

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house. The respondent was not allowing the petitioner to make physical relation with her and she was always threatening him to get assaulted by her brothers due to which the petitioner was living in mental stress.

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The respondent's brothers were always threatening the petitioner for which an informatory petition No. 744/2018, dated 05.07.2018, was given in the Court of Learned Chief Judicial Magistrate, Darbhanga. Further, an information was given in the Court of S.D.M., Darbhanga also on 06.07.2018. The respondent was assaulting the petitioner and his parents with Sandal and she used to tear their clothes and thereby give mental and physical torture to them. She was not cooking food in her matrimonial home. After filing of this case for divorce by the petitioner, the respondent has given a false petition under the provisions of Domestic Violence Act, with an intention to harass the petitioner and further she has got her uterus operated without information and consent of petitioner, so that she may not give birth of a child. The respondent has filed a false case under Section 498A of the Indian Penal Code against the petitioner and she was blackmailing the petitioner by creating a duplicate face book account, for which the petitioner had given a petition in Cyber Crime vide Registration No. 13499, dated 17.07.2019. The respondent was always pressurizing her

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husband to hand over his entire earnings in her account and she has deserted the petitioner since last five years. The respondent used to leave her matrimonial home without saying about it to anyone and she had left her matrimonial home at the instigation of her brother. After surgery of her uterus, the respondent came to the petitioner's house on 04.07.2018, whereafter, the petitioner and his family members could come to know about her surgery. Thereafter, on 07.07.2018, the respondent again left her matrimonial home. The petitioner has become puzzled due to cruel act of the respondent and it is impossible for him to live with her.

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Further, in his cross-examination this witness has said that he has not seen the respondent's certificate of MBBS. The petitioner was saying him only about the incidents of quarrel between a husband and wife. The petitioner has not remarried but he does not want to keep the respondent. The petitioner has not given any maintenance to his wife since the filing of case by her on the ground of her torture for demand of dowry. Today he has been brought by the petitioner's brother. Further, he has denied from this suggestion that the petitioner had ousted the respondent from his house for fulfillment of his demand of dowry and he has filed this case for divorce on the false allegations.

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P.W.4 Raj Kumar has stated in his examination-in-

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chief that the petitioner happens to be his maternal uncle. The petitioner was living in depression since just after two days of marriage and when he asked about its reason, the petitioner told him that he is not getting pleasure of wife. His maternal aunt (respondent) was not cooking food and she used to assault his maternal grandfather and maternal grandmother. He had seen that the respondent was talking with her brothers for hours and thereafter, she used to become angry and demand huge amount from the petitioner for which there were repeated incidents of quarrel between the petitioner and the respondent.

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His maternal uncle had told him that the respondent cannot conceive. The respondent had lived in the petitioner's house for altogether two months and ten days but she did not conceive during the said period. In the night of 19.02.2018, he had seen that the respondent had packed her entire belongings and ornaments and thereafter on 20.02.2018, she went to her Naihar along with her brother without disclosing about it to the petitioner and his parents.

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He came to know from his maternal uncle (petitioner) that the respondent has got her uterus operated and she is unable to give birth of a baby. The respondent had come to her matrimonial home again on 04.07.2018 and there

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was severe quarrel between the petitioner and the respondent during that period and ultimately on 07.07.2018, the respondent again left her matrimonial home without saying to the petitioner. The respondent has told the petitioner to solemnize his second marriage and he has its recording also and its pen drive has been filed in this case. The respondent did not come to live with the petitioner in spite of his repeated requests due to which the petitioner had to file this case for divorce.

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He has further stated that he has filed some medical reports and MRI report of the uterus of the respondent which goes to show that the right Fallopian tube of the uterus of the respondent has permanently blocked and there is a tumor of big size in her uterus also.

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Further, in his cross-examination this witness has stated that he has no source of income. The petitioner runs a private clinic in Bohari, District- Darbhanga. Earlier the petitioner was a Government doctor, but due to the litigation with his wife, he has left his job. The petitioner does not want to keep his wife with him. He has no knowledge that prior to filing of this case for divorce by the petitioner, his wife had already filed a case on the ground of her torture for dowry. He did not suggest petitioner to keep the respondent with him. He does not know the meaning of "Pelvis" and his maternal uncle has told him

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about it. His affidavit was got prepared by his maternal uncle (petitioner) in his house and the medical terms have been mentioned in it on the saying of his maternal uncle. He cannot say about the size of tumor. Further, he has denied from this suggestion that the petitioner and his family members were torturing the respondent for fulfillment of their demand of dowry and they had ousted her from their house after assaulting her. Further, he has denied from this suggestion that the instant case has been filed by the petitioner for saving his skin from the case filed by the respondent against him on the ground of her torture for demand of dowry.

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14. The respondent-wife has examined herself as D.W.1 and no other witness has been examined on her behalf in support of her case. The statement of the respondent D.W.-1 is being referred herein :-

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D.W.1 Kumari Arpana is the response-dent herself. She

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has stated in her examination-in-chief that the instant case has been filed by her husband with false allegations and all the assertions made by him in his petition are false and concocted.

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She has stated that her father and brothers had given Rs. 25,00,000 to 30,00,000 to her husband and his family members at the time of marriage. After marriage, she had gone to her matrimonial home and started to live there

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with her husband and in-laws. But, her husband and his family members started to torture her mentally and they were demanding Rs. 9,00,000/- in cash and a Car from her as dowry and they were taunting for inadequate dowry. She has stated that her husband was always abusing her and he was subjecting her to mental and physical torture. Her in-laws were also torturing her both mentally and physically and they were instigating her to commit suicide. After some time, she came to know and had herself seen also that her husband has illicit relation with his Bhabhi and his other family members were also aware about it. She protested the said relation of her husband, but none of the family members supported her and they were harassing her even on petty matters and threatening to kill her.

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She has stated that her husband and his elder brothers were against her study and they wanted to discontinue her study. The people of her Naihar persuaded her husband and his family members but in spite of that, they were adamant on their demand of dowry and they continued their torture. Her husband used to assault her by Belt and her mother-in-law and Gotni were also assaulting her with fists and Broom. Her husband and Gotni had assaulted her near her private part, due to which she felt too much pain and on consulting with

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doctor, it was told by the doctor that there was scar in her uterus for which a minor surgery is required. Her husband and his family members were not ready for her surgery whereafter, her brothers spent about Rs. 2-3 lakh in her surgery. On 07.07.2018, her husband confined her in a room and brutally assaulted her with the help of his family members. The petitioner and his family members had conspired to kill her and they had poured Kirosene Oil on her body and tried to set her ablaze but on raising hulla the people of nearby came and her life could be saved. Thereafter, on 08.07.2018 her husband and his family members ousted her from their house after assaulting her and snatching away her ornaments and articles. The people of her Naihar had tried to settle the matter and keep her in the matrimonial home and on 08.07.2019, they had called a Panchayati also and the people of her matrimonial home had come to Deoghar but they flatly refused to keep her with them without fulfillment of their demand of Honda City Car and cash Rs. 9,00,000/-. They were saying her to produce certificate regarding my capability of giving birth of a child and my husband threatened to remarry. Thereafter, she filed a case in the Court of learned Chief Judicial Magistrate, Deoghar vide the Complaint Case No. 876/2019, on the ground of torture for demand of dowry, which is still pending.

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She has stated that her husband has himself subjected her to cruelty and his family members have also tortured her both mentally and physically and the instant case has been brought by them only for the purpose of saving their skin from their misdeeds.

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Her husband has solemnized his second marriage and presently he is living with his second wife. This witness has further stated that all the allegations made by the petitioner against her are false and baseless and the instant suit of divorce is liable to be dismissed. She is living with her old parents and She has no source of income but in spite of that her husband has not given any maintenance to her in spite of this fact that an order has been passed against him in the case filed for getting maintenance.

¶195

Further, in her cross-examination this witness has stated that her parents had told that the marriage will be solemnized in the Temple of Baba Basukinath, hence our marriage was solemnized from there. She had taken admission in the MBBS course in the year of 2012, in Janki Medical College, Janakpur, Nepal. She is not suffering from any disease. Her father has retired from the post of the Soil Conservation Officer, whereas her one brother is an Engineer and another is a doctor. Brajesh Kumar is her brother and he has got divorce from his wife.

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Her husband had filed this case in the Court of Darbhanga before filing of the case by her on the ground of torture for demand of dowry. After the incident of assault by her husband and his family members, she had got her treatment from her brother and thereafter in Chennai also. Her surgery was done in the Gleanegal Global, hospital by Dr. Mira Ragho. She had stayed there only for one day. Further, she has denied from this suggestion that she has got her tubectomy without consent of her husband and further she does not want to deliver child. She has further denied from this suggestion that she had never allowed her husband to make physical relation with her and she was assaulting him with shoes and slippers. She has further denied from this suggestion that her husband has not solemnized his second marriage.

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15. Besides oral evidence, documentary evidences were also adduced, which were marked as exhibits. 16. The learned Principal Judge, from the statements of the witnesses so produced on behalf of the parties, has come to the conclusion that plaintiff/petitioner has miserably failed to prove the grounds of alleged cruelty and desertion pleaded by him in his petition.

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17. The appellant has claimed that the respondent was subjecting him with cruelty and she was always threatening the appellant to get him assaulted by her boyfriends and

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further, she used to assault the appellant and his parents also. But, in his entire evidence the appellant has not disclosed any such specific incident from which it can be even remotely inferred that the conduct of the respondent was so cruel that it has become impossible for the appellant to live with her. All the assertions made by the appellant are quite general in nature and the appellant (P.W.1) has himself admitted in para-19 of his cross-examination that he had not lodged any case in any police station or Court regarding the alleged incident of assault by his wife to him.

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18. From the testimony so recorded of the appellanthusband, the learned Principal Judge, Family Court has come to the conclusion that in the instant case, except the vague and omnibus allegations made by husband against his respondent-wife, no cogent convincing, clinching evidence, no concrete documentary evidence has been led to substantiate the charges of cruelty and desertion. The onus to prove the grounds taken for divorce squarely rests on the husband which are required to be discharged by leading a cogent, tangible and reliable evidence.

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19. The learned Family Judge has gone into the interpretation of the word “cruelty” and “desertion” and assessing the same from the material available on record as also the submission made in the pleading, has found that the element of cruelty and desertion has not been established.

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The said finding of the learned Family Court has been assailed herein by way of filing the instant appeal.

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20. Herein since appellate jurisdiction has been invoked therefore, before entering into merit of the case, at this juncture it would be purposeful to discuss the appellate jurisdiction of the High Court.

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It needs to refer herein that under section 7 of the Family Courts Act, the Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any Subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature which are described in the explanation to section 7(1).

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21. Sub-section (1) to section 19 of the Family Courts Act provides that an appeal shall lie from every judgment or order not being an interlocutory order of a Family Court to the High Court “both on facts and on law”. Therefore, section 19 of the Family Courts Act is parallel to section 96 of the Code of Civil Procedure, the scope of which has been dealt with by the Hon'ble Apex Court in series of judgments.

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22. The law is well settled that the High Court in a First Appeal can examine every question of law and fact which arises in the facts of the case and has powers to affirm, reverse or modify the judgment under question. In “Jagdish Singh v. Madhuri Devi” (2008) 10 SCC 497 the Hon'ble Supreme

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Court observed that it is lawful for the High Court acting as

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the First Appellate Court to enter into not only questions of law but questions of fact as well and the appellate Court therefore can reappraise, reappreciate and review the entire evidence and can come to its own conclusion. For ready reference the relevant paragraph of the said judgment is being quoted as under:

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25. It is no doubt true that the High Court was exercising power as the first appellate court and hence it was open to the Court to enter into not only questions of law but questions of fact as well. It is settled law that an appeal is a continuation of suit. An appeal thus is a rehearing of the main matter and the appellate court can reappraise, reappreciate and review the entire evidence—oral as well as documentary—and can come to its own conclusion.

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23. Further, it requires to refer herein that under section 3 of the Indian Evidence Act a fact is said to be proved when the Court either believes it to exist or considers its existence so probable that a prudent man under the circumstances would proceed on the supposition that such fact really exists. Therefore, the normal rule of preponderance of probability is the rule which governs the civil proceedings but herein since grave allegation of extra-marital affair has been alleged therefore cogent evidence is required to be laid by the plaintiff/appellant.

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24. The expression “preponderance of probability” is not capable of exact definition nor can there be any strait-jacket

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formula or a weighing machine to find out which side the balance is tilted. The preponderance of probability would imply a positive element about possibility of existence of a fact. This means a higher degree of probability of happening of something and existence of a fact.

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25. In “ A. Jayachandra v. Aneel Kaur” (2005) 2 SCC 22 the Hon'ble Apex Court has observed that the concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, the Court has to see what are the probabilities in the case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse caused by the acts or omissions of the other.

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26. Since this Court are exercising the power of appeal as referred hereinabove and as per the settled position of law which require the consideration of the appellate Court is that the order/judgment passed by the appropriate Forum, if suffers from perversity, the same is to be taken as a ground for its reversal.

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27. It needs to refer herein that the interpretation of the word “perverse” as has been interpreted by the Hon'ble Apex Court which means that there is no evidence or erroneous consideration of the evidence. The Hon'ble Apex Court in

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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 so outrageously defies logic as so 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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25. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [AIR 1966 Cal 31] the Court observed that “perverse finding” means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341] the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.

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26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the Court observed that any order made in

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

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

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

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2. Longman Dictionary of Contemporary English, International Edn.

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

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3. The New Oxford Dictionary of English, 1998 Edn. 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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4. The New Lexicon Webster's Dictionary of the English Language (Deluxe Encyclopedic Edn.)

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

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5. 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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28. 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.

¶248

29. In the backdrop of the aforesaid settled position of law this Court is now adverting to examine that whether the prayer of the appellant for dissolution of marriage is fit to be allowed on the ground of cruelty and desertion alleged to be committed by the respondent wife.

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Issue of cruelty

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

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31. This Court deems it fit and proper to take into consideration the meaning of ‘cruelty’ as has been held by the Hon’ble Apex Court in Shobha Rani v. Madhukar Reddi, (1988)1 SCC 105 wherein the wife alleged that the husband

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and his parents demanded dowry. The Hon’ble Apex Court emphasized that “cruelty” can have no fixed definition.

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

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33. The Hon’ble Apex Court has further observed therein that while dealing with such complaints of cruelty it is important for the court to not search for a standard in life, since cruelty in one case may not be cruelty in another case. What must be considered include the kind of life the parties are used to, “their economic and social conditions”, and the “culture and human values to which they attach importance.” 34. 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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35. In V. Bhagat vs. D. Bhagat (Mrs.), (1994)1 SCC

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337 , the wife alleged in her written statement that her

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husband was suffering from “mental problems and paranoid disorder”. The wife’s lawyer also levelled allegations of “lunacy” and “insanity” against the husband and his family while he was conducting a cross-examination. The Hon’ble Apex Court held these allegations against the husband to constitute “cruelty”.

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36. In Vijaykumar 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.

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37. 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

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ground for divorce.

¶267

38. Further in the case of Vishwanath Agrawal v. Sarla Vishwanath Agrawal , (2012) 7 SCC 288, the Hon’ble

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Apex Court has held as follows:—

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22. The expression “cruelty” has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status.

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26.After so stating, this Court observed in Shobha Rani case about the marked change in life in modern times and the sea change in matrimonial duties and responsibilities. It has been observed that : (SCC p. 108, para 5)

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“5. … when a spouse makes a complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance.”

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27.Their Lordships in Shobha Rani case referred to the observations made in Sheldon v. Sheldon wherein Lord Denning stated, “the categories of cruelty are not closed”. Thereafter, the Bench proceeded to state thus: (Shobha Rani case, SCC p. 109, paras 5-6)

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“5. … Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.

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6. These preliminary observations are intended to emphasise that the court in matrimonial cases is not

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concerned with ideals in family life. The court has only to understand the spouses concerned as nature made them, and consider their particular grievance. As Lord Reid observed in Gollins v. Gollins : (All ER p. 972 G- H)

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‘… In matrimonial affairs we are not dealing with objective standards, it is not a matrimonial offence to fall below the standard of the reasonable man (or the reasonable woman). We are dealing with this man or this woman.’”

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39. In the case of Samar Ghosh v. Jaya Ghosh, (2007)

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4 SCC 511 it has been held by the Hon’ble Apex Court as

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follows: —

¶282

99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.

¶283

100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.

¶284

40. Thus, from the aforesaid settled position of law it is evident that “Cruelty” under matrimonial law consists of

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conduct so grave and weighty as to lead one to the conclusion that one of the spouses cannot reasonably be expected to live with the other spouse. It must be more serious than the ordinary wear and tear of married life.

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41. Cruelty must be of such a type which will satisfy the conscience of the Court that the relationship between the parties has deteriorated to such an extent that it has become impossible for them to live together without mental agony. The cruelty practiced may be in many forms and it must be productive of an apprehension in the mind of the other spouse that it is dangerous to live with the erring party. Simple trivialities which can truly be described as a reasonable wear and tear of married life cannot amount to cruelty. In many marriages each party can, if it so wills, discover many a cause for complaint but such grievances arise mostly from temperamental disharmony. Such disharmony or incompatibility is not cruelty and will not furnish a cause for the dissolution of marriage.

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42. Herein allegations of cruelty have been specifically made by plaintiff/appellant wherein it has been stated that the differences arose between him and respondent (wife) due to misconduct and misdeed of the respondent as respondent used to flee from appellant’s house without informing the appellant or his family members.

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43. From the record it appears that both parties are

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highly educated and they are medical practitioners by profession. The appellant has claimed that the respondent was subjecting him with cruelty. But, in his entire evidence the appellant has not disclosed any such specific incident from which it can be even remotely inferred that the conduct of the respondent was so cruel that it has become impossible for the appellant to live with her.

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44. However, in the instant case whatever assertions have been made by the appellant against the respondent are quite non-specific and of quite omnibus nature and further, the appellant has not been able to prove the same. Of course, the appellant has filed a bunch of papers for showing that he had given an information petition to the Court of the learned S.D, M, Darbhanga on 06.07.2018 (Ext.5) and further to the Court of learned C.J.M on 18.02.2019 (Ext.4) but even in these petitions the appellant has not asserted any such act which can be said to be so grave as to enable the appellant for seeking a decree of divorce on the said ground. Further, none of these documents goes to show that the respondent had committed such cruelty upon the appellant which has made it impossible for the petitioner to live with the respondent.

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45. As regards the filing of a case by the respondent on the ground of her torture of demand of dowry is concerned, mere seeking a legal remedy by the wife against her husband can't be termed as cruelty unless it is proved that the said

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proceeding was launched maliciously without any reality. The appellant has further tried to bring on record by filing documentary evidence that the other family members of the respondent had also fought some cases against their spouse. But keeping in view the facts and circumstances of this case, this Court finds that the conduct of respondent can't be decided by the act or history of someone else.

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46. Thus, on the basis of the pleading and evidence on the record, this Court is of the view that the ground of cruelty has not been substantiated by the appellant and further it has also not been proved that the extent of cruelty is so much that it appears absolutely not possible and safe for the petitioner-husband to live together with respondent-wife and continue with their married life.

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47. Thus, on the basis of the discussion made hereinabove this Court is of the view that the appellant has failed to substantiate the commission of alleged cruelty of respondent upon him and since the learned Family Court while negating the claim of cruelty has duly appreciated the evidences brought on record, therefore the finding of the learned Court on the alleged act of cruelty, is not perverse.

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Issue of desertion

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48. So far desertion is concerned 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

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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.”

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

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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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51. 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.”

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52. 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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53. 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.

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

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55. It is, thus, evident from the aforesaid reference of

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meaning of desertion that the quality of permanence is one of the essential elements which differentiate desertion from willful 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.

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56. 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.

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57. The Hon'ble Apex Court in Debananda Tamuli vs. Kakumoni Kataky, (2022) 5 SCC 459 has considered the definition of ‘desertion’ on the basis of the judgment rendered by the Hon'ble Apex Court in Lachman Utamchand Kirpalani

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v. Meena, AIR 1964 SC 40 which has been consistently followed in several decisions of the Court.

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58. The law consistently has been laid down by the Hon’ble Apex 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

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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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59. Here in this case, it has been stated by the appellant that the respondent herself left her matrimonial house but so far as the not-living of the respondent in the appellant’s house is concerned, the appellant has himself stated that his wife is a medical student and in that view of the matter, it seems quite natural that a lady who was admittedly a student of medical college cannot be expected to live in her matrimonial home and cook food in her house during the continuance of her course. This fact alone is sufficient to demolish the entire plea of petitioner and it goes to strengthen the assertion of respondent that her husband and his family members were pressurizing her to discontinue her study and live in the petitioner's house and cook food for them.

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60. Here in this case, it has been stated by the appellant that in the year 2018 the respondent left his house without his consent and since then she has no relationship with him. The plaintiff/petitioner in his testimony as PW1 as well as all his witnesses stated that respondent left her sasural in year

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49

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2018 and since then she never came back.]

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61. Per contra, it is the case of respondent, that she had never left her matrimonial home at her own will rather it was the petitioner and his family members who were always subjecting the respondent with cruelty and assaulting and abusing her for the fulfillment of their illegal demand of dowry, for which the respondent has already filed a Complaint Case against the petitioner in the Court of C.J.M., Deoghar.

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62. It has further been stated that the respondent/wife is always ready and willing to live and start her conjugal life with her husband (petitioner/appellant) as earlier, but it is the petitioner himself who has deserted his wife.

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63. From the impugned order as well as material available o record, it is evident that admittedly the parties are living separately from one another since long and it has come on record from the oral as well as the documentary evidence of the parties also that there were a series of litigations between the parties but the petitioner/appellant has not shown anywhere in his entire evidence that he had ever tried to bring his respondent/wife back or he had filed any case for Bidagiri of his wife.

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64. Further it has been specifically stated by the respondent that she was being harassed in her matrimonial home and she was not kept properly due to which she had to leave the house of her husband. The factum of making false

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50

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allegations by the petitioner regarding inability of delivering a child by the respondent also goes to show that the petitioner wants to get rid from the respondent anyhow by making such type of baseless allegation. The respondent herself has stated that she has no medical problem relating to uterus.

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65. Thus, from the aforesaid it appears that respondent wife was compelled to leave her matrimonial wife and she has not left her matrimonial house on her own will therefore, it is considered view of this Court that finding of the learned Family Court on the issue of desertion requires no interference.

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66. This Court, based upon the aforesaid discussions is of considered view that the issue of cruelty and desertion 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, as such, this Court has no reason to take different view that has been taken by the learned Family Court observing that the petitioner has not been able to prove the willful desertion by the respondent wife and neither prove that respondent subjected him with cruelty to the extent required by law.

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67. On the perusal of the impugned judgment, it is considered view of this court that learned Family Court after due deliberation of factual aspect as well as evidence led by both the parties has recorded its finding, therefore, the contention of learned counsel for the appellant that impugned

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51

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judgment is suffering from perversity, is not fit to be accepted, hence rejected.

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68. This Court, on the basis of discussions made hereinabove, is of the view that the judgment dated 29.07.2024 and Decree dated 09.08.2024 passed by the learned Principal Judge, Family Court, Deoghar ,whereby and whereunder the Original Suit No.288 of 2022 filed by the appellant-husband under Section 13 of the Hindu Marriage Act, 1955 for a decree of divorce has been dismissed, requires no interference by this Court.

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69. Accordingly, the instant appeal fails and is

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dismissed.

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70. Pending interlocutory application, if any, also stands disposed of.

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(Sujit Narayan Prasad, J.)

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(Sanjay Prasad, J.)

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Date : 20/03/2026