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IN THE HIGH COURT OF JHARKHAND AT RANCHI

F.A. No. 38 of 2022

Amit Kumar Jha, aged about 46 years, son of Subodh Kumar Jha,

resident of Ward No.21, Mohalla Karpoori Nagar, P.O. & P.S.-

Madhepura, District-Madhepura, State-Bihar.

… … Appellant/Petitioner

Versus

Rani Devi, wife of Amit Kumar Jha, permanent resident of Ward

No.21, Mohalla-Karpoori Nagar, P.O. & P.S.-Madhepura, District-

Madhepura, State Bihar, present residing C/o Bishnukant Jha, Village-

Murramkalan, Public K.G.T. School, P.O. & P.S. Ramgarh, District

Ramgarh, State-Jharkhand.

… … Respondent/Respondent

-------

CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

HON’BLE MR. JUSTICE ARUN KUMAR RAI

-------

For the Appellant : Mr. Anil Kumar Sinha, Advocate

For the Respondent : Mr. Pratik Sen, Advocate

----------------------------

C.A.V. on 12

th

February, 2026 Pronounced on: 17

th

February, 2026

Per Sujit Narayan Prasad, J.

1. The instant appeal under Section 19(1) of the Family Court Act, 1984 is

directed against the order/judgment dated 24.02.2022 and decree signed

on 08.03.2022 passed by the learned Principal District Judge-cum-

Principal Judge, Family Court, Ramgarh in Original Suit No. 174 of 2014,

whereby and whereunder, the petition filed under Section 13 of the Hindu

Marriage Act, 1955 by the appellant/petitioner seeking a decree of divorce

against his wife, has been dismissed.

2. The brief facts of the case leading to filing of the divorce petition by the

appellant/petitioner needs to be referred herein as under:

The case of the petitioner is that, the petitioner Amit Kumar Jha

and the respondent Rani Devi are legally married couple and their

marriage was solemnized on 08.03.2000 according to Hindu rites and

customs. After the marriage, the respondent started living with her

husband, the petitioner, as his lawful wife. In due course of time, the

couple was blessed with three children out of their wedlock.

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It is alleged that, from the very beginning, the respondent had

developed strained relationship with the petitioner and his other family

members. She used to torture the petitioner, his mother as well as his

brother. She was not willing to cook food and was not ready to live with

the petitioner. Their conjugal life had become a hell, but even then, the

petitioner tried his level best to persuade his wife, but all in vain.

Ultimately, she left her matrimonial home on 22.02.2009 alongwith her

two children and started living at village Morramkalan, Ramgarh.

The petitioner had made several attempts to bring her back, but,

instead, he was abused and insulted by his wife and her other family

members and as such, they have been living separately since 22.02.2009.

In the meantime, the petitioner had filed a petition u/s 9 of Hindu

Marriage Act, 1955 for restitution of his conjugal rights, but all his efforts

went futile. Hence, the suit for divorce was filed.

3. The learned Family Judge has called upon the respondent-wife. The wife

has filed written statement and altogether five issues have been framed

which are as follows:

(i) Whether the suit as framed is maintainable?

(ii) Whether after solemnization of the marriage, the respondent has

treated the petitioner with cruelty?

(iii) Whether the petitioner has been deserted for a continuous period of

not less than two years immediately preceding the presentation of

the petitioner?

(iv) Whether the petitioner is entitled for decree of divorce?

(v) To what relief or reliefs the petitioner is entitled for?

4. The evidences have been laid on behalf of both the parties. Thereafter, the

judgment has been passed dismissing the suit by holding that the

petitioner (appellant herein) has failed to prove his case for divorce on the

grounds of cruelty and desertion against the respondent/wife on the

touchstone of preponderance of probabilities, which is the subject matter

of the present appeal.

Submission of the learned counsel for the appellant/petitioner:

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5. It has been contended on behalf of the appellant/petitioner that the factual

aspect which was available before the learned Single Judge supported by

the evidences adduced on behalf of the appellant/petitioner has not

properly been considered and as such, the judgment impugned is perverse,

hence, not sustainable in the eyes of law.

6. It has been submitted that the issue of cruelty, i.e., not taking care of the

appellant/petitioner and even of the parents and not cooking food as also

the fact of desertion has not been taken into consideration in right

perspective even though the fact about living separately since 22.02.2009

has well been established.

7. Learned counsel for the appellant/petitioner, based upon the aforesaid

ground, has submitted that the judgment impugned suffers from

perversity, as such, not sustainable in the eyes of law.

Submission of the learned counsel for the respondent:

8. Per contra, Mr. Pratik Sen, learned counsel for the respondent-wife, while

defending the impugned judgment, has submitted that there is no error in

the impugned judgement. The learned Family Judge has considered the

issue of cruelty and desertion and having come to the conclusion that no

evidence has been adduced to establish either cruelty or desertion, has

dismissed the petition.

9. It has been contended that the allegation so far as alleged of commission

of cruelty is considered, the ground has been raised before the learned

Family Judge that the respondent-wife is not taking care of the

appellant/petitioner and the in-laws.

10. It has been submitted that at the time of marriage, sufficient dowry was

given by the parents of the respondent-wife but the appellant/petitioner

and his parents demanded additional dowry of Rs. 3 lac at the time of her

Bidai, which had taken place after 2½ years. In the meantime, the

appellant/petitioner had been regularly visiting the parental house of the

respondent at Ramgarh and was cohabiting with her. Finally, her Bidai

was effected after the father of respondent presented large number of

articles to the appellant/petitioner and his parents. Thereafter, they lived

peacefully at her matrimonial for about three months. However, the

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appellant/petitioner and his other family members again started

demanding additional sum of Rs. 3 lac as dowry and she was even

subjected to assault on non-fulfillment of their aforesaid demand. In the

meantime, the respondent gave birth to a girl child, who is now 14 years

old. However, respondent was reprimanded for giving birth to a girl child.

11. It has also been submitted that the respondent-wife again became pregnant

in the year 2005, whereupon, the appellant/petitioner and his family

members tried to terminate her pregnancy, but the father of the respondent

brought her back to her parent's house, where she gave birth to her second

girl child. Thereafter, the appellant/petitioner and his family members

again demanded additional dowry and refused to keep her minor daughter.

Lastly, on 22.02.2009, the father of the respondent came to her

matrimonial home situated at Madhepura and took her back to Ramgarh

on 15.03.2009. Subsequently, the petitioner, came to her parent's home

and threatened that, his kids would be killed if his demand was not

fulfilled. Subsequently, the respondent filed a complaint case before

C.J.M., Hazaribag, vide Complaint Case No. 424/09, u/s 498A of IPC and

its other allied sections, wherein, cognizance has been taken against all the

accused persons.

12. The respondent has also filed a case of Maintenance u/s 125 Cr.P.C, vide

Maintenance Case No. 74/09, which was allowed in her favour and the

appellant/petitioner was directed to pay a sum of Rs. 7,000/- per month to

her. Their two children, namely, Mohit Kumar and Muskan are living with

the respondent at her parent's home and her one daughter, namely,

Masoom Kumari, is living with the appellant/petitioner. The case for

restitution of conjugal rights, vide MTS No. 167/09 filed by the

appellant/petitioner was dismissed as withdrawn on 25.06.2014, as in that

case the appellant/petitioner was directed to pay Rs. 6,000/- per month as

ad-interim maintenance to the respondent.

13. Learned counsel, based upon the aforesaid ground, has submitted that if

on that pretext, the factum of cruelty and desertion has not been found to

be established, based upon which the decree of divorce has been refused

to be granted, the impugned judgment cannot be said to suffer from error.

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Analysis:

14. This Court has heard the learned counsel for the parties and gone through

the finding recorded by the learned Family Judge in the impugned

judgment.

15. The case has been heard at length. The admitted fact herein is that the suit

for divorce has been filed on the ground of cruelty and desertion, i.e., by

filing an application under Section 13 of the Hindu Marriage Act, 1955

16. It is evident from the factual aspect that the appellant/petitioner had a

motion by filing a petition under Section 13 of the Hindu Marriage Act,

1955 for decree of divorce on the ground of cruelty and desertion on the

background of the fact, as has been pleading in the suit, that the marriage

of the petitioner and the respondent was solemnized on 08.03.2000,

according to Hindu rites and customs. After the marriage, the respondent

started living with her husband as his lawful wife. The couple was blessed

with three children out of their wedlock. It is the case of the petitioner that

from the very beginning, the respondent used to torture the petitioner, his

mother as well as his brother. She was not willing to cook food and was

not ready to live with the petitioner. Ultimately, the respondent left her

matrimonial home on 22.02.2009 alongwith her two children and started

living at village Morramkalan, Ramgarh. It is also the case of the

petitioner that the petitioner had made several attempts to bring her back,

but, instead, he was abused and insulted by his wife and her other family

members and as such, they have been living separately since 22.02.2009.

In the meantime, the petitioner had filed a petition u/s 9 of Hindu

Marriage Act, 1955 for restitution of his conjugal rights, but all his efforts

went futile.

17. Written statement was filed by the respondent/wife wherein all allegation

has been refuted and accordingly, issues have been framed wherein

primarily issue nos.2 and 3 pertains to cruelty and desertion.

18. The evidence has been led on behalf of both the parties. For ready

reference, the evidence led on behalf of the appellant/petitioner is being

referred as under:

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(i) PW-1 is the appellant/petitioner himself who has stated in

examination-in-chief that two days after his marriage with the

respondent on 08.03.2000, the respondent had developed bitterness

towards the petitioner and his other family members. She used to

pressurize him to live separately from his mother and his

unemployed brother, and when he did not accede to her such

request, she threatened him to leave her company. He stated that,

his daughter, Masoom was under his care and custody. He further

stated that, he had got compassionate appointment in Madhepura

University after the death of his father and the respondent always

insisted upon him to spend his entire earnings on the respondent

and also to neglect his mother and brother; and on raising objection,

the petitioner was ill-treated and abused by the respondent. Her

brother and father also used to instigate her and asked to leave the

company of her husband and lastly, despite objections from the

petitioner, the respondent went away to her parent's home on

22.02.2009 alongwith her two children leaving behind one daughter

with him.

It has also been stated by the appellant/petitioner that in

the meantime, he took several steps to bring the respondent back,

but she did not accede to his request and thereafter, he had filed a

case at Hazaribag, vide Case No. 1167/09, and it was in connection

with the aforesaid case that, both of them were referred before the

mediation center, but even before the Mediator, she refused to join

his company. He had made three attempts to bring her back, but he

was abused by the brother of the respondent and the respondent

herself refused to join his company.

The appellant/petitioner has admitted in his cross-

examination that, the court had directed him to pay Rs. 7,000/- per

month as maintenance to his wife and two children in connection

with case No. 74/09. He claimed to have filed an appeal against the

aforesaid order before the Hon'ble High Court, but he did not have

any knowledge about fate of the case and he candidly admitted that,

he has not paid any maintenance to his wife and children. He stated

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to have paid Rs. 6000/- per month to his wife and children for

continuous six months in connection with MTS Case No. 167/14,

which was dismissed in the year 2014. He stated that his wife had

filed a case of dowry demand against him, vide case No. 424/09. He

did not know in which class his children Mohit and Muskan were

studying. He has denied that, he had withdrawn the MTS Case No.

167/09 as he did not want to pay interim maintenance to his wife.

19. The respondent-wife has also been examined as R.W.-1. For ready

reference, her evidence is being referred as under:

(i) RW-1 (respondent) has stated in her examination-in-chief that after

her marriage, her in-laws did not perform her Gauna and were

deferring it, but her husband used to visit her house and demanded

Rs. 3 lac to get the compassionate appointment after death of his

father. He also used to demand motorcycle, TV and furniture. Her

Gauna was performed 3 years after her marriage. She stated that,

thereafter, her husband and his family members started demanding

additional dowry of Rs. 3 lac and on non-fulfillment of the same,

she was subjected to cruelty. Her daughter Muskan Kumari was

born at her matrimonial home, whereupon, her husband had again

demanded Rs. 3 lac. They had also performed sex determination

test of fetus during her 2

nd

pregnancy and on coming to know that,

it was a girl child, they pressurized her to terminate her pregnancy.

Thereafter, she narrated the above facts to her parents and, on

26.03.2005, her brother and father came to her matrimonial home

and took her back to her parent's home, where she gave birth to her

2

nd

daughter. In the meantime, her husband had also got

compassionate appointment and he demanded additional dowry of

Rs. 3 lac and that, then only he would keep the petitioner and her

three children with him. Subsequently, she had given an application

before Women Commission at Patna in the year 2007, and

thereafter, they had executed a compromise wherein her husband

had undertaken not to subject her to physical and mental cruelty in

future. Thereafter, the respondent went to her in-laws’ house, but

she was again subjected to cruelty. In the meantime, her husband

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got promoted for class-III service in the year 2009 and now, they

have started demanding Rs. 5 lac from her and she was subjected to

cruelty on non-fulfillment of their such demand. Subsequently, she

again filed a complaint before Women Commission, whereupon,

her husband and her brother-in-law came to her parent's home and

pressurized her to dissolve her marriage as the petitioner wanted to

solemnize his 2nd marriage.

Thereafter, she filed a case of dowry demand, which was

initially filed at Hazaribag and subsequently, it was transferred to

Ramgarh as her lawyer had stopped taking steps and since she was

not examined in that case, the accused persons got acquitted.

It has further been stated that the appellant/petitioner had

entered into compromise before the mediation center with the

respondent and he had agreed to take her alongwith her two

children to Madhepura, but he did not abide by the aforesaid

undertaking and that maintenance case was decided in her favour on

26.03.2015. The appellant/petitioner had preferred criminal revision

vide Cr. Revision No. 450/15 against the aforesaid order, but the

said revision was dismissed on 10.05.2019 by the Hon'ble High

Court. It has further been stated that the appellant/petitioner has not

paid any maintenance to the respondent till date. He had also not

paid the interim maintenance amount, which was allowed to her in

the case of restitution of conjugal rights. She (RW1) asserted that

petitioner had solemnized 2

nd

marriage and he also have children

from his 2

nd

wife.

She (RW1) admitted in her cross-examination that, her

husband was unemployed at the time of her marriage and claimed

that her Gauna was performed 2½ years after her marriage. She

stated that, her husband has taken her to Dr. P. Tuti for

determination of her pregnancy and denied that, there was no doctor

named as P. Tuti at Madhepura. She denied that, she does not want

the accompany her husband to Madhepura.

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20. The learned Family Judge has gone into the interpretation of the word

“cruelty” and “desertion” and assessing the same from the evidences led

on behalf of the parties as also the submission made in the pleading, i.e.,

plaint and written statement, has found that the element of cruelty and

desertion could not have been established and accordingly dismissed the

said suit against which the present appeal has been filed.

21. The learned counsel for the appellant/petitioner has argued that the

evidence of cruelty and desertion has not properly been considered and as

such, the judgment suffers from perversity, hence, not sustainable in the

eyes of law.

22. While on the other hand, argument has been advanced on behalf of the

respondent has submitted that the judgment is well considered one and

merely by committing fraud, the suit for divorce has been filed.

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

parties on the issue of perversity needs to refer herein the interpretation of

the word “perverse” as has been interpreted by the Hon'ble Apex Court

which means that there is no evidence or erroneous consideration of the

evidence. The Hon'ble Apex Court in Arulvelu and Anr. vs. State

[Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206

while elaborately discussing the word perverse has held that it is, no

doubt, true that if a finding of fact is arrived at by ignoring or excluding

relevant material or by taking into consideration irrelevant material or if

the finding so outrageously defies logic as to suffer from the vice of

irrationality incurring the blame of being perverse, then, the finding is

rendered infirm in law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27

of the said judgment reads as under:

“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.

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

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findings of the authorities are based on no evidence or that they are so

perverse that no reasonable person would have arrived at those

findings.

26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the

Court observed that any order made in conscious violation of pleading

and law is a perverse order. In Moffett v. Gough [(1878) 1 LR 1r 331]

the Court observed that a “perverse verdict” may probably be defined

as one that is not only against the weight of evidence but is altogether

against the evidence. 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.

27. The expression “perverse” has been defined by various

dictionaries in the following manner:

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

Edn.

“Perverse.—Showing deliberate determination to behave in a way

that most people think is wrong, unacceptable or unreasonable.”

2. Longman Dictionary of Contemporary English, International

Edn.

Perverse.—Deliberately departing from what is normal and

reasonable.

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.

4. The New Lexicon Webster's Dictionary of the English

Language (Deluxe Encyclopedic Edn.)

Perverse.—Purposely deviating from accepted or expected

behavior or opinion; wicked or wayward; stubborn; cross or petulant.

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

“Perverse.—A perverse verdict may probably be defined as one that is

not only against the weight of evidence but is altogether against the

evidence.””

24. Thus, a perverse verdict may probably be defined as one that is not only

against the weight of evidence but is altogether against the evidence.

Further “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.

25. Further the ground for divorce has been taken of cruelty and desertion.

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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26. 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 and his parents demanded dowry. The Hon’ble Apex Court

emphasized that “cruelty” can have no fixed definition.

27. 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.”

28. 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.”

29. 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.

30. In V. Bhagat vs. D. Bhagat (Mrs.), (1994)1 SCC 337, the wife alleged in

her written statement that her husband was suffering from “mental

problems and paranoid disorder”. The wife‟s lawyer also levelled

allegations of “lunacy” and “insanity” against the husband and his family

while he was conducting a cross-examination. The Hon‟ble Apex Court

held these allegations against the husband to constitute “cruelty”.

31. 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

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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.

32. Further, in the case of Vishwanath Agrawal v. Sarla Vishwanath

Agrawal, (2012) 7 SCC 288, the Hon’ble Apex Court has held as follows:

“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.

25. 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)

“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.”

26. 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)

“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. 1. These preliminary

observations are intended to emphasise that the court in matrimonial

cases is not 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 Gollins v. Gollins : (All ER p.

972 G-H) observed in „… 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.‟”

33. In the case of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 it has been

held by the Hon’ble Apex Court as follows: —

“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.

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,

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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.”

34. The Hon’ble Apex Court in Joydeep Majumdar v. Bharti Jaiswal

Majumdar, (2021) 3 SCC 742, has been pleased to observe that while

judging whether the conduct is cruel or not, what has to be seen is whether

that conduct, which is sustained over a period of time, renders the life of

the spouse so miserable as to make it unreasonable to make one live with

the other. The conduct may take the form of abusive or humiliating

treatment, causing mental pain and anguish, torturing the spouse, etc. The

conduct complained of must be “grave” and “weighty” and trivial

irritations and normal wear and tear of marriage would not constitute

mental cruelty as a ground for divorce.

35. It is, thus, evident 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.

36. Thus, from the aforesaid settled position of law it is evident that “Cruelty”

under matrimonial law consists of 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.

37. 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

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temperamental disharmony. Such disharmony or incompatibility is not

cruelty and will not furnish a cause for the dissolution of marriage.

38. Since the issue of desertion has also been raised therefore, the definition

of “desertion” is required to be referred herein as defined under

explanation part of Section 13 which means the desertion of the petitioner

by the other party to the marriage without reasonable cause and without

the consent or against the wish of such party, and includes the willful

neglect of the petitioner by the other party to the marriage.

39. 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:

“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.”

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:

“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.”

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. The fact that a husband makes an

allowance to a wife whom he has abandoned is no answer to a charge of

desertion.

40. 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. Desertion as a

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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.

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

that the quality of permanence is one of the essential elements which

differentiates desertion from wilful separation. If a spouse abandons the

other spouse in a state of temporary passion, for example, anger or

disgust, without intending permanently to cease cohabitation, it will not

amount to desertion. For the offence of desertion, so far as the deserting

spouse is concerned, two essential conditions must be there, namely, (1)

the factum of separation, and (2) the intention to bring cohabitation

permanently to an end.

42. Similarly, two elements are essential so far as the deserted spouse is

concerned: (1) the absence of consent, and (2) absence of conduct giving

reasonable cause to the spouse leaving the matrimonial home to form the

necessary intention aforesaid. In such a situation, the party who is filing

for divorce will have the burden of proving those elements.

43. Recently also, the Hon'ble Apex Court in Debananda Tamuli vs.

Kakumoni Kataky, (2022) 5 SCC 459 has considered the definition of

‘desertion’ on the basis of the judgment rendered by the Hon'ble Apex

Court in Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40

which has been consistently followed in several decisions of this Court.

The law consistently laid down by this Court is that desertion means the

intentional abandonment of one spouse by the other without the consent of

the other and without a reasonable cause. The deserted spouse must prove

that there is a factum of separation and there is an intention on the part of

deserting spouse to bring the cohabitation to a permanent end. In other

words, there should be animus deserendi on the part of the deserting

spouse. There must be an absence of consent on the part of the deserted

spouse and the conduct of the deserted spouse should not give a

reasonable cause to the deserting spouse to leave the matrimonial home.

The view taken by the Hon'ble Apex Court has been incorporated in the

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Explanation added to sub-section (1) of Section 13 by Act 68 of 1976. The

said Explanation reads thus:

“13. Divorce.—(1) …

Explanation.—In this sub-section, the expression “desertion” means the

desertion of the petitioner by the other party to the marriage without

reasonable cause and without the consent or against the wish of such

party, and includes the wilful neglect of the petitioner by the other party

to the marriage, and its grammatical variations and cognate

expressions shall be construed accordingly.”

44. This Court, on the premise of the interpretation of the word “cruelty” and

“desertion” has considered the evidences of the witnesses as has been

incorporated by the learned Court in the impugned judgment.

45. Admittedly the petitioner/appellant has not made any allegation of any act

of physical cruelty on the part of respondent. So far as the mental cruelty

is concerned, it has been alleged that two days after his marriage with the

respondent on 08.03.2000, the respondent had developed bitterness

towards the petitioner and his other family members and respondent used

to pressurize him to live separately from his mother and unemployed

brother. It has further been alleged that, petitioner always insisted upon

him to spend the entire earnings on the respondent and neglect his mother

and brother and lastly, despite objections from the petitioner/appellant, the

respondent went away to her parent's home on 22.02.2009 alongwith her

two children leaving behind one daughter with him.

46. In the aforesaid context it needs to refer herein that the respondent has

stated in her cross-examination that, her gauna (second marriage) was

performed two and a half years after her marriage, i.e., she had visited her

matrimonial home only after her gauna, which is a customary practice.

Therefore, the claim of the petitioner gets falsified that only two days after

her marriage she had developed bitterness against him or that she insisted

upon him to live separately from his mother and brother.

47. Further from the impugned order as also from material available on record

it is evident that the petitioner/appellant has not brought on record any

cogent evidence to substantiate his claim that, respondent/wife insisted

upon him to spent his entire earnings upon her and to neglect his mother

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and brother. Further the petitioner/appellant has not examined his mother

or brother as witness to substantiate any of his claims.

48. The learned Family Court has also taken into consideration in the

impugned order that the fact that after two days of the marriage, the

respondent developed bitterness against him cannot be said to be correct

in view of the admitted fact that the respondent visited her matrimonial

home for the first time after 2½ years after the marriage after her gauna

was performed.

49. The learned Family Court has also taken into consideration that the

appellant/petitioner was not paying any maintenance towards his wife

which has been admitted by the appellant/petitioner which shows his

conduct towards his wife and children. Further, the fact of dowry has also

been taken into consideration by the learned Family Judge as the

photocopy of the settlement dated 28.03.2007, arrived at on the basis of

the complaint made by the respondent before the Women Commission at

Patna in the year 2007, which had been exhibited, discloses that the

appellant/petitioner had undertaken before the Commission that he would

keep his wife with full honour and dignity and would not subject her to

cruelty which somehow shows that the respondent was subjected to

cruelty.

50. The desertion has also been taken as a ground but the desertion has been

defined and interpreted by the Hon’ble Apex Court that the desertion will

be said to be desertion if either of the party, on his/her own wish, has left

the matrimonial house. But, no such evidence has been produced by the

appellant/petitioner to prove the element of desertion showing that the

respondent-wife has left her matrimonial house on her own wish rather it

has been taken note in the impugned judgment as has been contended by

the respondent that the respondent had been ousted from her matrimonial

home on non-fulfillment of the demand of dowry.

51. Further in the instant case, though the factum of separation is there, but

appellant has failed to prove that the respondent had the intention to bring

the cohabitation permanently to an end, therefore, the animus deserendi is

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lacking in this case on part of the respondent who was still willing to live

with the petitioner.

52. The learned Family Judge, on consideration of both the issues, has not

found the ground for dissolution of marriage and therefore, dismissed the

suit.

53. This Court, based upon the aforesaid discussion, is of the view that the

appellant/petitioner has failed to establish the element of perversity in the

impugned judgment as per the discussion made hereinabove, as such, the

instant appeal deserves to be dismissed.

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

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

(Sujit Narayan Prasad, J.)

I agree,

(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)

17

th

February, 2026

Saurabh/

A.F.R.

Uploaded on 17.02.2026