Jharkhand High Court
Niraj Kumar Singh vs Rashmi Rani Singh on 5 May, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:13504-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No.159 of 2022
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Niraj Kumar Singh, aged about 51 years, son of late Bedanand Singh,
resident of Vill+PO- Pakoriya, PS-Sambhuganj Dist.-Banka presently near
Soren Petrol Pump, in front of Kundani Agency, Chak Misharbandh, P.O.,
P.S. and District-Deoghar ....... ... Appellant
Versus
Rashmi Rani Singh, aged about 45 years, wife of Niraj Kumar Singh,
daughter of Gopal Prasad Singh, presently residing at Village+P.O.
Choutham, P.S.-Choutham, District-Khagaria, Bihar
... ... 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 : Ms. Kehkashan Afsheen, Advocate
For the Respondent : Mr. Lakhan Chandra Roy, Advocate
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C.A.V on 22. 04.2025 Pronounced on 05/05/2025
Per Sujit Narayan Prasad, J.
The instant appeal under section 19(1) of the Family Courts Act, 1984 is directed against the judgment dated 14.12.2021 and the decree dated 10.01.2022 passed in Original Suit No.280 of 2017 by the learned Principal Judge, Family Court, Deoghar (in short, Family Judge) whereby and whereunder the petition filed under section 13(1) (ia) of the Hindu Marriage Act, 1955 by the appellant-husband against the respondent-wife has been dismissed.
2. 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 marriage between the parties was solemnized on 2.6.1996 at village-Choutha, according to Hindu Rites and Custom. After the marriage the respondent-wife went to her matrimonial home and 2025:JHHC:13504-DB started to lead her conjugal life with the appellant-husband. The marriage was consummated and one daughter, namely, Akansha Kumari @ Shishu (aged about 19 years) and one son Shivam Kumar (aged about 13 years) were born out of their wedlock.
(ii) The appellant and respondent lived happily for ten years thereafter respondent started torturing the appellant-husband in various ways with cruelty and she never treated him as husband and in spite of all sort of torturing committed by her, he ignored all the things and wanted to maintain sweet and harmonial relationship with her but she did not amend her cruel behaviour with him
(iii) The father of appellant in his life time at his own income purchased three kathas of land in the name of the respondent by registered sale deed vide no. 2350, S.N.P 1506 dated 31.7.1999 from Nani Gopal Jha in Mouja Chak Shri Mishr Bndh in S.P. Plot no. 78 J, B. No. 9/2 and one Katha purchased on 18.1.2001 in the name of the respondent Vide Sale deed no. 3257 Serial no. 3451 in mouja Rampur Plot no. 304(B) area 1504 Sq. Feet and one katha on 23.11.2002 in mouja Rampur area 3000 Sq. Feet from Nagendranath Chakraborti and Ors vide Sale deed no. 3131. The father of apellant also purchased the land in the name of Sweta Devi wife of Purushottam Singh, who is brother of the appellant on 27.12.2004 vide Sale deed no. 3989 and one Katha in the name of Rashmi Singh wife of Narottam Kumar Singh, who is the brother of the appellant on 24.12.1996 vide Sale deed no. 3802.
(iv) The father of appellant wanted to make partition of the purchased land between his sons, namely, Purshottam Singh, Narottam Singh 2 2025:JHHC:13504-DB and Niraj Kumar Singh (appellant herein) but the respondent did not agree for the same and being aggrieved from the proposal of her father-in-law. The respondent started quarreling with her husband and after taking all the ornaments went to her parents' house at village- Choutham alongwith her chidlren in the month of January 2017 and since then she is residing at her parental home.
(v) The appellant tried his level best to resolve the disputes and went several times to house of the respondent but she did not agree for the same. The life of the appellant become hail due to ill behavior of his wife.
(vi) There is no chance of restoration of his conjugal life. The respondent has lodged a criminal case u/s 498A IPC against the appellant and his all-family members bearing case no. G.R. 1108/2017 arising out of Choutham P.S. Case no. 74 of 2017. The Police made enquiry and found the allegation false.
3. The case of the respondent-wife as per the written statement needs to refer herein which is being quoted as under:
(i) The respondent appeared in the proceeding before the learned Family Judge and filed the written statement broadly denying the allegations in the plaint.
(ii) The factum of their marriage and birth of child is admitted in the written statement. The respondent has also denied allegation of the appellant of cruelty. She alleged that to save his skin the appellant has made the allegation of cruelty against her. It is also stated by her that the appellant himself subjected extreme cruelty to her and create situation in which she has to compel to leave her matrimonial home 3 2025:JHHC:13504-DB along with her children. She further stated that just after the marriage when she went to her matrimonial home the appellant started demanding dowry in the form of Hero Honda motorcycle and a Golden chain and when she showed her inability to fulfil the demand she was tortured and lastly on 17.1.2017 returned back to her parental home and since then she is residing there.
(iii) It is further stated that she and her family members made several efforts to reconcile the matter and maintain the marital tie but it is the appellant who never maintained his liabilities towards his wife and children. She partly accepted the claim of the appellant that some land was purchased in her name but it is stated that the said land was purchased from her money which was available to her as 'Stridhan' given by her parents and relatives at the time of her marriage.
(iv) She denied the allegation of the appellant that she was not agreed for the partition of the purchased land. In this regard, her contention was that she is the absolute and sole owner of the purchased land because that land was purchased from her money and also denied this allegation that she went to her parental house after taking all the ornaments but she claimed that she was the sole owner of that ornament which was given to her at the time of her marriage by her parents and she has given a petition to keep the same safely.
(v) She also denied the allegation of the appellant that he has made several efforts to pacify the matter and went several times to his matrimonial home to resolve the disputes rather the real fact is that 4 2025:JHHC:13504-DB the appellant never approached to OP when she went back to be parental home.
(vi) The respondent-wife admitted this fact that she is presently residing at her parental home with her children because the offfence of the appellant-husband committed to her. The respondent also made allegation that the appellant has illicit relation with his bhabhi and her sister. The respondent also stated that due to ill behavior and ill treatment committed with her, she filed a criminal case against her husband which is under trial.
(vii) It is further stated that the respondent has also filed a maintenance case against her husband bearing Maintenance Case no. 85/2017 which is also pending. It is further stated that the claim of the appellant that he has been deserted by his wife is totally wrong rather he has deserted his wife and children. She further stated has she is ready to go to her matrimonial home along with her children and ready to start her conjugal life with her husband and on the above grounds it is prayed that the suit is liable to be dismissed.
4. Learned Family Judge, after institution of the said case, taking in to consideration of the pleading of the parties particularly plaint and written statement, has formulated the issues and has decided the lis by refusing to grant divorce to the petitioner/appellant.
5. 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:
6. Ms. Kehkashan Afsheen, the learned counsel appearing for the appellant-husband has taken the following grounds: 5
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(i) There is an error in the impugned judgment, since, each and every aspect of the matter has not be taken into consideration based upon the documentary evidences as well as ocular evidences.
(ii) The element of cruelty and desertion has been found to be there if the evidences adduced on behalf of the appellant-husband will be taken in to consideration but without appreciating the same properly the learned Family Judge has come to the finding by holding that no element either of cruelty or desertion 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 the cruelty as also she is living separately and, as such, both the grounds are available as would be evident from the evidence adduced on behalf of the appellant-husband, but the same has not been taken into consideration.
7. The learned counsel, based upon the aforesaid ground, has submitted that the impugned judgment and decree, therefore, needs interference said to be perverse.
Submission of behalf of the respondent-wife:
8. Mr. Lakhan Chandra Roy, the learned counsel appearing for the respondent-wife has taken the following grounds to defend the impugned judgment:
(i) The learned Family Judge has committed no error in passing the impugned judgment and decree reason being that the interpretation of the word "cruelty and desertion" as has been interpreted by the Hon'ble Apex Court has been taken 6 2025:JHHC:13504-DB into consideration in right perspective and thereafter assessing the evidence adduced on that count the learned Family Judge has come to conclusion that neither the element of cruelty nor the desertion is available, as such, it is incorrect on part of the appellant to take the ground that there is no consideration of the material evidence adduced on behalf of the appellant-husband.
(ii) The learned counsel has further submitted that the ground for cruelty is not available since the demand of dowry has been proved by the wife during course of evidence by adducing the witnesses as RW2 and RW3, who are the daughter and son of the appellant who has fully supported the reason for ousting the respondent-wife and subjecting her to torture and ultimately supported the case of desertion of her mother kicking out their mother from the house.
(iii) The learned counsel has submitted that since the daughter and son both have negated the ground of cruelty and desertion which has been taken in to consideration by the learned Family Judge while passing the impugned judgment and, as such, the same cannot be said to suffer from an error if the testimony of these witnesses and other material exhibits will be taken into consideration.
9. The learned counsel appearing for the respondent-wife, based upon the aforesaid grounds, has submitted that the impugned judgment therefore need not to be interfere with.
7
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10. We have heard the learned counsels appearing for the parties, gone through the Trial Court Records, as also the impugned judgment, the testimonies of the witnesses and the documents exhibited therein.
11. The learned Family Judge has formulated altogether six issues, for ready reference the same are being quoted hereinbelow:
i) Whether the suit as framed is maintainable in its present form?
ii) Whether there is a valid cause of action?
iii) Whether the respondent has deserted the Petitioner without any reasonable cause ?
iv) Whether the respondent has committed cruelty upon the Petitioner ?
v) Whether the petitioner is entitled for dissolution of marriage on the grounds of cruelty and desertion ?
vi) Any other relief/ reliefs Petitioner is entitled to?
12. The issue pertaining to ground for divorce is by formulating a specific issue whether the plaintiff is entitled for dissolution of marriage on the ground of cruelty and desertion as issue no.5.
13. The issue no.5 has been dealt with along with the issue nos.2, 3 and 4.
14. The learned Family Judge has also considered the evidence adduced on behalf of the respondent along with the documentary witnesses which have been exhibited for deciding the issues involved in Original Suit No.280 of 2017.
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15. 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 both the parties wherein the element of cruelty and desertion has been shown by the plaintiff which has been reverted by the respondent- wife.
16. During the trial, four witnesses have been examined on behalf of the appellant-husband who himself has been examined PW1.
17. The respondent-wife has also examined four witnesses on her behalf including her son as RW3 and daughter as RW2. The respondent- wife has herself examined as RW4.
18. In his examination on oath, the appellant-husband has narrated entire things as pleaded in the plaint about his marriage with the respondent and out of the said wedlock one daughter, namely, Akansha Kumari @ Shishu and one son, namely, Shivam Kumar were born. He has stated about the purchasing of land by his father jointly in the name of the respondent-wife and his Bhabhi and when his father wished to partition the said land among all the family members, the respondent-wife started quarrelling with him. He tried to pacify the matter but the respondent threatened to implicate them in false cases and lastly, left the matrimonial home on her own will along with their children and started residing in her parental home. His father and mother died due to said mental trauma and even in their 'Shradh' she never participated nor came back to her matrimonial house.
In cross-examination, the appellant-husband admitted that he is residing with his brother in a house situated at the plot which was 9 2025:JHHC:13504-DB purchased by his father. He denied the allegation that the said land was purchased by his father from the money which was brought by the respondent-wife as stridhan. He admitted the fact that the respondent-wife has filed a case for maintenance against him at Khagaria (Bihar). He has denied the allegation that he is having illicit relation with his Bhabhi and her sister. He has further denied the allegation that he has forcibly occupied the land which is registered in the name of his wife. He has admitted the fact that to pacify the matter between them, a "Panchayati" was convened but the respondent-wife is not ready to live with him. He further stated that he does not want to keep the respondent with him as he has apprehension of threat of life at the hands of the respondent-wife. He admitted the fact that he and the respondent lived together till January 2017 as husband and wife.
Other witnesses examined on behalf of the appellant-husband is formal in nature who are near relatives and acquainted both the parties. They have corroborated the fact as narrated by the appellant and admitted the fact that the appellant and the respondent are living separately.
19. On the other hand, the respondent-wife as RW4 has admitted the factum of marriage with the appellant and born of children from the said wedlock. She has narrated the entire things as pleaded in her written statement. She has stated that the appellant and his family members started demanding dowry in the shape of a motorcycle and golden chain and on non-fulfillment she has been tortured by her husband and inlaws physically and mentally. She was deprived of food, medicine and daily necessity of life and her inlaws has attempted to kill her but she any how saved her life and left her matrimonial home along with her children. She has stated that 10 2025:JHHC:13504-DB due to that reason, she filed a criminal case against his husband for demand of dowry and attempt of murder under sections 498-A, 307,384, 363, 379, 314, 326, 504, 120B/34 of the IPC and section 27 of the Arms Act along with Section 3/4 of the Dowry Prohibition Act which is pending. She stated that since her husband has deserted her and her children and did not provide a single penny, as such, she filed a maintenance case against his husband, which is also pending. She also stated that she has filed a Title (D) Suit against her husband which is now pending. She alleged that the appellant-husband has illicit relation with his Bhabhi and her sister and due to that reason, he does not want to keep her with him and she was driven out by her husband from her matrimonial home.
In her cross-examination, she has admitted the fact of filing several cases against the appellant-husband and the fact that she is residing separately from the appellant in her parental home since 2016.
In their examination-on-oath, the daughter (RW2) and son (RW3) of the parties have stated about the cruel behaviour of the appellant and his family members due to non-fulfillment of demand of dowry. They have stated about the fact of purchase of land from the money of their mother and the fact of illicit relation of the appellant with his Bhabhi and her sister. They have stated that their father has arranged his second marriage.
In the cross-examination, both these witnesses have stated that their mother has no source of income and the land in question was purchased with the help of their maternal grandfather. They have admitted the fact that they lived with their parents till 2016 at Deoghar. 11
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20. The learned Family Judge has appreciated the entire facts and evidence and has come to the conclusion that the appellant-husband has failed to make the ground either cruelty or desertion and, as such, has dismissed the suit which is under challenge in the instant appeal.
21. The fact about filing of suit on the ground of cruelty and desertion is admitted one as per the evidences adduced on behalf of both the parties.
22. The appellant-husband has tried to establish the element of cruelty and desertion at the hands of the respondent-wife.
23. The respondent-wife has adduced evidence for the purpose of negating the ground of cruelty and desertion, rather she has taken the ground of cruelty at the hands of her husband as also kicking out from her matrimonial home and, as such, the element of desertion cannot be said to be there.
24. The appellant-husband all along has alleged the issue of cruelty which he was subjecting to by his wife and in order to establish the same the evidences has been laid as has been referred hereinabove.
25. It needs to refer herein that two children have taken birth from the wedlock of the appellant and the respondent, both have been examined as RW2 and RW3.
26. This Court has gone through the evidence of RW2 and RW3 and found wherefrom that both the daughter and son, RW2 and RW3 adduced on behalf of the wife, have fully supported the fact that how their mother has been subjected to cruelty by making demand of dowry leading to mental and physical torture. Therefore, in consequence a case was instituted under sections 498-A, 307,384, 363, 379, 314, 326, 504, 12 2025:JHHC:13504-DB 120B/34 of the IPC and section 27 of the Arms Act along with Section 3/4 of the Dowry Prohibition Act.
27. The case of maintenance under section 125 Cr.P.C has also been filed against the appellant-husband. The element of cruelty has fully been supported by both RW2(daughter) and RW3(son).
28. So far as issue of desertion is concerned, it has been stated by them that their mother has been forced to leave the house on account of physical and mental torture due to non-fulfillment of demand of dowry. Both the witnesses have thoroughly been cross-examined.
29. We have gone through the cross-examination part and found that both the witnesses have remained consistent on the issue of making out cruelty to their mother and forcing her to leave the house.
30. 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 13 2025:JHHC:13504-DB 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.
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. 14
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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."
31. The ground for divorce has been taken on the ground of cruelty and desertion. The "cruelty" has been interpreted by the Hon'ble Apex Court in the case of Dr. N.G. Dastane vs. Mrs. S. Dastana, (1975) 2 SCC 326 wherein it has been laid down that the Court has to enquire, as to whether, the conduct charge as cruelty, is of such a character, as to cause in the mind of the petitioner, a reasonable apprehension that, it will be harmful or injurious for him to live with the respondent.
32. 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 appellant-husband and his parents demanded dowry. The Hon'ble Apex Court emphasized that "cruelty" can have no fixed definition.
33. 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 15 2025:JHHC:13504-DB 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."
34. 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."
35. 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.
36. 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".
37. In Vijaykumar Ramchandra Bhate v. Neela Vijay Kumar Bhate, (2003)6 SCC 334 the Hon‟ble Apex Court has observed by taking into consideration the allegations levelled by the husband in his written statement that his wife was "unchaste" and had indecent familiarity with a person outside wedlock and that his wife was having an extramarital affair. These allegations, given the context of an educated Indian woman, were held to constitute "cruelty" itself.
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38. 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.
39. It is, thus, evident that the Hon'ble Apex Court in the recent judgment passed in Joydeep Majumdar v. Bharti Jaiswal Majumdar (supra) has been pleased to lay down 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.
40. 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. 17
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41. 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."
42. 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.
43. Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.
44. 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 18 2025:JHHC:13504-DB 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.
45. 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.
46. 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.
47. Recently also, the Hon'ble Apex Court in Debananda Tamuli vs. Kakumoni Kataky, (2022) 5 SCC 459 has considered the definition of 'desertion' on the basis of the judgment rendered by the Hon'ble Apex Court in Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40 which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that 'desertion' means the intentional abandonment of one spouse by the other without the consent of 19 2025:JHHC:13504-DB 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."
48. 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.
49. It is evident from the interpretation of the word cruelty that the same is to be considered on different parameters depending upon the material if available on record.
50. The appellant-husband although has taken the ground of cruelty meted to him by his wife but, we after taking into consideration the evidence of the daughter and son who have been examined as RW2 and RW3 respectively have not supported the element of cruelty rather they 20 2025:JHHC:13504-DB have stated that their mother has been subjected to cruelty not only by their father rather other members of in-laws of her matrimonial house due to which she was forced to leave the house along with them.
51. 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 or coercion, then only such type of separation will come under the fold of desertion. But what we have seen from the evidence of the son and the daughter it cannot be said and to arrive at a conclusion that the respondent- wife had herself left the matrimonial house, rather, she was forced to leave the house due to mental and physical torture.
52. This Court, therefore, is of the view that neither the element of cruelty nor desertion is available to the petitioner/appellant after taking into consideration the testimony of the witnesses together, particularly, the testimony of the daughter and son.
53. This Court after discussing the aforesaid factual aspect along with the legal position and adverting to the consideration made by the learned Family Judge in the impugned judgment has found therefrom that the issue of element of cruelty and desertion has well been considered along with the evidence of the daughter and son. The learned Family Judge on consideration of the evidence, both ocular and documentary, has come to conclusion that the respondent-wife was subjected to cruelty meted out due to demand of dowry meeting to mental and physical torture due to which she was forced to leave her matrimonial house.
54. The aforesaid reason has led the learned Family Judge to dismiss the suit.
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55. 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 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.
56. This Court, therefore, is of the view that the judgment dated 14.12.2021 and the decree dated 10.01.2022 passed in Original Suit No.280 of 2017 by the learned Family Judge need no interference and, accordingly, the instant appeal stands dismissed.
57. Pending I.As, if any, stands disposed of.
(Sujit Narayan Prasad, J.) I Agree.
(Rajesh Kumar, J.) (Rajesh Kumar, J.) Sudhir Dated:05/05/2025 Jharkhand High Court, Ranchi AFR 22