In the High Court at Calcutta

Civil Appellate Jurisdiction

Appellate Side

The Hon’ble Mr. Justice Sabyasachi Bhattacharyya

And

The Hon’ble Mr. Justice Supratim Bhattacharya

F.A. No. 103 of 2023

IA No: CAN 1 of 2023

CAN 2 of 2023

Smt Sarbani Mazumdar @ Sarkar

alias Sarbani Sarkar Mazumdar

Vs.

Sri Prabhat Majumdar alias Pravat Mazumdar

For the appellant : Mr. Surya Prasad Chattopadhyay,

Mr. Arjun Samanta,

Mr. Ankit Chatterjee,

Mr. Trishtrya Mancherji,

Mr. Samudranil Nandi

For the respondent : Ms. Amrita Panja,

Mr. Syed Julfikar Ali,

Ms. Pramita Banerjee

Heard on : 11.12.2025, 18.12.2025

& 23.12.2025

Reserved on : 23.12.2025

Judgment on : 08.01.2026

Sabyasachi Bhattacharyya, J.:-

1. The present appeal has been preferred by the wife against a divorce

decree obtained by the respondent-husband on the ground of

desertion.

2

2. The marriage between the parties was contracted as per Hindu

rites and customs on July 12, 2001 and a son was born of the said

wedlock on October 13, 2003, who has since attained majority.

The husband had previously filed two successive suits for divorce

against the appellant-wife, which were dismissed as withdrawn

respectively in the years 2005 and 2007. The present suit for

divorce was instituted thereafter in the year 2017, on the grounds

of cruelty and desertion. The learned Trial Judge turned down the

ground of cruelty but granted divorce on the ground of desertion,

inter alia holding that the marriage between the parties has broken

down irretrievably.

3. Learned counsel for the appellant contends, by relying on a co-

ordinate Bench judgment in Kamalika Majumdar Nee Das v.

Subhapriya Majumdar, reported at 2025 SCC OnLine Cal 4835 ,

that divorce cannot be granted at the instance of the husband if

the husband himself is guilty of constructive desertion. It is

argued that in the present case, the respondent-husband himself

deserted the appellant-wife and, thus, cannot take advantage of

his own wrong. It is submitted that the husband has not come

with clean hands before the Court.

4. By placing the impugned judgment, it is argued by the appellant

that the learned Trial Judge committed a legal and factual error in

observing that there are sufficient materials for coming to the

conclusion that the wife has caused, by her conduct, desertion to

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the husband and as such there is remote possibility to live

together as husband and wife “with all the anguish in their

respective minds”.

5. Learned counsel submits that irretrievable breakdown of marriage,

by itself, is not a ground for divorce in Indian Law, particularly

under the Hindu Marriage Act. I t is contended that all the

judgments cited by the respondent, the Supreme Court granted

divorce on the ground of irretrievable break down of marriage

under Article 142(1) of the Constitution of India in its discretion,

which provision is not applicable to the Districts Courts or the

High Courts.

6. In the unreported judgment of Samar Bijoy Roy v. Mukul Roy, the

Hon’ble Supreme Court, it is argued, adopted the principle of

irretrievable break down of marriage in the facts and

circumstances of the case, which is argued to be different from the

present case, where the husband has not come with clean hands.

It is reiterated that it was the husband who deserted the wife in

the present case, which is also borne out by the police report

lodged by the husband in the year 2007. Learned counsel for the

appellant/wife argues that the respondent/husband deliberately

abstained from leading conjugal life with the appellant/wife and

deserted the appellant/wife and her son. Thus , there was no

desertion on the part of the appellant-wife at all and the impugned

judgment ought to be set aside.

4

7. In reply, learned counsel for the respondent/husband cites Rakesh

Raman v. Kavita, reported at (2023) 17 SCC 433, where it was held

by the Hon’ble Supreme Court that if the marital relationship

between the parties has broken down irretrievably, it does nothing

but inflict cruelty on both sides and to keep the facade of the

broken marriage alive would be doing injustice to both parties.

The Hon’ble Supreme Court further observed that such a situation

spells cruelty to both parties and comes within the purview of

Section 13(1)(ia) of the Hindu Marriage Act.

8. That apart, learned counsel appearing for the respondent/husband

points out that there were several discrepancies in the stand taken

by the appellant/wife in her pleadings, read in conjunction with

her evidence, which go on to show that no justification for staying

apart from the husband was furnished by the appellant-wife.

9. It is further argued on behalf of the respondent that the

withdrawal of the two previous divorce suits of the respondent does

not imply that there was no desertion on the part of the wife. In

fact, the respondent-husband waited for ten long years after the

dismissal of the last suit in 2007 before instituting the present suit

in 2017. During the entire period, there was no conjugal life led

between the parties, nor was there any effort on the part of the

appellant/wife to resume conjugal relationship. Even D.W.2, the

sister of the appellant-wife, admitted in her evidence that the

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parties last resided together in the year 2007, which corroborates

the stand taken in the written statement by the wife herself.

10. It is argued that in Rinku Baheti v. Sandesh Sharda, reported at

(2025) 3 SCC 686, the Hon’ble Supreme Court passed a divorce

decree on the ground of irretrievable break down of marriage under

Article 142 of the Constitution of India; however, the proposition

laid down in Rakesh Raman (supra)

1

was not distinguished or

overruled.

11. In Samar Bijoy Roy (supra)

2

, it was held by the Hon’ble Supreme

Court that the parties were living separately and the wife was not

able to deny the husband’s claim of prolonged lack of cohabitation,

on which ground divorce was granted. Thus, it is argued that the

learned Trial Judge was justified in passing the impugned

judgment.

12. Upon hearing learned counsel appearing for the parties, this Court

cannot be oblivious to the fact that the cardinal principle in

adjudicating a civil suit is preponderance of probabilities, which is

the yardstick on which the impugned judgment has to be

examined. It is trite law that the appellate court does not interfere

with the judgment of the court of first instance merely because, in

its opinion, a different view is possible on the same set of facts. A

judgment can only be set aside by the appellate court if the same

1. Rakesh Raman v. Kavita, reported at (2023) 17 SCC 433

2. Samar Bijoy Roy v. Mukul Roy

6

is legally wrong or is otherwise vitiated by contravention of any

statute or a patent misappreciation on the evidence record. Seen

from such perspective, the following two issues arise for

consideration before this Court:

(i) Whether the learned Trial Judge was justified in granting a

divorce decree on the ground of desertion;

(ii) Whether the marriage between the parties has broken down

irretrievably; if so, whether such fact can be a ground for

divorce.

13. Since the ground of cruelty, per se, has been turned down by the

learned Trial Judge and not challenged by any cross-objection by

the respondent/husband, the same is a non-issue, apart from the

limited question as to whether irretrievable breakdown of marriage

can come within the purview of cruelty, if otherwise established.

14. Accordingly, this Court proceeds to adjudicate the present appeal

on the following issues:

(i) Whether the learned Trial Judge was justified in

granting a divorce decree on the ground of desertion

15. The appellant/wife admitted in Paragraph No. 13 of her written

statement that the parties have been living separately since the

year 2007. The said fact was corroborated by the evidence of

D.W.2, the sister of the appellant/wife.

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16. Despite several allegations, the appellant/wife has not been able to

prove, by cogent evidence, any act of cruelty on the part of the

husband or any other fact justifying her abstinence from the

company of the respondent/husband at least since the year 2007.

It is an admitted position that the parties are living separately from

the said year. The learned Trial Judge found in the impugned

judgment that the sudden withdrawal of the appellant-wife from

her maternal home was quite unnatural and that the wife never

lodged any complaint of cruelty by the husband. It was admitted

by the wife in her evidence that she had never lodged any

complaint before any authority or law enforcement agency against

the respondent/husband. Also, as rightly observed by the learned

Trial Judge, there is not a scrap of paper on record to show any

complaint having been ever filed by the wife against her husband.

17. The appellant/wife has relied on Kamalika Majumdar Nee Das

(supra)

3

for the argument that the respondent/husband was guilty

of constructive desertion by his own acts, due to which no divorce

decree ought to have been granted against the appellant-wife on

the ground of desertion.

18. However, the facts of Kamalika Majumdar Nee Das (supra)

3

are

completely different from the present case. In the said judgment, it

was observed that in view of the prior conduct of the husband,

3. Kamalika Majumdar Nee Das v. Subhapriya Majumdar , reported at 2025 SCC OnLine

Cal 4835

8

granting a divorce decree in his favour would constitute a grave

miscarriage of justice. It was observed by the Division Bench that

the husband in the said case ha d himself engaged in a

fundamental breach of trust and perpetrated severe initial cruelty

upon the wife, thereby being the principal architect of the marital

distress. It was held in the said report that the husband’s conduct

of deliberate deceit at the outset of the marriage, by suppression of

his prior marriages, was a substantial factor that profoundly

outweighed the alleged cruelty of the wife, when viewed in proper

context. On the ground of such “foundational deceit” concerning

the marital history, it was held that the husband did not come

with clean hands and was not entitled to a decree of divorce.

19. In the present case, however, no such allegation against the

husband has been pleaded or established at all. Thus, the

argument of constructive desertion is a mere moonshine and not

established by any cogent evidence. Moreover, such alleged

constructive desertion was neither pleaded nor proved nor argued

before the learned Trial Judge and cannot be permitted to be taken

for the first time as an afterthought before this Court.

20. It is to be noted further that there is no evidence on record to

establish that the wife had exhibited any animus revertendi at any

time, let alone filing any suit for restitution of conjugal rights.

This, coupled with the utter lack of evidence of any conduct or

cruelty of the husband justifying the long absence of the wife for

9

almost a decade between the withdrawal of the second suit of the

husband in 2007 and the institution of the current suit in the year

2017, clearly shows that the wife had deserted the respondent -

husband without any rhyme or reason, which constitutes desertion

as contemplated in Section 13(1)(ib) of the Hindu Marriage Act.

21. Furthermore, the appellant/wife has failed to prove any animus

decirendi on the part of the husband himself. There is not an iota

of evidence on record to establish that the wife ever tried to return

to her maternal home to lead a regular conjugal life with her

husband. Thus, the allegation of desertion has been proved

against the appellant/wife.

22. Apart from the above, there are several discrepancies in the

pleadings and evidence of the appellant/wife, which go on to

further strengthen the presumption that her attempts to justify the

desertion of her husband were concocted.

23. In Paragraph No.13 of the written statement, for instance, the

appellant/wife stated that the respondent/husband tortured her

physically and mentally and forced her to abort a child. In the

self-same paragraph of the written statement, however, the wife

admitted that the respondent/husband had brought her from her

parental home to Kolkata, where her maternal home is located, for

the purpose of delivery of her only son at the Ramakrishna Mission

Hospital at Tollygunge. The expenses of such treatment were also

admittedly borne by the husband.

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24. Secondly, in the same paragraph, that is, Paragraph No.13, the

wife alleged that the husband never looked after her and her son

and she had to virtually beg for money for her maintenance.

However, in her cross-examination as D.W.1, the appellant/wife

admitted that the husband used to send money for the son,

although such amount was stated to be insufficient.

25. Again, the husband filed Act-VIII Case No. 101 of 2015 before the

learned District Judge of Alipore for custody of his son, then a

minor, which was marked as Exhibit-8 in the suit. A money order

receipt was also marked as Exhibit-9 in the suit, evidencing that

the husband used to send money for his son. Other money order

receipts were also produced by the husband and are part of the

record but, not being formally exhibited, cannot be looked into.

26. Hence, the allegation that the respondent/husband failed to look

after the wife and his son cannot be fully substantiated, at least to

the extent that it justified the wife living away from her husband

for more than a decade.

27. Again, in Paragraph No.13 of the written statement, the wife

alleged that the husband filed the suit for divorce with an ulterior

motive to marry some other lady.

28. Even otherwise, remarriage by one of the spouses after obtaining a

divorce decree is not an offence, in the event the prior marriage did

not work out. That apart, such so-called ulterior motive of the

husband is not substantiated by his conduct in waiting for as long

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as a decade between 2007 and 2017, that is, after withdrawal of

his second suit for divorce and filing the current and third suit in

2017. The husband’s conduct, rather, shows that twice he had to

file divorce suits but had the good sense of withdrawing the same,

in a bid to sustain the marital relationship between the parties.

However, there is nothing on record to show that between the

withdrawal of the second suit and the institution of the current

suit, the wife ever made any attempt to resume conjugal life with

the husband.

29. Thus, such allegation of ulterior motive is also baseless.

30. As such, this Court does not find any perversity or illegality in the

learned Trial Judge having come to one of the plausible

conclusions on a preponderance of probabilities, on the basis of

the materials available on record, to hold that the wife is guilty of

desertion to the husband, thus entitling the husband to a decree of

divorce on the ground of desertion under Section 13(1)(ib) of the

Hindu Marriage Act.

(ii) Whether the marriage between the parties has broken

down irretrievably; if so, whether such fact can be a

ground for divorce

31. As per the above discussion, it cannot be denied that from 2007,

when admittedly the parties went apart, never to return to each

other, there has been no attempt on the part of either of the

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parties, as per the evidence on record, to reunite in conjugal bliss.

Even apart from the fact that for ten years after 2007, before the

filing of the present suit, there was no such attempt, even after the

institution of the suit, about more than 8 years have elapsed ,

during which the spouses are living separately. Thus, for the last

18 years, during which the minor son of the parties attained

majority, there has been no visible sign of the parties having any

intention to reunite. Hence, there is substance in the findings of

the learned Trial Judge to the effect that the marriage between the

parties bas broken down irretrievably.

32. The question which arises, thus, is whether such irretrievable

breakdown of the marriage can furnish a ground for divorce. It is

not in doubt that irretrievable breakdown, by itself, is not a ground

for divorce under the Hindu Marriage Act or, for that matter, under

any Indian Law. However, in the path -breaking judgment of

Rakesh Raman (supra)

4

, the Hon’ble Supreme Court took into

consideration the practical realities of life and incorporated

irretrievable breakdown as a component of cruelty, bringing it

within the fold of Section 13(1)(ia) of the Hindu Marriage Act. It

was observed that irretrievable breakdown of a marriage may not

be a ground for dissolution of a marriage under the Hindu

Marriage Act, but cruelty is.

4. Rakesh Raman v. Kavita, reported at (2023) 17 SCC 433

13

33. In the considered opinion of the Hon’ble Supreme Court in Rakesh

Raman (supra)

4

, a marital relationship which has only become

more bitter and acrimonious over the years does nothing but inflict

cruelty on both the sides. It was further held that to keep the

facade of the broken marriage of the broken marriage alive would

be doing injustice to both parties. In the opinion of the Hon’ble

Supreme Court, a marriage which has broken down irretrievably

spells cruelty to both the parties, as in such a relationship each

spouse is treating the other with cruelty. Conspicuously, it was

therefore held to be a ground for dissolution of marriage under

Section 13(1)(ia) of the Act.

34. The above ratio clearly was an enunciation of t he law that

irretrievable breakdown, although not by itself, but as a

component of cruelty, is a ground for dissolution of marriage under

Section 13(1)(ia) of the Hindu Marriage Act. From the above

narration of the pronouncement of the Supreme Court, it is clear

that the said decision was not rendered under Article 142 of the

Constitution of India, to do complete justice between the parties,

which would have been stated by the Hon’ble Supreme Court if the

intention was to invoke article 142. On the contrary, the intention

of the Hon’ble Supreme Court in Rakesh Raman (supra)

5

was clear,

to the effect that the law was lai d down that irretrievable

breakdown, as a component of cruelty, comes within the fold of

5. Rakesh Raman v. Kavita, reported at (2023) 17 SCC 433

14

Section 13(1)(ia) of the Hindu Marriage Act and tantamounts to

cruelty, justifying the ground of dissolution of marriage. Since the

said issue specifically fell for consideration and was decided by the

Hon’ble Supreme Court, the judgment partakes of the character of

a binding precedent under Article 141 of the Constitution.

35. In Rinku Baheti (supra)

6

, the said proposition was not deviated

from nor overruled, either by implication or expressly.

36. A judgment is only to be treated to be a precedent for the ratio

which is laid down in the facts and circumstances of that case, on

the issues which were argued specifically and decided by the court

in the said case. It is well-settled that a judgment cannot be taken

as a precedent for any derivative ratio, which can be indirectly

deduced from the original pronouncement, but is a precedent only

for the actual proposition of law laid down on the facts of the case.

In such context, the Hon’ble Supreme Court, in Rinku Baheti

(supra)

6

, was dealing with a transfer application under Section 25

of the Code of Civil Procedure and not on the issue wh ether

irretrievable breakdown is a ground of divorce.

37. While considering such application, the Hon’ble Supreme Court

examined the question as to whether in such an application, a

divorce could be granted under Article 142 of the Constitution of

India. Thus, the factual premise and the perspective of Rinku

Baheti (supra)

6

were completely different from the issue at hand in

6. Rinku Baheti v. Sandesh Sharda, reported at (2025) 3 SCC 686

15

the present case. While so adjudicating, the Hon’ble Supreme

Court took into consideration various judgments and, while

specifically mentioning several cases where it was stated that the

power under Article 142(1) of the Constitution of India was

exercised, notably, while discussing Rakesh Raman (supra)

7

, it was

not specifically stated by the Hon’ble Supreme Court in Rinku

Baheti (supra)

8

that it had, in Rakesh Raman (supra)

7

, granted

divorce under Article 142. The silence of the Hon’ble Supreme

Court as regards under which provision Rakesh Raman (supra)

9

was rendered, as opposed to the other cases in which it was

specifically held that Article 142 was invoked, makes it abundantly

clear that the Hon’ble Supreme Court did not deviate from the

proposition laid down in Rakesh Raman (supra)

7

under Article 141

of the Constitution of India insofar as irretrievable breakdown of

marriage as a ground for divorce under Section 13(1)(ia) of the

Hindu Marriage Act is concerned.

38. Hence, after Rakesh Raman (supra)

7

, it is the law of the land that

irretrievable breakdown of marriage, if established, comes in as a

component of cruelty within the ambit of Section 13(1)(ia) of the

Hindu Marriage Act, being cruelty by the parties to each other, and

entitling the parties to a decree of divorce.

7. Rakesh Raman v. Kavita, reported at (2023) 17 SCC 433

8. Rinku Baheti v. Sandesh Sharda, reported at (2025) 3 SCC 686

16

39. Another aspect of the matter cannot be totally overlooked,

although not dealt with in Rakesh Raman (supra)

9

. In the said

report, the Hon’ble Supreme Court was considering irretrievable

breakdown in the context of cruelty. However, on a careful reading

of the line of judgments passed by the Hon’ble Supreme Court in

recent times, it cannot be denied that the clear trend of the Apex

Court’s view is to dissolve a marriage, albeit under Article 142 of

the Constitution, to do complete justice between the parties where

the marriage has irretrievably broken down. Thus, taking a

pragmatic view, it cannot be gainsaid that the consistent judicial

trend has been to honour the differences between the parties and

not compel them to stick to each other despite acrimony having

built up by long and continuous severance of the matrimonial tie.

Seen from such perspective, irretrievable breakdown of marriage

between the parties not only entails cruelty but also substantiates

the ground of desertion. In fact, irretrievable breakdown of

marriage for a prolonged period between the parties has more

elements of desertion than cruelty, since the parties have, for all

practical purposes, deserted each other without any intention to

restore conjugal life between themselves.

40. Viewed in the factual backdrop of the present case, thus, the

ground of desertion was also established by the irretrievable

breakdown of marriage between the present parties for a long

period of about 18 years.

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41. Accordingly, this Court is of the opinion that, within the limited

context of an appeal, there is no scope of interference with the

exercise of judicial discretion by the learned Trial Judge on the

basis of the materials available before the said court, by accepting

one of the plausible views on preponderance of probabilities,

thereby granting divorce on the ground of desertion.

CONCLUSION

42. In view of the above discussions, seen through the lens of an

appellate court, this Court finds no legal or factual error and/or

perversity on the part of the learned Trial Judge in granting a

divorce on the ground of desertion, by taking into account the fact

that the marriage between the parties have broken down beyond

repair. Moreover, the only son of the parties has also attained

majority a few years back, which further dilutes the justification

for sustaining a dead marriage. Accordingly, the appeal fails.

43. Hence, FA No. 103 of 2023 is dismissed on contest, thereby

affirming the impugned judgment and decree dated March 4, 2023

passed by the learned Additional District Judge, Second Court at

Krishnanagar, District: Nadia in Matrimonial Suit No. 370 of 2017,

and decreeing the said divorce suit, granting a decree of divorce in

favour of the respondent/husband against the appellant/wife.

44. There will be no order as to costs.

45. Interim orders, if any, stand vacated.

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46. Consequentially, CAN 1 of 2023 and CAN 2 of 2023 are disposed of

as well.

47. It is made clear that nothing in the above judgment shall create

any impediment on the part of the parties, if otherwise entitled to

in law, to apply for permanent alimony in the jurisdictional court.

48. A formal decree be drawn up accordingly.

(Sabyasachi Bhattacharyya, J.)

I agree.

(Supratim Bhattacharya, J.)