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IN THE HIGH COURT OF JHARKHAND AT RANCHI

F.A. (DB) No. 238 of 2024

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1. Neel Kamal Bauri, aged about 30 years, S/o Tara Pado Bauri, present

R/o 146, Gourango Colony, Phusro, in front of Hari Mandir, P.O.

Phusro Bazar, P.S. Bermo, District Bokaro, Jharkhand; permanent R/o

Village Kumhardaga, P.O. & P.S. Pindrajora, District Bokaro,

Jharkhand

… … Petitioner/Appellant

Versus

Kumari Priya @ Priya Kumari, W/o Neel Kamal Bauri, D/o Manbhul

Bauri, R/o New Murli Nagar, BCCL Colony, P.O. Saraidhela, P.S.

Saraidhela (Steel Gate), Block No.27, District Dhanbad, Jharkhand

… … Respondent/Respondent

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

HON’BLE MR. JUSTICE RAJESH KUMAR

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For the Appellant : Mr. Baibhaw Gahlaut, Advocate

Mr. Subhneet Jha, Advocate

For the Respondent : Mr. Sunil Singh, Advocate

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06/Dated: 5

th

January, 2026

Per Sujit Narayan Prasad, J.

Prayer

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

directed against the Judgment dated 14.08.2024 (Decree signed on

22.08.2024) passed by the learned Principal Judge, Family Court, Bokaro

in Original Suit No.07 of 2022, whereby and whereunder, the petition

filed against the respondent-wife under Section 13(1), (i-a) & (i-b) of the

Hindu Marriage Act, 1955 for dissolution of marriage, has been

dismissed.

Facts

2. The brief facts of the case, which required to be enumerated, needs to

be referred as under:

3. It is the case of the petitioner appellant herein that his marriage with

the respondent was solemnized on 08.03.2019 as per Hindu rites and

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customs. After marriage, they lived together as husband and wife. Out of

their wedlock, they have been blessed with a female child namely Shreya

Kumari, born on 28.11.2019. The respondent is a quarrelsome lady. She

always used to quarrel with his blind father, mother and younger sister

without any reasonable cause and she was saying to kill them by

administering poison. He made a complaint to his Sasural but they instead

of persuading the respondent, used to instigate her to quarrel with them.

She retained his ATM Card, used to withdraw money against his

permission and used to give to her parents. When he came to know about

this fact and protested, she called her father. Her father and brother came

to his house and they threatened to kill him and took the respondent with

them after lodging a written complaint against him by the respondent in

Mahila P.S., Bermo and taking away jewelleries worth Rs.3,00,000/- and

cash amounting Rs.40,000/-. After that on 14.05.2020, he went to his

Sasural and tried to persuade the respondent and her family members and

anyhow brought her to his house on 15.05.2020. On being told her to ask

her father and brother to bring jewelleries worth Rs.3,00,000/- and cash

amounting Rs.40,000/-, on 18.05.2020 her father and two brothers came to

his house and threatened to forget about such jewelleries and money,

otherwise he would be sent behind the bars. On 19.05.2020 she went to

her parental home. After that, he made several efforts to bring her back

but she did not agree, so lastly, he had made a complaint to Mahila Police

Station, Dhanbad. Being fed up due to their such behaviour, he had filed

Original Suit No. 135 of 2020 u/S. 9 of Hindu Marriage Act, 1955 against

the respondent for restitution of conjugal rights, in which during

mediation, she clearly stated that she does not want to lead her conjugal

life with him.

4. She stated that she does want to lead her conjugal life with a labour,

so the mediation was unsettled and lastly, he had withdrawn that suit. She

has deserted him since 19.05.2020 without any rhyme and reason and

there is no relationship of husband and wife between them. There is no

collusion in filing of this suit. Cause of action is said to be arisen on

08.03.2019, when their marriage was solemnized and on 19.05.2020 she

left her matrimonial home.

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5. The respondent by filing written statement has vehemently opposed the

prayer of the petitioner contending, inter-alia, that the instant suit is not

maintainable either in law or in facts. There is no cause of action to file this

suit. Due to non-fulfillment of demand of dowry, she was subjected to

cruelty and torture by various means by the petitioner and even he

assassinated her character. He has no regard, respect and dignity for her and

he always tried to defame her in filthy language and sent message calling

her 'Randi' (prostitutes). Never ever she quarreled with the petitioner or his

family members rather she was assaulted by them for non-fulfillment of

demand of additional dowry. Even after birth of the baby, the petitioner did

not come to see the newly born baby. He never got their baby treated by

doctor during her illness, so she was compelled to return to her parents’

home for treatment of their baby. The petitioner even tried to establish her

as Call Girl, for which she has filed Dhanbad P.S. Case No. 11 of 2022

against the petitioner under Information Technology Act. She called her

father and mother to save her life and made a complaint to Police. The

petitioner is trying to mislead the court only to save his skin. She never ever

denied to lead her conjugal life with the petitioner. The petitioner/husband

used to call his associates in drunken state and pushed his associates in her

room and provided her mobile number to his associate to call her and go to

bed. The petitioner committed torture upon her beyond permissible limit. He

sexually abused her and tortured her mentally and physically, for which she

had filed Dhanbad Cyber PS. Case No. 11 of 2022 against the petitioner.

There is no cause of action in filing of the case.

6. On the basis of the pleadings of the parties, the following issues have been

framed by the learned Family Judge for adjudication of the suit, which are

as follows: -

(i) Is this suit maintainable in its present form?

(ii) Whether the petitioner has valid cause of action for the

suit?

(iii) Whether the respondent (Wife) has subjected the

petitioner (husband) to mental and physical cruelty after

marriage?

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(iv) Whether the respondent (wife) deserted her husband

(petitioner) since last two years prior to filing of the suit and

is entitled to get a Decree of dissolution of marriage on the

basis of Section-13 (1) (ia) (ib) of Hindu Marriage Act,

1955?

(v) Whether the petitioner is entitled to get the relief as

prayed for?

7. The evidences have been made on behalf of both the parties.

Thereafter, the judgment has been passed dismissing the suit filed under

Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955 for a decree of

divorce by the petitioner, appellant herein, which is the subject matter of

the present appeal.

Submission of the learned counsel for the appellant-husband:

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

factual aspect which was available before the learned Family Judge

supported by the evidences adduced on behalf of the appellant/petitioner

has not properly been considered and as such, the judgment impugned is

perverse, hence, not sustainable in the eyes of law.

9. It has been submitted that the respondent-wife is a quarrelsome lady

and without any rhyme and reason used to quarrel with him and his family

members.

10. It has further been submitted that respondent-wife did not discharge

her martial obligations rather she on being instigated by her family

members used to quarrel with him and his family members.

11. It has been contended that in the mediation proceedings, respondent-

wife has flatly refused to live with him. She does not want to lead her

conjugal life with him and she has deserted him since 19.05.2020.

12. It has further been submitted that the issue of cruelty and desertion has

not been taken into consideration in right perspective by the learned

Family Court, hence, the judgment impugned has been passed.

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

grounds, has submitted that the judgment impugned suffers from

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

Submission of the learned counsel for the respondent-wife

14. Per contra, learned counsel for the respondent-wife, while defending

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

impugned judgement. The learned Family Judge has considered the issue

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

evidence has been adduced to establish the issue either of cruelty or

desertion, has dismissed the petition.

15. It has been contended that all the allegations as levelled are false,

baseless, concocted and imaginary.

16. It has also been submitted that the respondent-wife was subjected to

cruelty and torture for non-fulfillment of demand of dowry.

17. 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:

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

through the finding recorded by the learned Family Judge in the impugned

judgment.

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

suit for divorce has been filed on the grounds of cruelty and desertion, i.e.,

by filing an application under Section 13(1) (i-a) (i-b) of the Hindu

Marriage Act, 1955 and accordingly, issues have been framed wherein

primarily issue nos. III and IV pertain to cruelty and desertion.

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

reference, the evidences led on behalf of the parties are being referred as

under:

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List of petitioner(s) witness(s)

P.W.1, Gour Chandra Bauri (cousin of the petitioner)

P.W.2, Kharu Bauri (Uncle of the petitioner)

P.W.3, Neel Kamal Bauri (petitioner himself)

P.W.3, Neel Kamal Bauri, the petitioner himself in his examination-

in-chief on affidavit, has made allegations against the respondent-wife

that she is quarrelsome lady and she on one pretext or other used to

quarrel with his blind father, sick mother and younger sister and she

used to tell him to kill all the three by administering poison. She also

used to misbehave with them. He has further deposed that the parents

of the respondent used to instigate her not to do household work. The

respondent-wife also kept his ATM Card and used to withdraw money

and sent to her father and brother.

He has further deposed that earlier he had filed Original Suit

No.135 of 2020 under Section 9 of the Hindu Marriage Act, 1955 for

restitution of conjugal rights against the respondent. Mediation was

held and during mediation, she refused to continue her conjugal life

with him and also stated that she would not go with him to serve his

blind father and sick mother. She also told that as he was a labour, so

she would not continue her conjugal life with him and the dispute was

not settled.

In his cross-examination, he has deposed that he cannot file

documents relating to mediation. He has also denied that on

14.05.2020, he has assaulted his wife and compelled her to call her

parents. At para-34, he has denied that during his living with the

respondent, he created a fake ID of the respondent and done wrong

work. At para-35, he has voluntarily deposed that the respondent has

an illicit relationship with her younger brother and she has also a

boyfriend.

Other witnesses, i.e., P.W.1 and P.W.2 have deposed on the same

line as has been deposed by P.W.3.

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List of Respondent(s) witness(s)

R.W.-1, Annapurna Devi (mother of respondent)

R.W.2, Manbhul Bauri (father of respondent)

R.W.3, Vivek Kumar Bauri (brother of respondent)

R.W.1, Annapurna Devi (mother of the respondent) has deposed in

her examination-in-chief that after seven months of marriage, the

petitioner started assaulting the respondent and at that time, the respondent

was pregnant of seven months. The petitioner-husband used to enjoy party

in his house and compelled the respondent-wife to cook non-vegetarian

food and he used to assault her. After giving birth of female child on

28.11.2019, he intensified his torture upon the respondent-wife. The

petitioner and his family members brutally assaulted the respondent.

She has further deposed that on 04.06.2020, one Raj Kumar, friend of

the petitioner started sending indecent messages on the WhatsApp of the

respondent. She has further deposed that to defame the respondent, the

petitioner on the basis of Aadhar Card of the respondent, created fake ID

and started torturing her, for which, a complaint was lodged by the

respondent in Cyber Police Station, Dhanbad. In course of investigation,

her complaint was found by the Police to be true. She has denied that the

respondent subjected the petitioner or his parents to cruelty rather the

petitioner himself made bad imputation upon the respondent.

This witness has not been cross-examined on behalf of the petitioner,

as such, evidence of this witness has remained uncontroverted.

R.W.2, Manbhul Bauri (father of the respondent) has also supported

the evidence of R.W.1 and has stated in his examination-in-chief

regarding cruelty done by the petitioner upon the respondent for non-

fulfillment of demand of dowry, assaulted her, created fake ID and

defamed her. This witness has also not been cross-examined on behalf of

the petitioner.

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R.W.3-Vivek Kumar Bauri (brother of the respondent) has also

supported the evidence of both R.W.s 1 and 2 and has deposed in his

examination-in-chief regarding the demand of dowry made by the

petitioner and his family members. He has further deposed that in an

injured condition, the respondent called her family members and it was

the period of lock down and after getting permission from the

Administration, her parents and maternal uncle went to the house of the

petitioner and tried to persuade the petitioner but the petitioner became

violent and bent upon to assault them and started filthy languages against

them.

He has further deposed that the petitioner and his family members

compelled the respondent-wife to leave her matrimonial home. He has

further deposed that the petitioner after using Aadhar Card of the

respondent and after using her ID, uploaded a nude photo of the

respondent and circulated the mobile number of the respondent amongst

his friends, for which, Dhanbad Cyber P.S. Case No.11 of 2022 was

registered and after investigation, it was found that the petitioner created

fake ID after using Aadhar Card and ID of the respondent. He has further

deposed that at the instance of the petitioner, some anti-social elements

entered the room of the respondent and committed wrong with her, for

which, Dhanbad P.S. Case No.7074 of 2022 was registered in which, the

learned Judicial Magistrate has taken cognizance under Sections 376, 511,

307, 406, 147, 148 and 354 of the IPC.

Evidences of RWs are further corroborated by the documentary

evidence adduced on behalf of the respondents, in which, Exhibit-A is

certified copy of order dated 25.08.2022 passed in C.P. Case No.1441 of

2021 in which prima-facie case was made out under Sections 498A and

406 read with Section 34 of the IPC against the petitioner, his mother and

sister.

Exhibit-B is the certified copy of order passed in Original

Maintenance Case No.258 of 2020, in which, the petitioner of this case

was directed to pay Rs.4000/- per month to the respondent of this case and

Rs.3000/- per month to his daughter.

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Exhibit-C is the order-sheet of Dhanbad Cyber P.S. Case No.11 of

2022 along with FIR.

Exhibit-D is the order passed in C.P. Case No.7064 of 2022 filed by

the respondent against the petitioner and others.

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

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

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

of law.

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

respondent has submitted that the judgment has well been considered and

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

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

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

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

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

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

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

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

that if a finding of fact is arrived at by ignoring or excluding relevant

material or by taking into consideration irrelevant material or if the finding

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

incurring the blame of being perverse, then, the finding is rendered infirm in

law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27 of the said judgment

reads as under:

“24. The expression “perverse” has been dealt with in a number of

cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501] this

Court observed that the expression “perverse” means that the findings

of the subordinate authority are not supported by the evidence brought

on record or they are against the law or suffer from the vice of

procedural irregularity.

25. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [AIR

1966 Cal 31] the Court observed that “perverse finding” means a

finding which is not only against the weight of evidence but is

altogether against the evidence itself. In Triveni Rubber &

Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341] the

Court observed that this is not a case where it can be said that the

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

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perverse that no reasonable person would have arrived at those

findings.

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

Court observed that any order made in conscious violation of pleading

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

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

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

against the evidence. In Godfrey v. Godfrey [106 NW 814] the Court

defined “perverse” as turned the wrong way, not right; distorted from

the right; turned away or deviating from what is right, proper, correct,

etc.

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

dictionaries in the following manner:

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

Edn.

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

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

2. Longman Dictionary of Contemporary English, International

Edn.

Perverse.—Deliberately departing from what is normal and

reasonable.

3. The New Oxford Dictionary of English, 1998 Edn.

Perverse.—Law (of a verdict) against the weight of evidence or the

direction of the judge on a point of law.

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

Language (Deluxe Encyclopedic Edn.)

Perverse.—Purposely deviating from accepted or expected

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

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

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

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

evidence.””

24. Herein cruelty has been taken as ground for divorce by the

appellant/petitioner, therefore it would be apt to refer herein the meaning

of the cruelty.

25. The “cruelty” has been interpreted by the Hon’ble Apex Court in the case

of Dr. N.G. Dastane vs. Mrs. S. Dastana, (1975) 2 SCC 326 wherein it

has been laid down that the Court has to enquire, as to whether, the

conduct charge as cruelty, is of such a character, as to cause in the mind of

the petitioner, a reasonable apprehension that, it will be harmful or

injurious for him to live with the respondent.

26. This Court, deems it fit and proper to take into consideration the meaning

of ‘cruelty’ as has been held by the Hon’ble Apex Court in Shobha Rani

v. Madhukar Reddi, (1988)1 SCC 105 wherein the wife alleged that the

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

emphasized that “cruelty” can have no fixed definition.

27. According to the Hon’ble Apex Court, “cruelty” is the “conduct in

relation to or in respect of matrimonial conduct in respect of matrimonial

obligations”. It is the conduct which adversely affects the spouse. Such

cruelty can be either “mental” or “physical”, intentional or unintentional.

For example, unintentionally waking your spouse up in the middle of the

night may be mental cruelty; intention is not an essential element of

cruelty but it may be present. Physical cruelty is less ambiguous and more

“a question of fact and degree.”

28. The Hon’ble Apex Court has further observed therein that while dealing

with such complaints of cruelty it is important for the court to not search

for a standard in life, since cruelty in one case may not be cruelty in

another case. What must be considered include the kind of life the parties

are used to, “their economic and social conditions”, and the “culture and

human values to which they attach importance.”

29. The nature of allegations need not only be illegal conduct such as asking

for dowry. Making allegations against the spouse in the written statement

filed before the court in judicial proceedings may also be held to

constitute cruelty.

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

her written statement that her husband was suffering from “mental

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

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

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

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

31. In Vijaykumar Ramchandra Bhate v. Neela Vijay Kumar Bhate, (2003)6

SCC 334 the Hon’ble Apex Court has observed by taking into

consideration the allegations levelled by the husband in his written

statement that his wife was “unchaste” and had indecent familiarity with a

person outside wedlock and that his wife was having an extramarital

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affair. These allegations, given the context of an educated Indian woman,

were held to constitute “cruelty” itself.

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

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

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

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

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

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

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

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

irritations and normal wear and tear of marriage would not constitute

mental cruelty as a ground for divorce.

33. Since desertion has also been taken as ground therefore,the definition of

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

part of Section 13 which means the desertion of the petitioner by the other

party to the marriage without reasonable cause and without the consent or

against the wish of such party, and includes the willful neglect of the

petitioner by the other party to the marriage.

34. Rayden on Divorce which is a standard work on the subject at p. 128 (6th

Edn.) has summarised the case-law on the subject in these terms:

“Desertion is the separation of one spouse from the other, with an

intention on the part of the deserting spouse of bringing cohabitation

permanently to an end without reasonable cause and without the consent

of the other spouse; but the physical act of departure by one spouse does

not necessarily make that spouse the deserting party.”

The legal position has been admirably summarised in paras-453

and 454 at pp. 241 to 243 of Halsbury's Laws of England (3rd Edn.), Vol.

12, in the following words:

“In its essence desertion means the intentional permanent forsaking

and abandonment of one spouse by the other without that other's consent,

and without reasonable cause. It is a total repudiation of the obligations of

marriage. In view of the large variety of circumstances and of modes of life

involved, the Court has discouraged attempts at defining desertion, there

being no general principle applicable to all cases.

Desertion is not the withdrawal from a place but from a state of

things, for what the law seeks to enforce is the recognition and discharge

of the common obligations of the married state; the state of things may

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usually be termed, for short, ‘the home’. There can be desertion without

previous cohabitation by the parties, or without the marriage having been

consummated. The person who actually withdraws from cohabitation is

not necessarily the deserting party. The fact that a husband makes an

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

desertion.

35. 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.

36. 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.

37. 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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.”

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

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

incorporated by the learned Court in the impugned judgment.

40. Herein, the main ground of cruelty has been taken by the

appellant/plaintiff that, the respondent-wife always used to quarrel with

his blind father, mother and younger sister without any reasonable cause

and she has said to kill them by administering poison, but in order to

substantiate the aforesaid fact, no any material evidence has been put-forth

before the learned Family Court, as such, the said ground, therefore,

cannot be said to be sufficient to prove the ground of cruelty.

41. It needs to refer herein that from perusal of impugned order it is also

evident that learned Family Court has found that the testimony of the R.ws

has fully been substantiated by the documentary evidences adduce on

behalf of the respondent.

42. Further, the learned Family Court has taken note of the order-sheet (Ext-

C) Dhanbad Cyber-PS Case no. 11 of 2022 instituted on the basis of the

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complaint of the wife of the petitioner (appellant herein) and has found

that case was investigated by the Police and allegation of uploading the

semi-nude photo of respondent-wife without her permission on the face-

book by the petitioner, is true.

43. Further from the record, it is evident that the Exhibit-D is the order dated

03.12.2022 passed in C.P. Case No. 7064 of 2022 filed by the

respondent/wife against the petitioner/appellant wherein Magistrate by

his order dated 03.12.2022 has made out a prima facie case under Sections

147, 148 307 811,376 511, 354, 341 & 406 of the IPC against the

petitioner/appellant along with some other accused and the Ext-D has also

been taken into consideration by the learned Family Court.

44. Thus, on the factual aspect aforesaid, it is evident that appellant/husband

has failed to produce any material evidence in order to substantiate his

claim of cruelty against the respondent wife rather it appears on the basis

of discussion made hereinabove that the appellant himself subjected the

respondent to cruelty.

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

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

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

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

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

respondent-wife has left her matrimonial house without any reasonable

cause.

46. Reference of Section 23(1)(a) of the Hindu Marriage Act needs to be

referred herein wherein it has been provided that one cannot be allowed to

take advantage of its own wrong. For ready reference, Section 23(1) reads

as under:

“23. Decree in proceedings.—(1) In any proceeding under this Act,

whether defended or not, if the court is satisfied that

(a) any of the grounds for granting relief exists and the petitioner 2

[except in cases where the relief is sought by him on the ground specified

in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section

5] is not in any way taking advantage of his or her own wrong or disability

for the purpose of such relief, and

2026:JHHC:90-DB

16

(b) where the ground of the petition is the ground specified in clause (i) of

sub-section (1) of section 13, the petitioner has not in any manner been

accessory to or connived at or condoned the act or acts complained of, or

where the ground of the petition is cruelty the petitioner has not in any

manner condoned the cruelty, and

[(bb) when a divorce is sought on the ground of mutual consent, such

consent has not been obtained by force, fraud or undue influence, and]

(c) 4 [the petition (not being a petition presented under section 11)] is not

presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting the

proceeding, and

(e) there is no other legal ground why relief should not be granted, then,

and in such a case, but not otherwise, the court shall decree such relief

accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be the duty

of the court in the first instance, in every case where it is possible so to do

consistently with the nature and circumstances of the case, to make every

endeavour to bring about reconciliation between the parties: 5

[Provided that nothing contained in this sub-section shall apply to any

proceeding wherein relief is sought on any of the grounds specified in

clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of

sub-section (1) of section 13.]

[(3) For the purpose of aiding the court in bringing about such

reconciliation, the court may, if the parties so desire or if the court thinks

it just and proper so to do, adjourn the proceedings for a reasonable

period not exceeding fifteen days and refer the matter to any person named

by the parties in this behalf or to any person nominated by the court if the

parties fail to name any person, with directions to report to the court as to

whether reconciliation can be and has been, effected and the court shall in

disposing of the proceeding have due regard to the report.

(4) In every case where a marriage is dissolved by a decree of divorce, the

court passing the decree shall give a copy thereof free of cost to each of

the parties.]”

47. The applicability of the said provision is very much available herein since

one of the grounds of divorce is desertion and for proving desertion, it is

onus upon the party who is taking the ground for seeking dissolution of

marriage is to substantiate that the party has left the house on her own.

Contrary to that, if the party has been compelled to leave the house on the

basis of cruelty which has been meted out to her then the same will not

come under the fold of desertion and in that view of the matter, Section

23(1)(a) of Hindu Marriage Act is to be made applicable that if the

husband is at wrong, he cannot be allowed to take advantage of its own

wrong.

2026:JHHC:90-DB

17

48. This Court, on consideration of the impugned judgment as also the

material available on record, has found that no such cogent evidence has

been produced by the husband to prove the ground of desertion, as the

ground of desertion has been taken that since 19.05.2020, the respondent-

wife has deserted him without any rhyme and reason and for more than 19

months there is no relationship of husband and wife.

49. The learned Family Court after due appreciation of all the evidences

available on record has come with the finding that it is the

petitioner/appellant who has subjected the respondent/wife to cruelty and

he, ousted her from the matrimonial home and left her in the lurch.

50. The learned Family Judge, on consideration of the issues, has not found

the ground for dissolution of marriage and therefore, dismissed the suit.

51. This Court, based upon the aforesaid discussions, is of the view that the

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

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

instant appeal deserves to be dismissed.

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

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

(Sujit Narayan Prasad, J.)

(Rajesh Kumar, J.)

Dated: 05.01.2026

Rohit/A.F.R.

Uploaded on 12.01.2026