As per case facts, the appellant-husband filed for divorce based on cruelty and desertion, alleging that his wife tortured his step-children, demanded money, and assaulted him, which forced him to ...
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2026:JHHC:25952-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 279 of 2017
-----
Ganesh Kumar Singh, son of late Ramlagan Singh, resident of village and
Post-Mehdasahpur, P.S-Chariyabariyarpur, District-Begusarai, at present
residing at worker’s Flat Qr. No.642, P.O-Baridih, P.S-Sidhgora, District-
East Singhbhum. .......… Petitioner/Appellant
Versus
1. Smt. Anita Devi wife of Ganesh Kumar Singh, at present resident of
village:Dih, P.O-Birpure, P.S-Birpur District-Begusarai (Bihar).
2. M/s Tata Steel Limited through the C.M.D.
......... Respondents
-------
CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON’BLE MR. JUSTICE SANJAY PRASAD
-------
For the Appellant : Mr. Sanjeev Thakur, Advocate
For the Resp. No.1 : Mr. Saurav Arun, Advocate
Ms. Ayushi, Advocate
Mr. Bhanu Kumar-2, Advocate
Mr. Rohit Ranjan Singh, Advocate
------
C.A.V on 09.07.2026 Pronounced on 27/08/2026
Per Sujit Narayan Prasad, J.
1. The instant appeal under section 19(1) of the Family Courts Act, 1984
is directed against the judgment dated 20.07.2017 and the decree signed
and sealed on 31.07.2017 passed in Matrimonial Suit No.145 of 2008 by
the learned Additional Principal Judge, Additional Family Court, East
Singhbhum at Jamshedpur, (in short, Family Judge) whereby and
whereunder the petition filed under section 13 (1) (i-a), (i-b) of the Hindu
Marriage Act, 1955 by the appellant-husband against the respondent-wife,
has been dismissed.
2. It needs to mention herein that the instant appeal has been admitted
vide order dated 23.07.2018 passed by a co-ordinate Bench of this Court
and on that day, the following order was passed:
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2
“04/ 23.07.2018 The sole Respondent has entered appearance
on notice.
2. Heard learned counsel for the appellant and the Respondent
on the prayer for condonation of delay of 21 days in preferring
the Memo of Appeal made through I.A. No. 8878/2017.
3. Learned counsel for the appellant submits that delay is minor
and unintentional. In the interest of justice, it may be condoned.
4. On being satisfied with the grounds urged and upon
consideration of the submissions of the learned counsel for the
parties, delay is condoned. I.A. stands disposed of.
5. Admit.
6. Call for the lower court records in connection with
Matrimonial Suit No. 145/2008 from the Court of Learned
Additional Principal Judge, Additional Family Court, East
Singhbhum, Jamshedpur.”
3. Thereafter, as per roster the matter was listed before different co-
ordinate Benches who heard the matter at length. Vide order dated
03.04.2024 a co-ordinate Bench of this Court has passed the following
order:
“19/03.04.2024 Since this Court does not have the roster of First
Appeal this matter is, therefore, released from our Bench.”
4. The matter was listed before this Court for the first time on 23.04.2025
and on that day the following order was passed by this Court:
“23/Dated: 23
rd
April, 2025:
“1. Mr. N.K. Sahani, learned counsel on record, has prayed for
adjournment.
2. Such submission has been made in presence of Mr. Saurav
Varun, learned counsel for the respondent.
3. However, the matter is of the year 2017, still considering the
prayer made by the learned counsel appearing for the appellant,
the matter is being adjourned.
4. Let this case be listed on Monday, i.e., on 28
th
April, 2025 so
that the matter be finally heard and closed.”
5. On 28.04.2025, this Court has passed the following order:
Order No.41/ Dated 28
th
April 2025
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3
The present appeal is against the judgment and decree dated
20.07.2017 passed by the learned Additional Principal Judge,
Additional Family Court, East Singhbhum at Jamshedpur in
Matrimonial Suit No.145 of 2008, whereby and whereunder, the
application for divorce under Section 13(i) (ia)(ib) filed on behalf
of the appellant has been dismissed.
2. Mr. Sanjeev Thakur along with Mr. Nisith Kumar Sahani,
learned counsel for the appellant-husband has submitted that the
judgment passed by the learned Family Court suffers from serious
error.
3. Mr. Saurav Arun, learned counsel for the respondent-wife has
submitted that the appellant is at present working in Tata Steel
and he is to superannuate within a year. The wife is ready for
settlement in terms of money, if 50% of the retirement benefit will
be paid to her which is important for survival of her remaining
life.
4. Mr. Sanjeev Thakur, learned counsel for the appellant-husband
has submitted that he is having no contact with the appellant.
However, he has submitted that he will try to have an instruction
on the aforesaid issue and he will address the Court on the issue
of maintainability of the present appeal after withdrawal of the
aforesaid suit.
5. As prayed for, let this case be listed on 08
th
May, 2025.
6. The instant appeal was adjourned twice on 08.05.2025 and 24.06.2025
on the request of the parties for filing affidavits and its response.
Thereafter, on 20.04.2026, this Court has passed the following order:
“43/Dated:20
th
April, 2026
Mr. Sanjeev Thakur, learned counsel appearing for the appellant
has submitted that matter may be posted on any date in the next
week so that the matter may be heard on merit. He has submitted
that matter may come on 28.04.2026.
2. We are agreeing to his proposal. So, matter is being posted on
28.04.2026 within top five cases, so that the instant appeal be
concluded on that date.
3. This Court thought it proper to post the mater under the
heading ‘For Orders’ keeping the fact into consideration that this
appeal, (matrimonial lis), is lying pending before this Court since
the year 2017.”
2026:JHHC:25952-DB
4
7. Thereafter this Court has thought it proper to implead the employer of
the appellant-husband, i.e, M/s Tata Steel Limited through its C.M.D as
party-respondent only for corroboration of details which was directed to
be filed on behalf of the appellant-husband for consideration of the issue
of alimony and has passed the following order:
44/Dated: 28
th
April, 2026
1. Heard Mr. Sanjeev Thakur, learned counsel for the appellant-
husband and Mr. Saurav Arun, learned counsel for the
respondent-wife.
2. This Court thought it proper that before proceeding further, an
affidavit is required to be filed in view of the judgment rendered
in the case of Rajnesh v. Neha & Anr., (2021) 2 SCC 324.
3. Accordingly, learned counsel for the parties are directed to file
affidavit showing the worth both movable and immovable
property in view of the aforesaid judgment.
4. The appellant-husband is directed to bring on record the pay-
slip along with the statement of account and the details of the
property owned.
5. This Court has also been informed by Mr. Thakur, learned
counsel for the appellant-husband on the instructions that the
appellant is to superannuate from service in February, 2027.
6. This Court is also to consider the issue of alimony in view of
the provision of Section 25 of the Hindu Marriage Act, 1955, as
such, is of the view that the Tata Steel through its C.M.D. is to be
impleaded as party-respondent for the purpose of corroboration
of details which is directed to be filed on behalf of the appellant-
husband.
7. Accordingly, let the Tata Steel through the C.M.D. be
impleaded as party.
8. It has been informed that Mr. Indrajit Sinha, learned counsel
is the retained counsel for the Tata Steel, as such, let the name of
Mr. Indrajit Sinha be reflected in the daily cause list.
9. Mr. Sinha, learned counsel is directed to file an affidavit
furnishing the details of the income of the appellant-husband as
also what would be the retiral benefits after his superannuation
from service. The said affidavit be supported by relevant
documents.
10. Let this case be listed on 11.05.2026 under the same
heading.”
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5
8. On 09.06.2026 when the matter was listed on Board, both the parties
who were present in the Court, had agreed for one time settlement and the
matter was adjourned to be listed on 12.06.2026 for filing their respective
affidavits in this regard.
9. On 12.06.2026 the respondent-wife has stated the she has not agreed
for one time settlement and a prayer has been made on her behalf to decide
the matter on merits. On 12.06.2026 this Court has passed the following
order:
48 / 12.06.2026 Reference may be made to the order dated
09.06.2026 which is being referred herein:
“1. Mr. Sanjeev Thakur, learned counsel appearing for
the appellant, on instruction from his client i.e the
appellant, namely, Ganesh Kumar Singh, who is present
before this Court, has submitted that his client (i.e. the
appellant) is ready for one time settlement for an amount
of Rs. 25.00/- Lakhs.
2. The aforesaid offer has been accepted by Mr. Saurav
Arun, learned counsel appearing for the Respondent,
namely, Smt. Anita Devi, who is also present before this
Court.
3. Learned counsel for the appellant, however, has sought
for adjournment for two days to bring this fact on record
by filing an affidavit.
4. Let the affidavit be filed by serving a copy in advance
to the learned counsel appearing for the respondent so
that he may also file a separate affidavit showing the
consent over the same.
5. Let this case be listed on 12th June, 2026.”
2. The affidavit in pursuance to the order dated 09.06.2026 has
been filed on behalf of the appellant-husband showing the consent
for settlement on payment of Rs.25,00,000/- as a lump sum
amount of settlement.
3. The similar affidavit was also to be filed on behalf of the
respondent.
4. When the matter has been taken up today, Mr. Saurav Arun,
learned counsel appearing for the respondent-wife has submitted
that although he has made statement on the basis of the
instruction which has been received from his client, the
2026:JHHC:25952-DB
6
respondent showing the agreement of settlement on payment of
Rs.25,00,000/-, to which the appellant has agreed as taken note
in the order dated 09.06.2026. But today Mr. Saurav Arun,
learned counsel has submitted that his client is not ready for
settlement rather his client, respondent is willing to decide this
case on merit. Therefore, no such separate affidavit has been filed
in terms of the order dated 09.06.2026.
5. This Court, therefore, is of the view that the Court cannot
compel a party to come to the settlement. However, initially it was
agreed by the respondent but subsequently, disagreement has
been shown to this Court, therefore, is of the view that the matter
is to be heard on merit.
6. Mr. Sanjeev Thakur, learned counsel appearing for the
appellant has submitted that he has already concluded his part of
argument subject to the response of the argument which is to be
advanced on behalf of the respondent.
7. Accordingly, the matter is being deferred to be listed on
09.07.2026 so that the argument be advanced on behalf of the
respondent for deciding the issue on merit.
8. List this case on 09.07.2026.”
10. On 09.07.2026, this Court after having heard both the parties at
length has reserved the judgment.
Factual Matrix
11. The brief facts of the case as pleaded in the plaint having been
recorded by the learned Family Judge, needs to be referred herein as:
(i) The appellant-husband and respondent-wife got married
with each other on 18.02.1999 at Village-Dih, PS-Birpur,
Begusarai as per Hindu rites and rituals.
(ii) Prior to the marriage of the petitioner with the respondent
Anita Devi, the petitioner was earlier married with Anju
Devi from whom the petitioner has a son and a daughter
who are aged about 16 years and 13 years respectively at
the time of presentation of divorce suit.
2026:JHHC:25952-DB
7
(iii) The first wife of the petitioner namely Anju Devi died in
1994. After death of the first wife, the marriage
negotiation of the petitioner with the respondent had taken
place and it continued for months together and thereafter
the marriage was fixed with the respondent and it was
understood to the respondent family and the respondent
that after the marriage with the petitioner, the respondent
would ever look after the two children of the petitioner
born out of the wedlock of his first wife Anju Devi and on
this proposal, the marriage of the petitioner with the
respondent was solemnized on 18.02.1999.
(iv) At the time of marriage, the petitioner was working in
TISCO Ltd. as a permanent employee and therefore, after
the marriage the petitioner came to Jamshedpur along with
respondent and along his two minor children born out of
the wedlock with his first wife and they all started residing
in Flat no. 642, Workers' Flat, Baridih, Jamshedpur which
was allotted to the petitioner by his employer TISCO Ltd.
(v) During the course of residing at aforesaid flat, the
respondent mercilessly tortured her step-children causing
immense mental agony to the petitioner and when torture
to the two children went beyond limit, the petitioner was
compelled to send the children to their maternal house at
Pokhariya, Begusarai.
(vi) After the children went to their maternal home, the parents
and the brother of the respondent wife came to the
2026:JHHC:25952-DB
8
aforesaid flat of the petitioner and started residing there
causing utmost annoyance to the petitioner.
(vii) While residing in the said flat, the parents and the brother
of the respondent started extorting money from the
petitioner and for that sake they used to even write letters
making demand of money. The petitioner has alleged that
the respondent was pressing upon the petitioner to transfer
the land which the petitioner has purchased at Begusarai
in his own name and in the name of his son, born from his
first wife and when the petitioner refused to do so, the
respondent started creating nuisance.
(viii) The respondent even handed her golden ornaments, given
by the petitioner to her father, who, in turn, mortgaged the
same for monitory gain.
(ix) That the torture upon the petitioner was so unbearable that
the petitioner was compelled to leave his flat as to reside
elsewhere in order to have mental peace and thereafter the
respondent and her parents and brother started joyfully
occupying the said flat for which the petitioner has been
paying monthly rent, electricity charges etc.
(x) That in order to extort money and to harass and torture the
petitioner, the respondent instituted a false case of dowry
demand against the petitioner, his parents and his brother
and married sister.
(xi) Finding no way out, the petitioner had filed a Matrimonial
Suit no. 49/2001 against the respondent for decree of
divorce but as he could not collect sufficient documentary
2026:JHHC:25952-DB
9
evidence at that time, hence, he had to withdraw the suit
which was accordingly ordered to be withdrawn by the Ld.
Principal Judge, Jamshedpur vide order dated 14.12.2001.
(xii) After some time, the petitioner has filed a fresh suit for
divorce on the ground of cruelty and desertion, which is
the subject matter of the instant appeal.
(xiii) It is stated that after withdrawal of the first suit for divorce,
the respondent had filed a case u/s 107 Cr.P.C. in the court
of Ld. SDM, Jamshedpur vide Misc. Case no. 374/02 and
another case by filing an application before the Ld. SDM
but these cases were dropped and one of the cases was
found to be false by the Ld. SDM, Jamshedpur.
(xiv) It is further stated that the respondent even filed a false
criminal case at Begusarai against the petitioner and his
family members but the said case terminated in favour of
the petitioner by judgment dated 01.03.2005 passed by the
Ld. Judicial magistrate, 1
st
Class, Begusarai in GR-
1214/2003. The respondent-wife even filed a false
Maintenance case vide Misc. case no. 37/2002.
(xv) Apart from this, the father of the petitioner, namely, Ram
Lagan Singh has also filed a complaint case vide C/1-
1430/2002 on 21.10.2002 before the Ld. CJM, Begusarai,
which is pending.
(xvi) The petitioner apprehending the danger to his live also
instituted a case u/s 107 Cr.P.C. vide Misc. case no.
1420/2002.
2026:JHHC:25952-DB
10
(xvii) That on 02.06.2002 in the court campus the respondent as
well as other family members assaulted the petitioner and
the father of the petitioner for which criminal case vide
C/1-564/2003 was instituted against the respondent and
others.
(xviii) Prior to this case, another case was instituted against the
respondent and others for allegedly assaulting the
petitioner and for snatching his golden ornaments vide
C/1-897/2002. Another case vide C/1-1074/2007 was
instituted against the respondent and others for act of
vandalism over the case which is still pending.
(xix) It is further stated that apart from the aforesaid criminal
cases the respondent has committed serious offence and
she has been sent to jail in the criminal case vide Sidgora
P. S. case no. 93/2007, which was instituted against the
respondent, her father, her brother and her mother for
allegedly committing murder of her sister-in-law and for
which the respondent is facing sessions trial in the court of
Ld. Addl. Sessions Judge, Jamshedpur, vide ST case no.
23/2008.
(xx) In view of these cases, it is clear that the respondent is a
woman of criminal character and she has treated the
petitioner with cruelty, both mental and physica,l and it
would be harmful for the petitioner to continue his
conjugal life with the respondent.
12. On the aforesaid ground of cruelty and desertion, the petitioner-
husband has filed a suit before the learned Family Court and prayed for a
2026:JHHC:25952-DB
11
decree of dissolution of the marriage between him and the respondent-
wife.
13. In pursuance to issuance of notice, the appellant-wife appeared
in the original suit and filed written statement denying all the allegations
of torture and cruelty committed by her upon the petitioner and upon the
children of the petitioner born from his first wife. The respondent has
stated that it is the respondent-wife who has suffered cruelty in her
matrimonial home from the hands of the petitioner-husband and further it
is the respondent-wife who has been deserted by the petitioner but the
petitioner has filed this case by suppressing these facts and the petitioner
intends to take advantage of his own wrong.
14. The respondent-wife has alleged that the marriage of the
respondent with the petitioner was solemnized on 18.02.1999 and at the
time of marriage, the family of the respondent was told that the petitioner
is unmarried. The respondent has further stated that after the marriage, the
respondent-wife was firstly brought to the house of the petitioner situated
at Begusarai, near Alka Cinema Hall and she was not taken to the native
village of the petitioner, neither the children of the petitioner from the first
wife were brought in the house where the respondent-wife was taken first.
After sometime, the petitioner and the respondent came to Jamshedpur and
they started living as husband and wife in a rented house in Namda Basti,
Jamshedpur, and after living there for about 3 months, the petitioner and
the respondent shifted to the quarter allotted to the petitioner situated at
Workers' Colony.
15. The respondent-wife has further alleged that after shifting to the
said quarter, the petitioner started demanding Rs. 1 lakh from the
respondent and the respondent was tortured for fulfilling the same and she
2026:JHHC:25952-DB
12
was even physically assaulted, locked in a room and even she was not
provided proper food. The respondent has further stated that when the
demand of the petitioner was not fulfilled the respondent was assaulted
inhumanly and when the neighbours told the respondent to inform the
police, the petitioner fled away leaving the respondent and her son and,
since then, the petitioner is not living with the respondent and her son and
neither he was providing anything for their maintenance and because of
that the respondent has been compelled to file maintenance case claiming
maintenance for herself and her son.
16. It is pleaded that the petitioner, in order to save himself from the
criminal case and the maintenance case, filed Matrimonial Suit No-
49/2001 for divorce and when the respondent appeared in the said divorce
case and filed her written statement, the petitioner filed an application for
withdrawal of the said case which was ultimately dismissed.
17. The respondent-wife has further stated that the petitioner-
husband never missed any opportunity to torture the respondent and when
the Bhabhi of the respondent committed suicide, the petitioner in
connivance with the mother and father of the deceased Bhabhi of the
respondent, implicated the respondent in false case of dowry death, in
which the respondent has been convicted by the learned Trial Court and
the respondent has preferred appeal before the Hon'ble Jharkhand High
Court, Ranchi, in which respondent/wife has been acquitted .
18. It is pleaded that the petitioner and his family members have filed
several cases against the respondent in Jamshedpur as well as in
Begusarai, but in most of those cases, the respondent has been acquitted.
19. It is further averred that when the respondent was in judicial
custody in connection with the false case of death of her Bhabhi, the son
2026:JHHC:25952-DB
13
of the respondent was forcibly taken by the petitioner, though for about 8
years since his birth, he has remained with the respondent. The respondent
has further stated that when the respondent was in judicial custody in
connection with said case, the petitioner has filed this divorce suit with
dishonest intention so that the respondent might not be able to appear and
contest this case.
20. It is averred that the petitioner by living separately has indulged
in adulterous relation with some other woman and he has sexually
exploited other woman on the pretext of marrying her and for that even a
complaint has been filed against the petitioner.
21. It is further pleaded that earlier divorce suit vide Matrimonial
Suit no. 49/2001 filed by the petitioner was dismissed as withdrawn
without giving leave to the petitioner to file a fresh suit and, as such, the
present suit is not maintainable. The respondent-wife has further stated
that it is the respondent-wife, who has suffered cruelty in her matrimonial
home and not the petitioner-husband, and hence, this suit is liable to be
dismissed.
22. Learned Family Judge, after institution of the said case, taking
into consideration of the pleadings of the petitioner/appellant and the
respondent-wife has formulated the issues and has decided the lis by
refusing to grant divorce to the petitioner/appellant.
23. The aforesaid judgment, by which divorce has not been granted,
is under challenge by filing the instant appeal.
Submission of behalf of the appellant-husband:
24. Mr. Sanjeev Thakur, the learned counsel appearing for the
appellant-husband has taken the following grounds:
2026:JHHC:25952-DB
14
(i) There is an error in the impugned judgment, since, each
and every aspect of the matter has not been taken into
consideration based upon the documentary evidences
as well as ocular evidences.
(ii) It has been contended that the element of cruelty has
been found to be there as the respondent-wife has filed
several criminal cases against the appellant-husband
and his family members, but without appreciating the
same properly, the learned Family Judge has come to
the finding by holding that no element of cruelty is
there and, as such, the impugned judgment and decree
suffers from an error.
(iii) It has been contended that the appellant has been
meted out with cruelty at the hands of the respondent-
wife and her family members due to cruel behaviour
and assault as would be evident from the evidence
adduced on behalf of the appellant-husband, but the
same has not been taken into consideration by the
learned Family Judge.
(iv) It has been contended that though the learned Family
Judge has proceeded the matter and dismissed the
original suit, but he has failed to appreciate the
evidences adduced on behalf of the appellant as in the
trial, the evidence has come that it was the respondent-
wife who has committed cruelty upon him by her cruel
behaviour and act, deserted the petitioner and
2026:JHHC:25952-DB
15
compelled him to leave the staff quarter by assaulting
him.
25. The learned counsel, based upon the aforesaid ground, has
submitted that the impugned judgment and decree, therefore, need
interference on the ground of perversity.
Submission of behalf of the respondent-wife:
26. Per contra, Mr. Saurav Arun, the learned counsel appearing for
the respondent-wife has taken the following grounds:
(i) There is no error in the impugned judgement as the
learned Family Judge has considered the entire issue
and on the basis of evidence laid by the respondent
herself has passed the order impugned.
(ii) The respondent-husband has sought for divorce on the
ground that the behaviour of the appellant-wife is
cruel and she has deserted him without any valid
ground and the learned Family Court, after taking into
consideration the evidence adduced on behalf of the
respondent-wife, has rightly held that there was no
sufficient ground found with regard to cruelty and
desertion by the respondent-wife and, as such, has
dismissed the divorce petition.
(iii) It has been contended that the issue of desertion has
rightly been appreciated, since, the issue of desertion
requires to be considered on the basis of the factum
that if any of the spouse has left the matrimonial house
on his/her own will, but in the instant case the
petitioner-husband in his evidence during trial as he
2026:JHHC:25952-DB
16
himself admitted that he left the staff quarter and
started living in a rented quarter at Vidyapati Nagar
separately and on that basis the learned Family Judge
has rightly dismissed the suit for divorce.
27. Learned counsel, based upon the aforesaid grounds, has
submitted that if on that pretext, the factum of cruelty and desertion has
not been found to be established, hence, the impugned judgment cannot be
said to suffer from an error.
Analysis:
28. We have heard the learned counsel appearing for the parties,
gone through the impugned judgment, as also the testimony of the
witnesses and the materials available on record.
29. It needs to refer herein that since appellate jurisdiction has been
invoked herein, therefore, before entering into merit of the case, at this
juncture it would be purposeful to discuss the appellate jurisdiction of the
High Court.
30. 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 Sub- ordinate 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).
31. 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.
2026:JHHC:25952-DB
17
32. 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 Court observed that it is lawful for the High Court acting
as 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:
“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.”
33. This Court is now adverting to the impugned order/judgment by
which prayer for dissolution of marriage on the ground of cruelty and
desertion has been refused by the learned Family Court.
34. It is evident that the learned Family Judge has considered the
evidence adduced on behalf of the appellant-husband and the respondent-
wife for deciding the issues involved in Matrimonial Suit No.145 of 2008
which has been filed on the ground of cruelty and desertion by the
appellant-husband.
35. The learned Family Judge has formulated altogether six issues,
for ready reference the same are being quoted hereinbelow:
I. Whether the suit is maintainable in its present form?
II.Whether the petitioner has got valid cause of action for the suit?
2026:JHHC:25952-DB
18
III.Whether the petitioner is entitled to a decree for dissolution of the
marriage on the ground of cruelty and desertion?
IV. Whether the petitioner has suffered cruelty from the hands of the
respondent?
V.Whether the suit is barred U/O XXIII, Rule-1(4) of CPC?
VI. Whether the petitioner is entitled for any other relief or reliefs
claim in the suit?
36. In support of his case, three witnesses have been examined on
behalf of the petitioner-husband (appellant herein) including himself as
P.W.1. In addition to that the following documentary evidences have been
adduced on behalf of the petitioner-husband:
(i) Certified copy of marriage card which has been proved in
GR Case No. 1346/01,
(ii) Certified copy of deposition of Rajendra Kumar examined in
Misc. Case No. 1420/02,
(iii) Certified copy of deposition of Chandra Bhushan Prasad
Singh examined in Misc. Case No. 37/02,
(iv) Certified copy of deposition of police report submitted in
Misc. No. 149/02,
(v) Certified copy of Surrender-cum-bail petition of Jagarnath
Prasad Singh filed in C/1 Case No. 564/03,
(vi) Certified copy of letter dated 30.10.1999 of Jagarnath
Prasad Singh proved in GR Case no. 1346/01,
(vii) certified copy of judgment dated 01.03.2005 passed in GR
Case no. 1214/03,
(viii) certified copy of deposition of Anita Devi in GR Case
NO. 1346/01,
(ix) certified copy of order sheet of GR Case NO. 1257/03,
(x) certified copy of deposition of Dr. Ashok Kumar Barnwal &
Virendra Paswan examined in GR Case no. 1257/03,
(xi) certified copy of deposition of Nawal Kishor Prasad Singh
examined in GR Case no. 1346/01,
(xii) certified copy of order-sheet dated 28.10.2009 of GR Case
NO. 2692/08,
(xiii) certified copy of charge-sheet of GR Case No.
2692/08,
(xiv) certified copy of letter dated 07.10.2001 of Baidhnath
Prasad Singh exhibited in Misc. Case 37/02,
2026:JHHC:25952-DB
19
(xv) certified copy of order dated 09.11.2015 of GR Case No.
3686/15,
(xvi) certified copy of FIR of Sitaramdera PS Case No. 247/15,
and
(xvii) certified copy of judgment dated 22.05.2009 passed
in Sessions Trial No. 23/08.
37. On the other hand, the appellant-wife has also examined four
witnesses in support of her contention including herself as DW1 and she
has also adduced the following documentary evidence:
(i) Photocopy of judgment of C/1 case no. 1374/2006,
(ii) photocopy of Judgment of C/1 case no. 564/2003,
(iii) photocopy of Sidgora PS case no. 94/2001,
(iv) photocopy of order sheet of Mat. Suit no. 49/2001,
(v) photocopy of order dated 03.02.2009 of. Misc. case no.
37/2002,
(vi) photocopy of Letter dated 15.10.2008 addressed to the
Superintendent of Police, Jamshedpur,
(vii) photocopy of deposition of Dr. Akhilesh Kumar Choudhary
given in ST case no. 23/2008,
(viii) photocopy of order dated 20.06.2012 of C/1 case no.
2063/2011,
(ix) photocopy of complaint petition of C/1 case no. 2063/2011,
(x) photocopy of FIR of Sidgora PS case no. 93/2007,
(xi) photocopy of order dated 24.02.2010 of Misc. case no.
37/2002,
(xii) photocopy of deposition of Satya Narayan Singh given in ST
case no. 23/2008, and
(xiii) photocopy of letter dated 23.01.2010 of the District
Transport Officer, Jamshedpur
38. But first of all, the learned Family Judge has taken into
consideration the issue nos. (III) and (IV) i.e., whether the petitioner is
entitled to a decree for dissolution of the marriage on the ground of cruelty
and desertion and whether the petitioner has suffered cruelty from the
hands of the respondent?
2026:JHHC:25952-DB
20
39. Thereafter, the learned Family Judge has considered the evidence
adduced on behalf of the parties for deciding the issues involved in
Matrimonial Suit No.145 of 2008.
40. This Court while appreciating the argument advanced on behalf
of the appellant on the issue of perversity needs to refer herein the
interpretation of the word “perverse” as has been interpreted by the
Hon'ble Apex Court which means that there is no evidence or erroneous
consideration of the evidence.
41. 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 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.
2026:JHHC:25952-DB
21
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.”
42. 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.
2026:JHHC:25952-DB
22
43. Thus, “perversity” refers to a finding or decision so
unreasonable or irrational that no reasonable person acting judicially
could have reached it. It signifies a gross and unreasonable assessment of
evidence or law by a Court.
44. Further, Perversity is a high threshold for intervention,
distinguishing it from a mere error of fact or law. The safest approach on
perversity is the classic approach on the reasonable man's inference on
the facts but inadequacy of evidence or a different reading of evidence is
not perversity, reference in this regard be made to the judgment rendered
by the Hon’ble Apex Court in the case of Damodar Lal v. Sohan Devi,
(2016) 14 SCC 197.
45. In the backdrop of the aforesaid settled position of law and
factual aspects only seminal issue has to be decided herein that “Whether
the plaintiff is entitled to get divorce dissolving the marriage of the
petitioner/appellant with OP/wife under sections 13(1) (i-a) and (i-b) of
the Hindu Marriage Act, 1955?”
46. This Court, in order to appreciate the aforesaid rival submission
before entering into the legality and propriety of the impugned judgment,
needs to discuss herein the relevant part of the evidences adduced on
behalf of the appellant-husband and the respondent-wife wherein the
element of cruelty and desertion has been shown by the petitioner-husband
(appellant herein).
47. During the trial, the appellant-husband himself has been
examined as PW1 before learned Family Court.
48. In his examination-in-chief on oath as PW1, the respondent-
husband has narrated entire things as pleaded in the plaint about his
marriage with the appellant-wife. PW-1 has stated that his marriage with
2026:JHHC:25952-DB
23
the respondent-Anita Devi was solemnized on 18.02.1999 but prior to this
marriage, PW-1 was earlier married with one Anju Devi, in the year 1990
but the said Anju Devi died in 1994 leaving behind her two children
Sanjeev Kumar and Surbhi Kumari. After death of his first wife, the two
children of PW-1 from his first wife, were residing in their maternal home
with their maternal Grand-father, Chandra Bhushan Prasad Singh, though
the entire expenses of their maintenance were incurred by PW-1.
49. PW-1 has further stated that the fact about the first marriage and
his two children from the first marriage were known to the respondent, her
father and her brother and they had agreed for marriage after knowing this
fact and, hence, the marriage of PW-1 with the respondent was solemnized
on 18.02.1999. PW-1 has further stated that after the marriage, PW-1 and
the respondent started residing as husband and wife at workers Flat No.
642, Baridih, which was allotted to PW-1 by his employer TISCO as PW-
1was a permanent employee of TISCO and a male child was born out of
their wedlock on 05.12.1999 at TMH, Jamshedpur.
50. PW-1 has further stated that after that the mother, father and the
brother of the respondent started demanding money from the petitioner by
writing letter and by personally visiting to Jamshedpur. PW-1 has stated
that one Ramakant Singh, who was friend of the father of the respondent
and who worked in electricity department of Jamshedpur, used to give the
letters of the parents and the brother of the respondent to PW-1 and thereby
the parents and the brother of the respondent have taken about Rs. 50,000/-
from PW-1.
51. PW-1 has further stated that the respondent and her parents
demanded Rs 1 lakh from PW-1 for starting STD both for the brother of
the respondent, Manoranjan Singh and when PW-1 refused to pay the
2026:JHHC:25952-DB
24
same, they started quarreling with PW-1 and they even assaulted PW-1
and PW-1 was not provided proper food. PW-1 has further stated that these
instances continued for some time and finally PW-1 was driven out of
quarter no. 642 by these persons after being assaulted and threatened to
bring Rs. 1 lakh.
52. PW-1 has further stated that thereafter PW-1 filed Matrimonial
Suit No. 49/01 against respondent for divorce in which the respondent
appeared after notice but did not file her written statement in the said case,
rather the respondent-wife filed a case u/s 498A IPC vide GR Case no.
1346/2001 against the petitioner, his parents and his brothers and sisters.
PW-1 has further stated that the respondent got the petitioner agreed for
withdrawal of the said divorce case but she did not withdraw her criminal
case, rather she filed a maintenance case against the petitioner. PW-1 has
stated that after being driven out of the said quarter, PW-1 is residing in
Vidhyapati Nagar, in a rented house of one Rajendra Choudhary. PW-1
has stated that his wife, the respondent, went to jail and his son was left
alone, after that PW-1 again started residing in quarter no. 642 but he
continued to hold the rented quarter. PW-1 has stated that since he could
not attend his duty by leaving his child alone in the house, he shifted his
son in a hostel in Begusarai.
53. PW-1 has further stated that the respondent and her father,
mother and brother came to the rented house of PW-1 and on several
occasions, they assaulted PW-1 for that Misc. case No. 1420/02, u/s 107
Cr.P.C and one complaint case No. bearing 857/02 were instituted.
Further, another criminal case vide C/1 case No. 564/03 was instituted
against the respondent and her parental family for snatching some
2026:JHHC:25952-DB
25
documents and files from PW-1 and also for assaulting PW-1 and his
father.
54. PW-1 has further stated that during evidences of Misc. Case No.
37/02, on the day of examination of Nawal Kishor Prasad Singh, PW-1
and his father Ram Lagan Singh were assaulted with club and for that GR
Case No. 1257/03 was instituted and as the father of PW-1 was suffering
from Bronchitis and he suffered injury on his chest and mouth, his
condition aggravated and after long illness, ultimately the father of PW-1
expired. PW-1 has stated that the respondent filed an application before
the Ld. SDJM, Jamshedpur on 2.7.2003 alleging obscene behavior and
kidnapping against PW-1 and others, but the said case was found false
after police investigation. The respondent instituted another case vide GR
Case No. 1214/03 at Begusarai but in that case, PW1 and others were
acquitted. PW-1 has further stated that the respondent, the father of
respondent, the mother of respondent and the brother of respondent
forcibly entered into the house of PW-1 situated at Begusarai and they
committed dacoity in the house of PW-1 for which C/1 case No. 1420/2002
was instituted. PW-1 has filed another case against respondent for giving
false evidence in the Court vide C/1 case No. 1274/06. PW-1 has stated
that the respondent, her mother and her brother has got their ration card
and voter card issued on the address of the quarter of PW-1 without
consent of PW-1. PW-1 has stated that the respondent married her brother
Manoranjan Singh with Sonam Dutta, dauther of Rakesh Dutta from the
said quarter in February, 2007 and subsequently they all murdered the said
Sonam Dutta on 30.06.2007 for which Sidhgora PS Case No. 93/2007 was
registered and now they are facing trial in Sessions Trial No. 23/08 and the
father and the brother and the respondent herself were in jail custody in the
2026:JHHC:25952-DB
26
said case. PW-1 has further stated that the respondent has also taken the
ornaments mortgaged by the father of PW-1 and the respondent is bound
to return the same to PW-1 under Section 27 of the Hindu Marriage Act.
PW-1 has stated that he has fear of life from the respondent and as such he
has filed this case.
55. During cross examination at para-38, PW-1 has stated that he had
earlier filed Matrimonial Suit No. 49/01 and, in that suit, the respondent
had appeared but she filed written statement after filing a false case against
PW-1. PW-1 has further stated that he has filed altogether five cases
against the respondent. Further in Para-43, PW-1 has stated that he has got
one Suraj Kumar admitted in TMH by allowing deduction from his own
salary and PW-1 knew that the said Suraj Kumar has filed Misc. Case
66/03 against the respondent. Further in Para-48 of his cross-examination,
PW-1 has stated that he is residing in Baridih quarter from April 2008 but
subsequently, PW-1 has stated that he is not residing in the said quarter
from March 2001. PW-1 has further been cross-examined on recall on
21.06.2017. In Para-1 of his further cross-examination, PW-1 has stated
that PW-1 or his father had not given any written information to the
respondent that PW-1 was marrying with the respondent for looking after
his children form his first wife nor the respondent has given any such
written undertaking. In para-6 of his further cross-examination, PW-1 has
stated that both children of his first wife have done their schooling from
DAV School, Begusarai and they have passed matriculation examination
from the said school and the son has done his college education from Delhi
whereas the daughter has done her college education from Begusarai and
subsequently, both the children have done their engineering from
Bangalore. PW-1 has further stated that after marriage of PW-1 and the
2026:JHHC:25952-DB
27
respondent, they firstly went to their house situated at Begusarai as the
marriage was solemnized from the said house. Thereafter, the respondent
was taken to the native village and subsequently, both of them came to
Jamshedpur and started residing at Jamshedpur in a rented house at Namda
Basti.
56. In Para-11 of his further cross-examination, PW-1 has stated that
he does not remember whether he had earlier filed any case under Section
9 of the Hindu Marriage Act but he had sent a legal notice to the respondent
but he did not remember the date. In Para-22, PW-1 has stated that the
respondent wife has filed a case under Section 498A of IPC against him in
2001 at Jamshedpur and again in 2003 at Begusarai. In Para-31, PW-1 has
stated that he has informed his company that his quarter is being used by
the respondent for wrongful activities and PW-1 would try to file the said
letter in the record.
57. PW-2 has stated that he knows petitioner Ganesh Kumar Singh
and his family very well. PW-2 has further stated that prior to his marriage
with the respondent the petitioner was earlier married with one Anju Devi,
in the year 1990 but the said Anju Devi died accidentally in 1994 leaving
behind her two children, one son and one daughter. After death of his first
wife, the two children of the petitioner from his first wife, were residing in
their maternal home with their maternal Grandfather, Chandra Bhushan
Prasad Singh, though the entire expenses of their maintenance were
incurred by the petitioner. PW-2 has further stated that the fact about the
first marriage of the petitioner and his two children from the first marriage
were disclosed to the respondent, her father and her brother with the
consent of the respondent that she would look after the children as their
2026:JHHC:25952-DB
28
mother, the marriage of the petitioner with the respondent was solemnized
on 18.02.1999.
58. PW-2 has stated that after the marriage in the year 1999, the
petitioner and the respondent started residing as husband and wife at
workers flat No. 642, Baridih, a male child was born out of their wedlock
on 05.12.1999. PW-2 has further stated that with the consent of the
respondent, the parents of the respondent always demanded money from
the petitioner and they had taken about Rs.50,000/-from PW-1 and they
were further demanded Rs. 1 lakh from the petitioner for opening STD
Booth for their son Maniranjan Kumar Singh and when the petitioner
refused to pay the said money, the respondent, her parents and brothers
assaulted the petitioner and driven out him from quarter No. 642, Baridih
and they also took away ornaments belonging to the first wife of the
petitioner worth Rs. 1,50,000/. PW-2 has further stated that since March
2001, PW-1 is living in a rented house at Vidhyapati Nagar. PW-2 has
further stated that earlier the petitioner has filed Matrimonial Suit No.
49/01 against the respondent in which respondent appeared but prior to
filling her written statement in the said case the respondent wife filed a
dowry case against the petitioner and his family members. PW-2 has
further stated that after filing her written statement in Matrimonial Suit No.
49/01, the respondent got the petitioner agreed for withdrawal of the said
case but she did not withdraw her criminal case, rather she filed a
maintenance case against the petitioner. PW. 2 has further stated that the
respondent, her parents and brother had assaulted the petitioner on many
occasions in his rented house, in the court premises, as well as on roads
and for that the petitioner has filed several cases against them and there is
a case in Begusarai as well. PW-2 has stated that father of the petitioner,
2026:JHHC:25952-DB
29
namely, Ram Lagan Singh had die. It is further stated in the examination
in chief of PW-2 that the respondent-wife got her brother Manoranjan
Kumar Singh married from the said quarter without consent of the
petitioner and subsequently, PW-2 heard that the respondent with her
parents and her brother had murdered the sister-in-law of the respondent
and in that case, the respondent and her father are on bail. PW-2 has further
stated that the respondent used to assault the children of the petitioner born
from his first wife and she did not provide them proper food and, hence,
after some time, the petitioner sent the children to their maternal grand
father's home. PW-2 has further stated that after the respondent went to
jail, the petitioner went in the said quarter to look after his younger son but
again the petitioner came to the rented house and he has kept his younger
son Satyam Kumar in the hostel at Begusarai. PW-2 has stated that the
petitioner has fear of life from the respondent and as such he has filed this
case.
In his cross-examination, PW-2 has stated that he knows the
petitioner for last 25 to 30 years. In para-33, this witness has stated that
he knew that the petitioner was residing in Baridih Quarter till October
2008. Further in Para-37, PW-2 has stated that the petitioner are four
brothers. PW-2 has further stated that it is true that petitioner has filed
Guardian Ship case No. 02/2009 for custody of his son-Satyam. This
witness has further stated that two brothers of petitioners reside at
Begusarai.
59. PW-3, Bande Shankar Singh, in his examination-in- chief filed
on affidavit has reiterated the facts stated by the petitioner, PW-1 and in
gist, this witness has stated that the respondent was demanding Rs. 1 lakh
from the petitioner for opening STD Booth for his brother and when the
2026:JHHC:25952-DB
30
petitioner did not pay the said amount, the petitioner was assaulted by the
respondent, her parents and her brother. In May 2001, the petitioner was
driven out from his quarter situated at Baridih. This witness has also stated
about the different cases filed between the parties.
In his cross-examination, PW-3 has stated that he knows the
petitioner Ganesh Singh since the year 1983. This witness has further
stated that earlier two children of the petitioner born from his first wife
were residing and studying at Jamshedpur but this witness does not know
the name of the school. PW-3 has further stated in his cross-examination
that the petitioner is working in Tata Steel Company since 1983.
60. On behalf of the respondent, the respondent herself, her father
and two other witnesses have been examined.
61. In her deposition, the respondent, DW-1, has denied all the
allegation of torture and desertion leveled by the petitioner and in her
examination -in-chief, DW-1 has stated that it is the respondent wife, who
has suffered cruelty in her matrimonial home and the petitioner by
suppressing all these facts have firstly filed Matrimonial Suit No. 49/01,
which was dismissed as withdrawn without leave to file fresh suit and
subsequently, after 7 years, this suit was filed by the petitioner on the same
ground.
62. In her cross-examination, DW-1 has stated that she does not
remember the exact date, month and year, when her husband left her and
her son in the said quarter and went away. In para-34, DW1 has stated that
she had never given any legal notice to her husband for leaving her and
her son. DW-1 has further denied the fact that the voter card of her father
and her brother contains the address of workers quarter no. 642. Further in
para-40 of her cross-examination, DW-1 has stated that marriage of her
2026:JHHC:25952-DB
31
brother Manoranjan Kumar was solemnized from the said quarter in the
year 2007 and she has not taken any permission for the same from her
husband as she was not aware of whereabout of her husband. In para-44,
DW1 has stated that it is true that on 31.10.1999, her father had demanded
Rs. 30,000/- from her husband by writing a letter but DW-1 has stated that
this demand was made for making payment of consideration amount of
wood purchased for the construction of the house of her husband at
Begusarai. Bulk of the cross-examination of DW-1 has been done related
with the cases filed between the parties.
63. DW-2 is Jagarnath Prasad, the father of the respondent and
father-in-law of the petitioner. In his examination-in-chief filed on
affidavit, DW- has stated that his daughter is residing in the same quarter
where she was residing along with her husband and from where the
petitioner has left her and her infant son. DW-2 has further stated that the
petitioner has filed this case suppressing the real facts and earlier also, the
petitioner has filed Matrimonial Suit No.49 of 2001 in which the
respondent appeared and filed her written statement on 07.07.2001 and
thereafter the petitioner filed withdrawal petition on 11.12.2001, seeking
withdrawal of the said suit with leave to file fresh suit. But the learned
court, although allowed the withdrawal of the case but did not give leave
for filing fresh suit and the petitioner has filed this fresh suit for divorce
by concealing this fact.
64. DW-2 has further stated that the respondent was married with the
petitioner on 18.02.1999 and after the marriage, the respondent was
severely tortured by the petitioner, physically as well as mentally, and the
respondent was not even provided proper food and subsequently the
petitioner left the respondent in the said quarter and went away. DW-2 has
2026:JHHC:25952-DB
32
denied all the allegation of torture and cruelty leveled against the
respondent.
In his cross-examination, DW-2 has stated that it is true that he
has written letters to his son-in-law, the petitioner, and to his daughter, the
respondent; separately demanding money but DW-2 has stated that he has
demanded the money as he had purchased the wood for construction of the
house of the petitioner at Begusarai.
65. DW-3 is Geeta Devi. In her examination-in-chief filed on
affidavit, DW-3 has stated that the respondent still wants to lead her
conjugal life with the petitioner but the petitioner has left her and thereby
tortured her physically and mentally and the respondent is still waiting for
the petitioner to come and join her in her matrimonial home. DW-3 has
stated that it is the petitioner who has tortured the respondent for demand
of dowry. DW-3 has further stated that the petitioner is involved in murder
of the "Bhabhi" of the respondent and further the petitioner has sexually
exploited other women on the pretext of marry her.
In her cross-examination, DW-3 has stated that she has deposed
from the side of the respondent in Guardianship Case No.02 of 2009 as
well. DW-3 has further stated that the respondent Anita Singh is known to
her since 2007 and DW-3 could not say about the relation between the
petitioner and respondent prior to 2007.
66. DW-4 is Jamuna Das. In her examination-in-chief filed on
affidavit, DW-4 has stated the same facts as stated by the DW-3. At para-
2, this witness has stated that the respondent-Anita Devi wants to live with
the petitioner. At para-9, this witness has stated that the petitioner has
assaulted the respondent in the Court premises for which a criminal case
being G.R. No.1256/2003 was instituted in which the petitioner has been
2026:JHHC:25952-DB
33
convicted for a period of three months by the Court of learned ADG-2. At
para-10 DW4 has stated that the petitioner has confined the respondent in
a room and assaulted her for which the respondent gave complaint to the
local police.
At para-15 of her cross-examination, DW4 has stated that she is an
illiterate lady and what was written in her evidence on oath was not read
out to her. At para-19 this witness has stated that she did not go to the
house of the respondent. In para-21 of her cross-examination, DW 4 has
stated that she does not know as to when the marriage of the respondent
was solemnized and she also does not know as when her son was born.
67. Thus, from scrutiny of the evidence adduced on behalf of the
petitioner, it is evident that earlier the appellant-husband had filed a suit
for divorce against the respondent but the said suit was dismissed as
withdrawn at the instance of the appellant-husband. Thereafter, several
criminal cases were filed by them against each other.
68. The appellant-husband has pleaded before the learned Family
Court that the respondent-wife has criminal antecedent as she had been
convicted in a criminal case being Sessions Trial No.23/2008 for allegedly
committing murder of her sister-in-law (Bhabhi) whereas the learned
Counsel for respondent-wife in the instant appeal has submitted that she
was later acquitted in the said criminal case vide order/judgment dated
27.01.2018 passed by a Division Bench of this Court in Criminal Appeal
(DB) No.702 of 2009.
69. The appellant-husband has further alleged that the respondent-
wife had started torturing upon the children born out of the wedlock of his
first wife but on scrutinizing the evidence it has come on record that the
2026:JHHC:25952-DB
34
children of the first wife of the appellant-husband were residing at their
maternal grandfather’s place at Begusarai and not at Jamshedpur. In
addition to that, the appellant-husband did not produce his children from
the first wife as witness to corroborate the factum of torture.
70. Thus, from the testimony of the appellant husband it is evident
that he has filed the suit for dissolution of marriage on the ground of
cruelty and desertion, therefore it would be apt to discuss herein the
element of cruelty and desertion.
71. It needs to refer herein the definition of ‘cruelty’ as has been
defined by Hon’ble Apex Court in the judgment rendered in Dr. N.G.
Dastane Vs. Mrs. S. Dastane [(1975) 2 SCC 326], wherein it has been
held that the Court is to enquire as to whether the charge as cruelty, is of
such a character, as to cause in the mind of the petitioner, a reasonable
apprehension that, it will be harmful or injurious for him to live with the
respondent.
72. The cruelty has also been defined in the case of Shobha Rani
Vs. Madhukar Reddi [(1988) 1 SCC 105], wherein the wife alleged that
the husband and his parents demanded dowry. The Hon’ble Apex Court
emphasized that “cruelty” can have no fixed definition.
73. According to the Hon’ble Apex Court, “cruelty” is the “conduct
in relation to or in respect of matrimonial conduct in respect of
matrimonial duties and obligations”. It is the conduct which adversely
affects the spouse. Such cruelty can be either “mental” or “physical”,
intentional or unintentional. For example, unintentionally waking your
spouse up in the middle of the night may be mental cruelty; intention is
not an essential element of cruelty but it may be present. Physical cruelty
is less ambiguous and more “a question of fact and degree.”
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74. The Hon’ble Apex Court has further observed therein that while
dealing with such complaints of cruelty that it is important for the Court
to not search for a standard in life, since cruelty in one case may not be
cruelty in another case. What must be considered include the kind of life
the parties are used to, “their economic and social conditions”, and the
“culture and human values to which they attach importance.”
75. 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.
76. In V. Bhagat vs. D. Bhagat (Mrs.), (1994)1 SCC 337, the wife
alleged in her written statement that her husband was suffering from
“mental problems and paranoid disorder”. The wife’s lawyer also
levelled allegations of “lunacy” and “insanity” against the husband and
his family while he was conducting cross-examination. The Hon’ble
Apex Court held these allegations against the husband to constitute
“cruelty”.
77. In Vijay Kumar Ramchandra Bhate v. Neela Vijay Kumar
Bhate, (2003)6 SCC 334 the Hon’ble Apex Court has observed by taking
into consideration the allegations levelled by the husband in his written
statement that his wife was “unchaste” and had indecent familiarity with
a person outside wedlock and that his wife was having an extramarital
affair. These allegations, given the context of an educated Indian woman,
were held to constitute “cruelty” itself.
78. 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
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36
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.
79. “Cruelty” has an inseparable nexus with human conduct and is
always dependent on social strata or milieu to which parties belong, their
ways of life, relationship, temperaments and emotions that are conditioned
by their social status, reference be made to the judgment rendered by the
Hon’ble Apex Court in the case Vishwanath Agrawal v. Sarla
Vishwanath Agrawal, (2012) 7 SCC 288.
80. The Hon’ble Apex Court in the case of K. Srinivas Rao v. D.A.
Deepa, (2013) 5 SCC 226 has observed that cruelty is evident where one
spouse so treats other and manifests such feelings in other, as to cause
reasonable apprehension in mind of other that it would be harmful or
injurious to reside with other spouse and cruelty may be physical or
mental. It has further been observed that staying together under the same
roof is not a precondition for mental cruelty. Spouse can cause mental
cruelty by his or her conduct even while he or she is not staying under the
same roof.
81. In matrimonial relationship cruelty means absence of mutual
respect and understanding between spouses which embitters relationship.
Sometimes it may take form of violence, or at times may just be an attitude
or approach. Silence in some situations may also amount to cruelty
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37
reference be made to the case of Ravi Kumar v. Julmidevi, (2010) 4 SCC
476.
82. For considering dissolution of marriage at instance of a spouse
who alleges mental cruelty, result of such mental cruelty must be such that
it is not possible to continue with matrimonial relationship reference may
be taken from the judgment rendered by the Hon’ble Apex Court in the
case of Joydeep Majumdar v. Bharti Jaiswal Majumdar, (supra).
83. Further, the word ‘cruelty’ is used relation to human conduct or
human behaviour. It is the conduct in relation to or in respect of
matrimonial duties and obligations. It is a course of conduct and one which
is adversely affecting the other. The cruelty may be mental or physical,
intentional or unintentional. There may be cases where the conduct
complained of itself is bad enough and per se unlawful or illegal. Then the
impact or the injurious effect on the other spouse need not be enquired
into or considered. In such cases, the cruelty will be established if the
conduct itself is proved or admitted, reference in this regard be made to
the judgment rendered by the Hon’ble Apex Court in the case of Vinita
Saxena v. Pankaj Pandit, (2006) 3 SCC 778.
84. Further, in the case of Manish Tyagi v. Deepak Kumar, (2010)
4 SCC 339 the Hon’ble Apex Court has categorically observed that to
constitute ‘cruelty’, it is enough that conduct of one of parties is so
abnormal and below accepted norm that another spouse could not
reasonable be expected to put up with it. Conduct is no longer required to
be so atrociously abominable which would cause reasonable apprehension
that it would be harmful of injurious to continue cohabitation with another
spouse. Hence, it is not necessary to establish physical violence.
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38
Continued ill-treatment, cessation of marital intercourse, studied neglect,
indifference may lead to inference of cruelty.
85. Thus, the word “cruelty” under Section 13(1) (i-a) of the Act has
got no static connotation, and therefore, gives a very wide discretion to the
Court to apply it liberally and contextually. What is cruelty in one case
may not be the same for another and has to be applied from person to
person while taking note of the attending circumstances. Harm or injury
to health, reputation, the working-career or the like, would-be important
considerations in determining whether the conduct of the defending
spouse amounts to cruelty. It has to be shown that the defending spouse
has treated him with cruelty to cause reasonable apprehension in his/her
mind that it will be harmful or injurious to live with the contesting spouse.
86. At this juncture, it would be apt to refer the definition of
desertion 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.
87. Further, it requires to refer herein that the word ‘desertion’ has
been given in Explanation to Section 13 (1) wherein it has been stated that
“the expression desertion means the desertion of the petitioner by the other
party to the marriage without reasonable cause and without the consent or
against the wish of such party, and includes the willful neglect of the
petitioner by the other party to the marriage, and its grammatical variations
and cognate expressions shall be construed accordingly.
88. 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
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39
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.
89. Rayden on Divorce which is a standard work on the subject at p.
128 (6
th
Edn.) has summarised the case-law on the subject in these terms:
“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.”
90. The legal position has been admirably summarised in paras-453
and 454 at pp. 241 to 243 of Halsbury's Laws of England (3
rd
Edn.), Vol.
12, in the following words:
“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.
91. 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
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40
allowance to a wife whom he has abandoned is no answer to a charge of
desertion.
92. 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 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.
93. 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.
94. 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.
95. The Hon'ble Apex Court in Debananda Tamuli vs. Kakumoni
Kataky, (2022) 5 SCC 459 has considered the definition of ‘desertion’ on
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41
the basis of the judgment rendered by the Hon'ble Apex Court in Lachman
Utamchand Kirpalani v. Meena, AIR 1964 SC 40 .
96. It has been observed 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 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
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.”
97. Now adverting to the factual aspect, it is evident from the
impugned order that the allegations specific to the ground of alleged
cruelty and desertion has been made by petitioner/plaintiff-husband.
98. In the instant case as per pleadings of both the parties the
marriage between them as per Hindu rites is admitted fact. Further the birth
of a child out of the said wedlock is also admitted fact.
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42
99. Further, the petition has been filed by the petitioner/appellant
before learned Family Court for a decree of divorce on the ground of
cruelty and desertion wherein he made allegation against the
respondent/wife that he has been subjected to cruelty at the hands of the
respondent. In Para-8 of his examination-in-chief, appellant-husband has
stated that after birth of a male child from the respondent, her parents and
her brother demanded money from him. In para-9, he has stated that a
friend of her father-in-law, namely, Ramakant Singh had produced letters
of his father-in-law, namely, Jagarnath Prasad Singh, mother-in-law,
namely, Pushpa Lata Devi and brother-in-law, namely, Manoranjan Singh
on different occasions and got Rs.50,000/- from him. At para-10 he has
stated that her mother-in-law used to obtain money by pledging gold items,
and would then ask for money to redeem the pledged items. At para-11 he
has stated that the respondent and her parents started demanding money of
Rs. 1 lakh from him to open a STD booth in the name of his brother-in-
law Manorajan Singh and when he refused to give money, they started
torturing him and even brutally assaulted him when he went for his duty.
At para-12, the appellant has specifically stated that after assaulting him
all threw him out of the quarter at Baridih, and threatened that he should
return only when demand of one lakh rupees would be fulfilled. At para-
13 the appellant-husband has stated that due to torture of the respondent
he had filed a suit for divorce being Matrimonial Suit No.49 of 2001 and
after getting notice of that suit the respondent-wife had filed a criminal
case of dowry and domestic violence being Case No.1346/2001. At para-
14, the appellant-husband has stated that on compromise the said
matrimonial suit was dismissed as withdrawn but later on the respondent-
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43
wife had filed a case for maintenance being Misc. Case No.37 of 2002
against him.
100. The allegation levelled by the appellant-husband in the plaint is
that the respondent and her family members always demanded money
from him and on refusal they assaulted and tortured him. It is also alleged
that in-laws of the appellant-husband demanded Rs. One lakh for opening
a STD booth for his brother-in-law and on refusal by him the dispute
cropped up in between both the parties and thereafter bitterness of
matrimonial relationship of husband and wife started deteriorating
severely by the litigating attitude. The respondent used to lodge one after
another criminal cases on false grounds only to humiliate her husband and
she lodged a false case under the provision of Dowry Prohibition Act and
other sections of I.P.C. and, thus, humiliated him. They brutally assaulted
the appellant-husband and compelled him to leave the staff quarter no.642
at Baridih and living separately in a rented quarter at Vidyapati Nagar. But
even after they always approached the appellant-husband at his rented
quarter for demand of money and on refusal, also assaulted him due to
which a criminal case was lodged by the appellant-husband against them.
101. The respondent Anita Devi in para-37 of her cross examination
has stated that when her husband (the appellant) has deserted her and even
stopped to give any penny for her maintenance then her parents came and
started residing with her. At para-41, the respondent has admitted that she
had not taken permission from her husband (the appellant) to get
solemnized her brother’s marriage at that quarter nor had invited him
because she simply did not know where he was living. At para-44 the
respondent had admitted that her father demanded Rs.30000/- from her
2026:JHHC:25952-DB
44
husband (the petitioner) as her father had purchased the wood for
constructing a house by the petitioner at Begusarai. At para-52 of her
cross-examination, the respondent has stated that her husband had
conspired to implicate her and her parents in a criminal case which was
instituted due to death of her sister-in-law, namely, Sonam Dutta.
102. Herein, as per the facts of the case it has come in the evidence of
the appellant-husband that he was brutally assaulted by the respondent-
wife and her family members at Jamshedpur due to non-fulfillment of
demand of money and he was compelled to leave the staff quarter no.642
in which he was residing. The appellant-husband has further pleaded that
for mental peace he was compelled to live in a rented quarter at Vidyapati
Nagar.
103. It has also come in the evidence of both the parties that several
criminal cases were filed against each other by both the parties. On one
hand, the appellant-husband has stated that he was brutally assaulted by
the respondent-wife and her family members as he could not fulfil the
demand of money to them whereas the respondent-wife has stated that the
respondent had left the staff quarter and started living in a rented house at
Vidyapati Nagar as he wanted to get rid of her and thus, he has deserted
her. Even though, the respondent-wife is still willing to live with the
appellant-husband.
104. The defendant has categorically stated that she does not desire
divorce and she is still willing to live with her husband (the appellant). She
has denied ever treating the plaintiff with cruelty, asserting that she has
consistently endeavoured to continue her marital life. She has alleged that
the plaintiff has deserted her and even stopped to give any penny for
2026:JHHC:25952-DB
45
maintenance of her child and herself and she was compelled to lodge
criminal cases against him solely due to his conduct. She has denied
instituting false criminal cases, asserting that such cases were necessitated
by the petitioner’s behaviour.
105. The learned Family Court has considered the entire factual aspect
as well as settled position of law and after going through the evidence on
record has explained in detail about absence of element of cruelty and
desertion. For ready reference, the relevant paragraph thereof is being
quoted as under:
“16. ISSUE No. III & IV: The incidences of cruelty as pleaded by the
petitioner husband in the plaint can be divided broadly in two parts.
The first part is related with the incidences which occurred prior to
filing of Matrimonial Suit No.49 of 2001 and the second part are
related with the incidences which occurred after the withdrawal of
Matrimonial Suit No.49 of 2001. As per the petitioner, the second part
of incidences gave fresh cause of action for this suit. The first
pleadings related with the cruelty appears in Paras-8 to 10 of the
plaint, wherein the petitioner has pleaded that when after the
marriage, the petitioner and respondent started residing at workers
flat, Baridih, Jamshedpur along with two minor children born out of
wedlock of the first wife, the respondent mercilessly tortured her steps
children causing immense mental agony to the petitioner and when
the torture upon the two children went beyond limit, the petitioner was
compelled to send the children to their maternal grandfather's house
at Pokhariya, Begusarai. In reply to this allegation, the respondent
wife has stated that the fact of first marriage and children from first
marriage of the petitioner was not known to the respondent and after
the marriage, the respondent came to Jamshedpur along with the
petitioner and firstly they resided in the rented house at Namda Basti
but after three months, they shifted to the allotted quarter of the
petitioner bearing quarter No.642 Baridih Jamshedpur. The
respondent wife has stated that the children of first wife of the
petitioner never stayed with her in the said quarter. In his
examination-in-chief, the petitioner himself, PW-1 has not stated that
after the marriage with respondent, the children of his first wife
started to live with them at quarter No.642 rather in Para-3, PW-1
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46
has stated that after sudden accidental death of his first wife, his
children from the first wife were kept and nurtured by his father-in-
law Chandra Bhusan Prasad, on the expense of the petitioner. Thus,
in his examination-in-chief, the petitioner, the PW-1 has not stated
that the respondent tortured the children of his first wife at
Jamshedpur. Further in para-6 of his further cross-examination done
on 21.06.2017, PW-1 has stated that schooling of her children from
the first wife was done from DAV School at Begusarai, both the
children passed their matriculation examination from DAV School
Begusarai and after that the boy did his college education from Delhi
whereas the girl has done college education from Begusarai and both
the children did their engineering courses from Banglore. In fact, in
his entire deposition PW-1 has nowhere his children from his wife
ever resided at Jamshedpur along with the respondent. Further it is
also pertinent to mention here that PW-1 in para-47 of his further
cross-examination has stated that the dates of birth of his children
from first wife are 29.06.1991 and 07.03.1993 respectively. In other
words, at the time of filing of this case the elder child was aged about
17 years and the younger was aged about 15 years and during
pendancy of this case both of them have become major but the
petitioner has not examined any of two children to support this
pleading that they were tortured by the respondent. Further, the
petitioner has not even examined his said father-in-law, Chandra
Bhusan Prasad, the maternal grandfather of the children to whom the
children were sent after the alleged torture. Thus, the pleadings of the
petitioner that his children from the first wife were tortured
mercilessly by the respondent has not been supported with any
evidence.
17. The second allegation which have been leveled in paragraphs-11
to 14 of the plaint, wherein the petitioner has alleged that after the
children of his first wife were sent to their maternal grandfather's
house, the parents and the brother of the respondent came in the
aforesaid flat started residing there, causing annoyance to the
petitioner and they started extorting money from the petitioner.
Further the respondent pressurized the petitioner to transfer the land
purchased by the petitioner at Begusarai in his own name and in the
name of his elder son. In support of these pleadings, PW-1, the
petitioner, in paras-8 to 11 of his examination-in-chief has stated that
the petitioner was blessed with a son on 05.12.1999, out of his wedlock
with the respondent and after that the mother of the respondent
namely Pusplata Devi, the father of the respondent namely Jagarnath
2026:JHHC:25952-DB
47
Prasad and the brother of the respondent Manoranjan Singh started
demanding money from the petitioner by personally coming to
Jamshedpur and by writing letters. PW-1 has further stated that one
Ramakant Singh, who is friend of his father-in-law and who was
working in electricity department, Jamshedpur, used to give him the
demand letters of the mother, father and brother of the respondent and
thereby his in-laws had taken about Rs.50,000/- from the respondent
and they further demanded Rs.1,00,000/- for opening STD booth for
the brother of the respondent and when PW-1 refused he was
assaulted by them and he was not provided proper food and finally
PW-1 was driven out of the said quarter. PW-1 has filed the photocopy
of certified copy of the said letter which was exhibited in
Miscellaneous Case No. 37 of 2002 dated 31.10.1999 and in the said
letter, the father of the respondent has made demand of Rs.30,000/-.
The father of the respondent, Jagarnath Prasad Singh, DW-2, in Para-
41 of his cross-examination has admitted this letter to be written by
him but in para-40 of his cross-examination, has explained that he has
demanded the said money for purchasing wood for the father of the
petitioner. DW-1, the respondent in para-44 of her cross-examination
has also admitted that her father has demanded Rs.30,000/-from her
husband by writing letter on 31.10.1999 but DW-1 has also stated that
this money was demanded as his father has purchased wood for the
house of her husband which was constructed at Begusarai. Apart from
the aforesaid letter dated 31.10.1999, the petitioner has not brought
any other letter making any demand of money by the respondent or
her father or her mother or her brother. The solitary evidence of
demanding money by the father of the respondent from the petitioner
is this letter dated 31.10.1999 and the respondent herself as well as
her father has explained that this demand was made in lieu of the
wood purchased by the father of the respondent for the house of the
petitioner which was constructed at Begusarai. The petitioner has not
examined the said Ramakant Singh in this case who was allegedly the
middle man who communicated this demand to the petitioner. Further
there is no evidence on the record that the petitioner ever made any
payment to the father of the respondent. The respondent on the other
hand has contended that in March 2001, when the petitioner left the
respondent and her minor child, the mother of the respondent came to
Jamshedpur to look after the respondent and her child as the
respondent and her child were left alone in the said quarter. It is
further pertinent to mention here that prior to filing of earlier divorce
suit vide Matrimonial Suit No. 49 of 2001, the petitioner has not filed
2026:JHHC:25952-DB
48
any complaint or any information to any authority he regarding the
alleged assault of the petitioner by the respondent or brother and
parents. In fact, it is admitted case of the petitioner that the petitioner
himself has withdrawn the Matrimonial suit No.49 of 2001_on the
ground the petitioner has not collected sufficient evidence for the said
suit. Thus, in view of these facts, this court finds that the first part of
the pleadings of the petitioner related with the alleged atrocities and
cruelty committed to the children of the petitioner from the first wife
and on the petitioner himself has not been proved by the petitioner.
18. The second part of the allegation is related with the incidences
after withdrawal of Matrimonial suit No. 49 of 2001. The petitioner
has pleaded in paras-29 to 26 of the plaint that the respondent wife
has filed several halve cases against the petitioner and further the
respondent wife and her parents and her brother has assaulted the
petitioner and his father on many occasions. From perusal of the
pleadings, it transpires that after withdrawal of the said matrimonial
suit, the respondent wife filed miscellaneous case No.37 of 20112
claiming maintenance for herself and her minor son. She further filed
petition u/s 307 of CrPC vide Misc. case No.74 of 2002 and she further
lodged a criminal case at Begusarai vide GR Case No.1234 of 2003.
It is pertinent to mention here that prior to withdrawal of Matrimonial
Suit No. 49 of 2001, the respondent wife has filed complain case
No.636 of 2001 on 16.06.2001 which was subsequently registered as
Sitdhgora PS Case No.94 of 2001 against the petitioner alleging
offence u/s 498A of IPC and u/s 3/4 of Dowry Prohibition Act. On the
other hand, the petitioner has also filed several cases against the
respondent. From perusal of the plaint, it is evident that the petitioner
filled a case u's 207 of CrPC against the respondent vide
miscellaneous case No.3420 of 2002. Further another criminal case
vide 0/1 (Case No.564 of 2003 was instituted against the respondent
and others for allegedly assaulting the petitioner and his father in
court campus Again, the father of the petitioner instituted C/1 case
No.1430 of 2002 on 21.30.2002 against the respondent at Begusarai
court and mother case being C/1 Case No.897 of 2002 was instituted
against the respondent by the petitioner for allegedly snatching the
gold ornaments of the petitioner. Another case being C/1 case
No.1374 of 2007 was filed by the petitioner against the respondent at
Jamshedpur. Thus, it is evident from the perusal of the pleadings as
well as documents filed on behalf of the parties that it is not only the
respondent wife who has instituted a criminal case against the
petitioner husband rather the petitioner husband has also instituted
2026:JHHC:25952-DB
49
several criminal cases against the respondent wife and parents, in
fact, the petitioner in pare-39 of his cross-examination has stated that
he hat flied five cases against the respondent. Para-43 of cross-
examination of PW-1 suggest that the petitioner has provided
financial help to one Sarju Kumar who has filed Miscellaneous case
No.66 of 2003 against the respondent. It is further evident that after
withdrawal of the earlier Matrimonial Suit on 14.12.2001, within two
years that is till 2003, the parties have filed several criminal cases
against each other not only at Jamshedpur but at Begusarai as well.
The evidences available on record and the documents filed on behalf
of the parties, shows that the petitioner husband has instituted more
cases than the respondent wife and all these cases were instituted
against each other within two years that is till 2003 and thereafter one
case was filed in 2007 vide C/1 Case No.1374 of 2007 by the petitioner
husband against the respondent wife. These facts clearly shows that
even though the respondent wife has filed criminal cases against the
petitioner husband but the petitioner husband was not lagging behind
and in fact he has filed more cases against the respondent wife. It is
needless to say that in some of these cases, the parties have been
acquitted but in some case cases, they have been convicted. In the
backdrop of the reason for withdrawing the earlier matrimonial suit
that is Mat. Suit No.49 of 2001, wherein the suit was withdrawn by the
petitioner husband for lack of evidence, it appear to this court that the
subsequent cases have been instituted with the purpose of collecting
evidences and therefore this court is of the view that the respondent
wife can not be accused for filing frivolous criminal cases and thereby
causing cruelty upon the petitioner husband because the petitioner
husband has filed more cases during this period.
19. During course of argument, learned counsel for the petitioner has
submitted that the respondent wife has been charge with committing
dowry death of her "Bhabhi" and in fact she has convicted u/s 304B
of IPC in ST Case No.23 of 2008 and she has been sentenced to life
imprisonment. Learned counsel for the petitioner has submitted that
considering the criminal mentality of the respondent wife, it is not safe
for the petitioner to lead his conjugal life with the respondent. No
doubt, the respondent wife has been convicted for the offence u/s 304B
of IPC for the charge of abetting suicide of her "Bhabhi" and she had
been sentenced to undergo life imprisonment and presently she is on
bail as she has preferred criminal appeal before the Hon'ble High
Court but this court is of the view that on this ground alone, the
petitioner husband is not entitled for a decree of divorce because the
2026:JHHC:25952-DB
50
conviction of wife for charges of murder is no ground for divorce and
further more in the fact and circumstances of this case, where
evidently the petitioner husband was not residing with the respondent
wife since the years 2001, it can not be held that the petitioner
husband has the apprehension of danger of life living with the
respondent wife. In fact, since the years 2001 the petitioner is not
residing with the respondent wife and therefore on this score no
decree of divorce can be passed by this court.
20. So far the ground of desertion is concerned, it is own pleadings of
the petitioner that when the alleged atrocities and cruelty of the
respondent wife crossed the limit, the petitioner husband was
compelled to leave quarter No.642 Baridih, Jamshedpur and he
started residing at rented house at Vidyapati Nagar for mental peace.
In other words, it is not the wife who has deserted the petitioner
husband rather it is the petitioner husband who has deserted the
respondent wife. It is admitted case of the parties that the respondent
wife is still living in the same quarter where she was brought by the
petitioner after her marriage and the respondent wife in her evidence
has specifically stated that she is still willing to lead her conjugal life
with the petitioner. The petitioner has no where mentioned the date of
alleged desertion. From the pleadings and evidences adduced on
behalf of the parties, even though the factum of desertion has been
proved as it is admitted that the parties are living apart since 2001
but the evidence shows that the desertion is from the part of the
petitioner husband and not from the respondent wife rather the
respondent wife is still willing to live with the petitioner and
accordingly this court finds that on the ground of desertion also the
petitioner husband is not entitled for divorce.”
106. Thus, from the aforesaid it is evident that the learned Family
Judge has considered the fact that the appellant-husband has miserably
failed to establish the allegation of cruelty and desertion against the
respondent-wife, rather it has come on record that it was the appellant-
husband who had deserted the respondent and started living in a rented
house separately. It has also come on evidence that when the respondent-
wife had been sent to judicial custody in the criminal case being Sessions
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51
Trial No.23/2008, he filed a divorce suit in a very calculated manner with
conspiracy.
107. After discussing in detail on the point of cruelty and desertion, in
view of the judgment of the Hon’ble Apex Court, the learned Family Judge
at para-23, 24 and 25 has held as under:
“23. ISSUE No. VI :- It has been submitted on behalf of the petitioner
that in this case it is the admitted fact that the parties are living apart
since 2001 and there are numbers of litigations between the parties
involving several criminal cases and the circumstances of this case
clearly shows that the marriage of the parties has irretrievable broken
down and on this score alone the decree of divorce may kindly be
passed. This court is of the view that the ground of irretrievable brake
down of marriage is not available for this court to grant any decree
of divorce. Further more although during course of argument the
learned counsel for the petitioner has raised this ground of
irretrievable brake down of marriage but this ground has not been
pleaded in the plaint even during evidence the petitioner has not taken
this ground. it is settled law that court can not make out a new case
which is not pleaded.
24. It is pertinent to mention here that the first divorce suit was filed
by the petitioner husband in the years 2001 and it was withdrawn on
14.12.2001 and thereafter for about seven years, no case of divorce
was filed and only when the respondent wife was in jail custody in
connection with another Sessions case related with dowry death of her
Bhabhi, the petitioner has filed a divorce suit on 03.06.2008 that is
almost about six and half years, though the bulk of criminal cases
between the parties were filed during the years 2002-03 as discussed
above. Section 23 (i)(d) of the Hindu Marriage Act Provides :- Decree
in proceedings.-
(1) In any proceeding under this Act, whether defended or not, if the
court is satisfied that-
(d) there has not been any unnecessary or improper delay in
instituting the proceeding, and.....
In the instant case after withdrawal of the first divorce suit the second
divorce suit has been filed almost after seven years and on the same
ground of cruelty. There is no explanation on behalf of the petitioner
as to why this present suit has been after seven years of withdrawal of
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52
the earlier suit and that too when the petitioner has specifically denied
leave to file fresh suit. This court is of the view that on the ground of
delay also the petitioner is not entitled for any relief. Accordingly,
issue No. VI is decided against the petitioner.
25. It is pertinent to mention that in the heading of her written
statement the respondent wife has mentioned about the counter claim
u/s 9 of the Hindu Marriage Act but no corresponding pleadings has
been made in the body of the written statement and even in the prayer
portion of the written statement, no decree of restitution of conjugal
right has been prayed by the respondent wife rather the respondent
wife has prayed for dismissal of the divorce suit and return to her
streedhan. But regarding streedhan also there is no pleading in the
written statement and even in the evidence of the respondent and her
witnesses, this counter claim has not figured and prayed. Under these
circumstances no relief of counter claim can be granted to the
respondent wife.
26. In view of the findings of this court on all the issues framed in this
suit it is hereby
ORDERED
that this suit is dismissed on contest.
In the facts and circumstances of this case the parties shall bear
their own cost.”
108. Before entering into merit of the case, it needs to mention herein
that the respondent has objected to the maintainability of the present suit
before the learned Family Court on the ground that Matrimonial Suit
No.49 of 2001, filed earlier by the petitioner for the same relief, was
withdrawn without liberty to institute a fresh suit. It is contended that, in
view of Order XXIII Rule 1(4) CPC, the present suit is barred.
109. The learned Family Court has appreciated the aforesaid issue by
framing as issue No. V.
110. In the aforesaid context it needs to refer herein that Order XXIII
Rule 1(4) CPC provides that where a plaintiff withdraws a suit without
permission to file afresh, he is precluded from instituting another suit on
the same cause of action. The provision is intended to prevent multiplicity
2026:JHHC:25952-DB
53
of proceedings and to ensure finality once a party elects to abandon a claim
without reserving liberty. It is admitted that Matrimonial Suit No.49 of
2001 was withdrawn by the petitioner husband without liberty to file a
fresh suit. The present suit seeks the same relief of dissolution of marriage.
111. However, the petitioner has attempted to distinguish the cause of
action by pleading subsequent incidents of cruelty occurring after
withdrawal of the earlier suit. The pleadings suggest that the petitioner
relies upon fresh allegations post-2001 to sustain the present claim. Thus,
while the relief sought is the same, the cause of action is sought to be
differentiated. The crucial test is whether the present suit is founded on the
same cause of action as the earlier suit. If the allegations are confined to
those already pleaded in Matrimonial Suit No.49 of 2001, the bar under
Order XXIII Rule 1(4) CPC would apply. If, however, fresh and distinct
acts of cruelty are alleged to have occurred subsequent to withdrawal, they
may constitute a new cause of action, thereby saving the suit from the bar.
112. Further, in this regard, it is profitable to refer to the provision
contained in Order XXIII Rule 1(4) of CPC, which necessitates that if a
plaintiff abandons a suit or withdraws from a claim without court
permission, they are precluded from filing a fresh suit regarding the same
subject matter or part of the claim. However, the Hon’ble Supreme Court
in the case of Vimlesh Kumari Kulshrestha Vs. Sambhaji Rao reported
in (2008) 5 SCC 58 has held that "High Court was wrong in dismissing
second suit on the ground that it was hit by Order 23 Rule 1(3)(b) merely
because specific permission to file second suit was not obtained, therefore,
Order 23 Rule 1(3)(b) did not apply to the facts and circumstances of the
case.
2026:JHHC:25952-DB
54
113. On the basis of discussion made hereinabove, we are of the
considered view that in the matrimonial cases, cruelty or desertion is often
considered to be a continuing or recurring cause of action. If the second
suit is filed on a fresh cause of action (new acts of cruelty or a fresh period
of desertion) then the subsequent suit is maintainable. Therefore, the bar
under Order XXIII Rule 1(4) of CPC is not applicable in such cases.
114. From the facts of this case, it is clear that the subsequent suit for
granting decree of divorce filed by the appellant shall be considered to be
maintainable as the action of cruelty is often considered to be a continuing
cause of action. In the present set of facts and circumstances of the case,
such cause of action shall also be considered to be a fresh cause of action.
Hence, on the basis of maintainability of subsequent suit, this appeal
preferred against the said suit is also maintainable.
115. Re-adverting to the factual aspect, it is evident that the appellant-
husband has taken the ground of cruelty meted to him by his wife (the
respondent). The petitioner has pleaded in Paras 8-10 of the plaint that the
respondent mercilessly tortured the children born of his first wedlock
while residing at Baridih, Jamshedpur.
116. However, this allegation is wholly unsupported by evidence. In
his own examination-in-chief, PW-1 did not depose that the children ever
resided with the respondent at Quarter No.642, Baridih. On the contrary,
PW-1 admitted that after the accidental death of his first wife, the children
were nurtured by their maternal grandfather, Chandra Bhusan Prasad, at
Pokhariya, Begusarai, with their schooling completed at DAV School,
Begusarai, and subsequent higher education pursued in Delhi, Begusarai,
and Bangalore.
2026:JHHC:25952-DB
55
117. In cross-examination, PW-1 reiterated that the children were
educated outside Jamshedpur and never resided with the respondent. The
petitioner has not examined either of the children, who by the time of trial
had attained majority, nor has he examined the maternal grandfather, who
allegedly sheltered them after the supposed acts of cruelty. Thus, the
allegation of torture upon the step-children remains unsubstantiated.
118. The pleadings of cruelty must be corroborated by cogent
evidence. In matrimonial disputes, mere allegations without supporting
testimony or corroboration cannot be accepted as proof. The petitioner’s
failure to produce the children or their grandfather as witnesses, despite
their availability, creates a fatal lacuna in his case. The Court cannot
presume cruelty in absence of direct or circumstantial evidence. Further,
the respondent wife has consistently stated that she was unaware of the
petitioner’s first marriage and that the children never resided with her at
Jamshedpur. This defence is corroborated by the petitioner’s own
deposition. Hence, the respondent’s version appears credible and
consistent with the record.
119. The petitioner has alleged that after his children from the first
marriage were sent to their maternal grandfather’s house, the parents and
brother of the respondent began residing in his allotted flat at Baridih,
Jamshedpur, causing annoyance and extorting money. He further alleged
that the respondent pressured him to transfer land purchased at Begusarai
in his own name and in the name of his elder son. In support, PW-1
deposed that after the birth of a son on 05.12.1999, the respondent’s
parents and brother demanded money both in person and through letters,
and that about ₹50,000 was taken, with a further demand of ₹1,00,000 for
2026:JHHC:25952-DB
56
opening an STD booth. He also alleged assault and deprivation of food,
culminating in his being driven out of the quarter.
120. The solitary documentary evidence produced is a letter dated
31.10.1999, exhibited in Miscellaneous Case No.37 of 2002, wherein the
respondent’s father demanded ₹30,000. DW-2, the father of the
respondent, admitted authorship of the letter but explained in
cross-examination that the demand was for purchasing wood for the
petitioner’s house at Begusarai. DW-1, the respondent, corroborated this
explanation, stating that the money was sought in connection with
construction of the petitioner’s house. No other letters of demand have
been produced.
121. The petitioner has not examined Ramakant Singh, the alleged
intermediary who delivered the letters, nor has he adduced evidence of
any actual payment made to the respondent’s father. The solitary letter
stands explained by both DW-1 and DW-2 as relating to construction
expenses, and no corroborative material has been brought to establish
extortion or coercion.
122. The respondent has contended that in March 2001, when the
petitioner left her and the minor child, her mother came to Jamshedpur to
care for them. This explanation appears consistent with the circumstances.
Moreover, prior to filing Matrimonial Suit No.49 of 2001, the petitioner
lodged no complaint with any authority regarding alleged assault or
extortion.
123. In view of the foregoing, this Court finds from perusal of the
impugned judgment that the allegations of extortion and coercion by the
respondent’s parents and brother, as pleaded in paras 11-14 of the plaint,
are not proved. The solitary letter dated 31.10.1999 has been satisfactorily
2026:JHHC:25952-DB
57
explained, and no corroborative evidence has been adduced. The
petitioner’s case suffers from material deficiencies, including failure to
examine key witnesses and absence of proof of payment.
124. It is evident from the pleadings and documents that both parties
have resorted to criminal litigation against each other. The respondent
wife instituted proceedings under Section 498A IPC and allied provisions,
while the petitioner husband himself admitted in para-39 of his
cross-examination that he filed five cases against the respondent. Para-43
of his cross-examination further reveals that he provided financial
assistance to one Sarju Kumar, who instituted Miscellaneous Case No.66
of 2003 against the respondent.
125. The record demonstrates that within two years of withdrawal of
Matrimonial Suit No.49 of 2001 (withdrawn on 14.12.2001 for lack of
evidence), both parties filed several criminal cases against each other, not
only at Jamshedpur but also at Begusarai. The petitioner husband, in fact,
instituted more cases than the respondent wife. Thereafter, in 2007, he
filed C/1 Case No.1374 of 2007 against the respondent.
126. It is not disputed that in some of these cases, the parties have
been acquitted, while in others, convictions have been recorded. The
multiplicity of proceedings reflects mutual hostility rather than unilateral
harassment. In the backdrop of the petitioner’s withdrawal of Matrimonial
Suit No.49 of 2001 on the ground of insufficient evidence, it appears that
subsequent criminal cases were instituted with the object of collecting
evidence for matrimonial litigation. This Court is, therefore, of the view
that the respondent wife cannot be accused of filing frivolous criminal
cases amounting to cruelty, since the petitioner himself was equally, if not
more, litigious during the relevant period.
2026:JHHC:25952-DB
58
127. During the course of argument, learned counsel for the petitioner
has urged that the respondent wife, having been convicted under Section
304B IPC in Sessions Trial Case No.23 of 2008 for abetting the dowry
death of her “Bhabhi” and sentenced to life imprisonment, demonstrates a
criminal mentality. It is contended that, in view of such conviction, it is
unsafe for the petitioner to continue his conjugal life with the respondent.
128. No doubt, the respondent wife stands convicted under Section
304B IPC by the Sessions Court and has been sentenced to undergo life
imprisonment. It is also undisputed that she has been acquitted in the
aforesaid case by the High Court in the Cr. Appeal (DB) No. 702 of 2009.
However, matrimonial law does not recognize conviction for a criminal
offence, even of grave nature, as an independent ground for divorce. The
statutory grounds for dissolution of marriage are exhaustively enumerated
under the Hindu Marriage Act, 1955, and conviction under Section 304B
IPC does not fall within the ambit of Section 13 thereof.
129. The petitioner’s reliance upon the respondent’s conviction is
misplaced. The pendency of appeal before the High Court renders the
conviction non-final. More importantly, even assuming the conviction
stands, it does not ipso facto constitute cruelty or any other recognized
matrimonial ground. The petitioner cannot, therefore, seek dissolution of
marriage solely on the basis of the respondent’s criminal conviction. This
Court is of the considered view that the conviction of the respondent-wife
under Section 304B IPC, though serious, does not furnish a valid ground
for divorce under the governing statute.
130. The desertion while, on the other hand, has been defined that if
either of the parties on its own has left the house without any compulsion
2026:JHHC:25952-DB
59
or coercion, then only such type of separation will come under the fold of
desertion.
131. The petitioner has pleaded that owing to the alleged atrocities
and cruelty of the respondent wife, he was compelled to leave Quarter
No.642, Baridih, Jamshedpur, and to reside in a rented house at Vidyapati
Nagar for mental peace. Thus, the petitioner himself admits that it was he
who left the matrimonial home.
132. It is the admitted case of the parties that the respondent wife
continues to reside in the same quarter where she was brought after
marriage. In her evidence, she has specifically stated that she is still
willing to lead her conjugal life with the petitioner. This assertion remains
unshaken in cross-examination.
133. The petitioner has nowhere mentioned the date of alleged
desertion. While the factum of separation since 2001 is admitted, the
essential element of animus deserendi on the part of the respondent-wife
is absent. On the contrary, the evidence demonstrates that the respondent-
wife has consistently expressed willingness to resume cohabitation.
134. Desertion under Section 13(1)(ib) of the Hindu Marriage Act
requires proof that the respondent spouse abandoned the petitioner without
reasonable cause, without consent, and with the intention of permanently
ending cohabitation. In the present case, the evidence shows that it is the
petitioner-husband who deserted the respondent-wife, not vice versa. The
respondent’s willingness to continue conjugal life negates the plea of
desertion.
135. Accordingly, this Court finds that the petitioner-husband is not
entitled to a decree of divorce on the ground of desertion. The separation
2026:JHHC:25952-DB
60
is attributable to the petitioner’s own conduct, and the statutory
requirements of desertion are not satisfied.
136. Thus, from the aforesaid, it is evident that factum of desertion
has not been proved cogently by the appellant/husband, rather it has come
on record that appellant/husband on his own had left the staff quarter
no.642 and residing separately in a rented quarter and thus, deserted the
respondent-wife.
137. This Court, upon a comprehensive discussion of the factual
matrix and the governing legal principles, and having adverted to the
consideration undertaken by the learned Family Judge in the impugned
judgment relevant portions of which have already been referred to and
quoted hereinabove, finds that the issues of cruelty and desertion have
been duly and adequately examined by the learned Family Judge. The
analysis therein reflects conscious appreciation of the evidence, both oral
and documentary, and the conclusions reached cannot be said to suffer
from perversity or error.
138. Upon due consideration of the oral and documentary evidence
adduced by both sides, the learned Family Judge has rightly concluded that
the appellant-husband has miserably failed to establish the statutory
grounds of cruelty and desertion against the respondent-wife. The
pleadings stood uncorroborated, the testimony of PW-1 was inconsistent,
and the essential elements of cruelty and animus deserendi were wholly
absent.
139. The aforesaid reason has led the learned Family Judge to dismiss
the suit.
2026:JHHC:25952-DB
61
140. This Court, on consideration of the finding arrived at by the
learned Family Judge and based upon the aforesaid discussion, is of the
view that the judgment and decree passed by the learned Family Judge on
the point of desertion and cruelty is not coming under the fold of the
perversity, since, the conscious consideration has been made of the
evidences, both ocular and documentary, as would be evident from the
impugned judgment.
141. This Court, therefore, is of the view that the judgment dated
20.07.2017 and the decree signed on 31.07.2017 passed in Original Suit
No.145 of 2008 by the learned Additional Principal Judge, Additional
Family Court, East Singhbhum at Jamshedpur need no interference and,
accordingly, the instant appeal stands dismissed.
142. Pending Interlocutory Application, if any, stands disposed of.
(Sujit Narayan Prasad, J.)
I Agree.
(Sanjay Prasad, J.)
(Sanjay Prasad, J.)
Sudhir
Dated:27/08/2026
Jharkhand High Court, Ranchi
AFR
Uploaded on 28/08/2026.
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