Jharkhand High Court
Nutan Kumari vs Pankaj Kumar on 1 December, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
2025:JHHC:36058-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 179 of 2023
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Nutan Kumari, Aged about- 34 Years, W/o Pankaj Kumar, D/o Dhananjay
Kumar, Resident of Village Bangachha, Harnaut, P.O. Telmar, P.S. Telmar,
District- Nalanda, Bihar. At present resident of Village Bangachha,
Harnaut, P.O. Telmar, P.S. Telmar, District: Nalanda, Bihar.
... Appellant
Versus
Pankaj Kumar, Aged about- 42 years, Son of Jawahar Lal Singh, Resident
of Qr. No. 1329, Street 48, Sector- 8/D, P.O. Sector-9, P.S. Harla, District-
Bokaro, Jharkhand. At present residing at Or. No. 1329, Street 48, Sector
8/D, P.O. Sector 9, P.S. Harla, Dist: Bokaro, Jharkhand.
... Respondent
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellant : Mr. Mukesh Kr. Sinha, Advocate
For the Respondent : Mr. A.K. Sahani, Advocate
: Mr. Vikesh Kumar, Advocate
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07/Dated: 1 December, 2025
st
Per Sujit Narayan Prasad, J.:
Prayer:
1. The instant appeal has been filed under Section 19(1) of the Family Courts Act, 1984 is directed against the order/judgment dated 28.04.2023 and decree dated 10.05.2023 passed by the learned Principal Judge, Family Court, Bokaro in connection with Original Suit No. 572 of 2021, whereby and whereunder, the petition filed by the respondent-husband, under Section 9 of the Hindu Marriage Act, 1955 against the appellant-wife for restitution of conjugal rights, has Page 1 of 22 2025:JHHC:36058-DB been allowed.
Factual Matrix:
2. The brief facts of the case, as per the impugned judgment and memo of appeal are referred herein which reads as under:
The marriage between appellant-wife and respondent-husband was solemnized on 02.12.2016 at Budh Vihar, Bokaro according to Hindu rites and customs.
The husband is a government employee and the appellant is a housewife. On 10.03.2019 both were blessed with a female child while both were residing at Delhi.
On account of both mental and physical torture at the hands of her husband and in-laws, refusal by the husband to cohabit, repeated pressure and regular assault by the respondent for non-fulfilment of unlawful demand of Rs. 15 Lakhs by the family members of the wife, the appellant wife visualizing threat to her life and left the matrimonial home on 14.10.2021 and reached her parents place at Nalanda, Bihar.
The wife thereafter got a case registered on 01.12.2021 at Harnaut vide Harnaut P.S. Case No. 571/2021 under Section 498(A)/34 IPC and 3/4 of Dowry Prohibition Act against her husband and in-laws.
Further, on 17.10.2021, the appellant has also approached before the concerned Mahila P.S., Biharsharif and subsequently being summoned by Mahila P.S., Naland, the respondent and in-laws Page 2 of 22 2025:JHHC:36058-DB appeared there on 01.11.2021, 05.11.2021 and 25.11.2021 and tried to justify their conduct by submitting that they want to restitute the conjugal life and shall keep the appellant with dignity.
The appellant after being compelled to leave the matrimonial home, the respondent through his mother, filed an informatory petition vide Misc. Criminal Application No. 2446 of 2021 before C.J.M., Bokaro and further, after gaining information about the criminal case against them, instituted a suit on 27.11.2021 before Principal Judge, Family Court, Bokaro vide Original Suit No. 572 of 2021 under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights.
3. The learned Family Judge has called upon the appellant-wife. The wife has filed written statement wherein it has been stated that save and except what are expressly admitted in the written statement all the allegations levelled against her are vehemently denied.
4. The Learned Family Court based upon the pleading made by the parties had framed altogether five issues for its determination/adjudication 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 petitioner has been able to prove that the respondent has withdrawn herself from the society of the petitioner without any reasonable cause?Page 3 of 22
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(iv) Whether the Petitioner is entitled for Decree of restitution of conjugal rights against respondent?
(v) Whether the petitioner is entitled to get the relief as prayed for?
5. The evidences have been laid on behalf of both the parties. Thereafter, the judgment has been passed allowing the suit in favour of petitioner husband and the respondent was directed to join company of her husband/petitioner and lead conjugal life to perform her marital duties/obligations, within one month from the date of the order. The petitioner husband was also directed to keep the respondent/wife and their daughter with him with full honour and dignity.
6. Being aggrieved and dissatisfied with the aforesaid order, the present appeal has been filed by the appellant-wife. Submissions of the learned counsel for the appellant-wife:
7. It has been contended on behalf of the appellant that the judgment passed by the learned court below is grossly perverse, whimsical and incorrect, as such, the same cannot sustain in the eye of law as well on facts, hence, the same is liable to be set aside.
8. It has been submitted that the learned court below has erroneously decided the issues in favour of the respondent and has given no proper findings with regard to reason for withdrawal of the appellant from the society of her husband.
9. It has been submitted that the Court who has to adjudicate the Page 4 of 22 2025:JHHC:36058-DB matter is not supposed to go into the emotion and sentiment, but it is the bounded duty of the Court to decide the issue strictly on the basis of the material produced before the concerned court.
10. The learned Family Judge has failed in the doing so and without taking into consideration the evidence, wherein it has specifically been submitted regarding demand of dowry and physical and mental torture making it difficult for the appellant-wife to live/stay with the respondent-husband.
11. Learned counsel for the appellant, based upon the aforesaid grounds, has submitted that the judgment impugned suffers from perversity, as such, not sustainable in the eyes of law.
Submissions of the learned counsel for the respondent-husband:
12. It has been contended that there is no error in the impugned judgement as the learned Family Judge has considered the entire issues and on the basis of evidences laid by the parties, has passed the order impugned, as such, same may not be interfered with.
13. The appellant-wife herself has deserted the respondent-husband without any reasonable excuse and, as such, the learned Family Court, after taking into consideration the evidence available on record has rightly granted a decree in the favour of respondent-husband for Restitution of Conjugal Rights.
Analysis:
14. We have heard the learned counsel appearing for the parties, gone through the impugned judgment as well as the Trial Court Records, Page 5 of 22 2025:JHHC:36058-DB as also the testimonies of the witnesses and evidences available on record.
15. Now we are proceeding to the factual aspects of the case. The admitted fact herein is that the suit has been filed by the respondent husband under Section 9 of the Hindu Marriage Act, 1955 for a decree of restitution of conjugal rights wherein, issues have been framed by the learned Family Court which have been quoted hereinabove in the preceding paragraphs wherefrom it is evident that primarily issue nos.(iii)and (iv) are most relevant.
16. This Court in order to appreciate the aforesaid rival submissions before entering into the legality and propriety of the impugned judgment needs to discuss herein the relevant part of the evidences adduced on behalf of the parties before the learned Family Court. For ready reference, the evidences laid on behalf of the respondent/petitioner is being referred as under:
(i) PW-1 Pankaj Kumar (Petitioner/respondent herein) has stated in his examination-in-chief that he is in service as an Assistant in Senior Citizens Protection Group and drawing salary of Rs. 68,000/- per month.
The respondent has filed a case against him before Mahila P.S., Nalanda, under Dowry Prohibition Act. On Notice of that case, he has filed this case for restitution of conjugal rights. He has denied the case of the respondent and states that they have never snatched Page 6 of 22 2025:JHHC:36058-DB the baby girl, who was 06 months old from the respondent, neither has subjected. the respondent with cruelty and inhuman act. He also denied that on 11.10.2021 by leaving the respondent in Bokaro.
(ii) PW-2 Rita Sinha (Mother of Petitioner) has stated the same facts as stated by PW-1 (Petitioner) in his examination-in-chief filed on oath and further states that on 14.10.2021 she was going for her eyes treatment to Kolkata and she was informed on telephone by her neighbour that the respondent has locked and left their house and handed over the keys of their house in Harla Police Station by alleging that they subject her with cruelty and torture. She made phone call to the respondent, which was unanswered and later on her phone number was blocked. They tried to bring her back but she did not return. The respondent has filed a case under Dowry Prohibition Act against them in Nalanda Court. Her grand-daughter was born on 10.03.2019. She is with them. Her husband retired in the year 2015. The Petitioner is working in Delhi. The respondent left their house on 14.10.2021. She denied the case of the respondent.
17. The appellant/respondent has also adduced following evidences: Page 7 of 22
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(i) RW-1 Kiran Devi (Mother of respondent) has stated in her examination-in-chief that her son had given Rs.5,00,000/- for purchasing a Flat. She does not know that amount was transferred in the account of the respondent. She brought the respondent to Bokaro on 14.10.2021. It is wrong to say that on 11.10.2021 she took the respondent to Harnaut. She also states that the respondent was treated in Harnaut Vardhaman Hospital.
They reached Harnaut on 10.10.2021 and after 1-2 days, the respondent was treated in Vardhaman Hospital. They have filed a petition in Mahila Police Station in Nalanda on 17.10.2021. She denied the case of the Petitioner. Her grand-daughter was born on 10.03.2019 in Delhi. She has no medico legal document to show that the respondent got burn injuries on her thighs with hot tea thrown on her. She is not ready to send the respondent with the Petitioner.
(ii) RW-2 Deepu Kumar (Independent witness) has stated the same facts as stated by RW-1 in her examination-in- chief that he knows about the case of the respondent filed by the respondent against the Petitioner and his family members in Mahila Police Station, Nalanda. He came to Bokaro on 13.10.2021 from Harnaul by a four Page 8 of 22 2025:JHHC:36058-DB wheeler, but he has no document to prove this fact. At first, they went to Sector-IX, Harla Police Station and filed a written complaint there, but he has no office copy to show in the court. The respondent was under
treatment in Pawapuri, Bihar Shariff.
(iii) RW-3 Nutan Kumari (respondent/appellant herein) has fully supported her case in her examination-in-chief filed on oath, almost stated same facts as stated by Rws' 1 & 2 intheir examination-in-chief and states that she was living in Dwarka, Delhi with her husband (Petitioner). Her daughter was born on 10.03.2019. She denied the case of the Petitioner and further states that she with her daughter and husband were in Delhi in November-December, 2020. She admits that her brother had given Rs.5,00,000/- in her account for purchasing of Flat. She has admitted about the photographs filed by the Petitioner and also admits that she is with her in-
laws in the photographs. On 11.10.2021, she with her mother-in-law and father-in-law went to Vardhaman in the house of her sister-in-law, but she cannot say the time. On 19.10.2021, she went to Pawapuri Hospital in Vardhaman, while on 16.10.2021 she was medically examined in Harnaut. She was having injuries on back Page 9 of 22 2025:JHHC:36058-DB side of her chest. She was under treatment in Vardhaman from 16.10.2021 to 09.04.2022. Mediation was failed in Mahila Police Station. She had filed a petition in Harla Police. Station, Bokaro relating to torture she suffered.
18. This Court, in order to appreciate the argument advanced by the learned counsel for the parties, needs to consider as to:
(i) Whether the learned Family Judge, while passing the impugned judgment, has appreciated the evidence recorded on behalf of the parties in right perspective.
(ii) Whether the learned Family Judge, while considering the case on the basis of the emotion and the likelihood of the dispute having been resolved in future, can be said to be justified.
19. Both the issues since are interlinked, hence they are being taken up together for the sake of convenience.
20. Herein, it would be appropriate to discuss the object and scope of decree of restitution. The object of restitution decree was to bring about cohabitation between the estranged parties so that they could live together in the matrimonial home in amity. The leading idea of Section 9 was to preserve the marriage. For ready reference Section 9 of the Hindu Marriage Act is being referred as under:
9. Restitution of conjugal right.--5 ** * When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of Page 10 of 22 2025:JHHC:36058-DB conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
6[Explanation.--Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]
21. From perusal of the aforesaid provision it is evident that if either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, before the court concerned, for restitution of conjugal rights and the court, on being satisfied with the statements made in such petition and further taking into consideration the legal ground that why the application should not be granted, may decree restitution of conjugal rights accordingly.
22. Further in explanation part of the said provision it has been prescribed that when a question arises whether there has been "reasonable excuse" for withdrawal from the society, the burden of proving "reasonable excuse" shall be on the person who has withdrawn from the society.
23. It needs to refer herein that conjugal rights may be viewed in its proper perspective by keeping in mind the dictionary meaning of the expression "Conjugal" wherein the meaning of 'conjugal' as "of or pertaining to marriage or to husband and wife in their relations to each other" is given (Shorter Oxford English Dictionary, 3rd Edn. Vol. I page 371).
24. In the Dictionary of English Law, 1959 Edn. at page 453, Earl Jowitt Page 11 of 22 2025:JHHC:36058-DB defines 'conjugal rights' thus:
"The right which husband and wife have to each other's society and marital intercourse. The suit for restitution of conjugal rights is a matrimonial suit, cognizable in the Divorce Court, which is brought whenever either the husband or the wife lives separate from the other without any sufficient reason, in which case the court will decree restitution of conjugal rights (Matrimonial Causes Act, 1950, s. 15), but will not enforce it by attachment, substituting however for attachment, if the wife be the petitioner, an order for periodical payments by the husband to the wife (s.22). Conjugal rights cannot be enforced by the act of either party, and a husband cannot seize and detain his wife by force (R.V. Jackson [1891] 1 Q.B. 671)".
25. In India it may be borne in mind that conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself. Thus, the restitution of conjugal rights is often regarded as a matrimonial remedy. The remedy of restitution of conjugal rights is a positive remedy that requires both parties to the marriage to live together and cohabit.
26. Thus, the requirements of the provision of restitution of conjugal rights are the following:
(i) The withdrawal by the respondent from the society of the petitioner.
(ii) The withdrawal is without any reasonable cause or excuse or lawful ground.
(iii) There should be no other legal ground for refusal of the relief
(iv) The court should be satisfied about the truth of the statement made in the petition Page 12 of 22 2025:JHHC:36058-DB
27. The Hon'ble Apex Court in the case of Suman Singh v. Sanjay Singh, (2017) 4 SCC 85 has categorically observed that when there is evidence establishing that it was respondent husband who withdrew from appellant's company without any reasonable cause, appellant is entitled to decree for restitution of conjugal rights. For ready reference the relevant paragraph is being quoted as under:
24. In our considered view, as it appears to us from perusal of the evidence that it is the respondent who withdrew from the appellant's company without there being any reasonable cause to do so. Now that we have held on facts that the respondent failed to make out any case of cruelty against the appellant, it is clear to us that it was the respondent who withdrew from the company of the appellant without reasonable cause and not the vice versa.
25. In view of the foregoing discussion, the appeals succeed and are allowed. The impugned judgment [Suman Singh v.
Sanjay Singh, 2013 SCC OnLine Del 2138 : (2013) 136 DRJ 107] is set aside. As a result, the petition filed by the respondent (husband) under Section 13(1) of the Act seeking dissolution of marriage is dismissed. As a consequence thereof, the marriage between the parties is held to subsist whereas the petition filed by the appellant against the respondent under Section 9 of the Act seeking restitution of conjugal rights is allowed. A decree for restitution of conjugal rights is, accordingly, passed against the respondent.
26. We hope and trust that the parties would now realise their duties and obligations against each other as also would realise their joint obligations as mother and father towards their grown up daughters. Both should, therefore, give a quiet burial to their past deeds/acts and bitter experiences and start living together and see that their daughters are well settled in their respective lives. Such reunion, we feel, would bein the interest of all family members in the long run and will bring peace, harmony and happiness. We find that the respondent is working as a "Caretaker" in the Government Department (see Para 4 of his petition). He must, therefore, be the "Caretaker" of his own family that being his first obligation and at the same time attend to his government duties to maintain his family.
28. Thus, on the basis of aforesaid settled position of law, it is evident that the court will grant a decree for restitution of conjugal rights Page 13 of 22 2025:JHHC:36058-DB when one spouse has withdrawn from the other's society without reasonable excuse. This means if a husband or wife leaves the marital home or refuses to live with their spouse without a justifiable reason, the other spouse can file petition before the court for this remedy. The court, if satisfied with the truth of the petition and finding no legal barrier, may order the withdrawing spouse to return and resume cohabitation.
29. In the backdrop of the settled position this Court is now readverting to the factual aspect of the instant case wherefrom it is evident from the testimony and evidence available on record that the respondent husband had alleged the appellant has withdrawn herself from the marital obligation without any reasonable excuse.
30. Per contra, the appellant-wife had stated that due to torture and cruelty as inflicted by the respondent husband, it was impossible for her to carry out the marital obligation and the respondent husband has filed the petition under Section 9 of the Act 1955 to save his skin
31. Thus, from the aforesaid it is evident that appellant wife due to discord in marital life does not want to continue the same and she had alleged that she had been compelled to leave the house of the respondent husband.
32. Now this Court is going to appreciate the contention of the learned counsel for the appellant wherein it has been contended on behalf of the appellant that the judgment passed by the learned court below is grossly perverse, as such, the same cannot sustain in the eye of law Page 14 of 22 2025:JHHC:36058-DB as well on facts, hence, the same is liable to be set aside..
33. This Court while appreciating the argument advanced on behalf of the appellant on the issue of perversity needs to refer herein the interpretation of the word "perverse" as has been interpreted by the Hon'ble Apex Court which means that there is no evidence or erroneous consideration of the evidence.
34. 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 relevantmaterial or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27 of the said judgment reads as under:
"24. The expression "perverse" has been dealt with in a number of cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501] this Court observed that the expression "perverse"
means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.
25. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [AIR 1966 Cal 31] the Court observed that "perverse finding"
means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341] the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.
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 Page 15 of 22 2025:JHHC:36058-DB [(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."
35. Now this Court is adverting to impugned judgment in order to find out that whether the impugned judgment is suffering from the element of perversity or not.
36. From the impugned judgment it appears that the learned Family Court has not given any cogent finding with regard to the issues framed in the matrimonial suit rather has only mentioned about matrimonial discord and simply observed about giving opportunity to the parties to settle their matrimonial discord once for all.
37. At this juncture it requires to refer herein that a husband can file a petition for restitution of conjugal rights if his wife has withdrawn Page 16 of 22 2025:JHHC:36058-DB from his society without reasonable excuse, seeking a court order for her to resume living with him. The court may grant the decree if it is satisfied the petition's claims are true and there is no legal ground to refuse it. This remedy serves as a way for the aggrieved spouse to seek the restoration of the right to cohabit with the other spouse.
38. But in the instant case it is apparent from the impugned judgment that the learned Family Court has not given proper finding on the issue that whether the appellant wife has withdrawn from society of the respondent husband without reasonable excuse or she was compelled to withdrawn from the society of the husband.
39. Further there is no dispute that Sub-section (1) of section 9 entitles a spouse to restitution of conjugal rights if the other spouse without reasonable cause withdraws from his or her society but where conduct of a spouse falls short of cruelty or any other matrimonial offence but it is harsh and unbearable, it may justify a spouse in leaving the other.
40. Several decisions of Indian High Courts too have expressed view more or less similar to it. In Anjani Dei v. Krushna Chandra AIR 1954 Ori 117, it was observed by Mohapartra, J:
"Apart from the question of physical cruelty, torture or assault by any member of the family if the circumstances are such that it is not possible for the wife to live as a wife with self-respect and dignity in the house of the husband. Indeed she is entitled to separate maintenance and residence."
41. Similarly, in Mst. Gurdev Kaur v. Sarwan Singh, AIR 1959 Punjab 162 Grover, J. said that:
"Where the husband is guilty of conduct which falls short of legal cruelty in the sense that it is not cruelty of the kind Page 17 of 22 2025:JHHC:36058-DB mentioned in 'section 10(l)(b) of the Hindu Marriage Act, but his misbehaviour or misconduct is such that the wife is fully justified in separating herself from him, the husband cannot succeed in his petition under section 9 as it will not be possible for the Court to say that the wife has withdrawn herself from his society without reasonable excuse. In a case of this nature the petition shall fail not because of any defence set up by the wife under section 9(2) but it cannot succeed on account of the non-fulfillment of one ofthe essential ingredients of sub- section(1) of section 9. Apart from the provisions of section 9(1) even if a proceeding is undefended it is obligatory on the Court to be satisfied under section 23(l)(a) that the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief.
This makes the position clearer that the Court is bound to take into consideration the conduct of the petitioner. If the petitioner has by his own misdeeds forced his spouse to leave him, he cannot be allowed to take advantage of his own wrong and ask for the assistance of the Court of perpetuate his own wrong doing."
42. In the instant appeal it is evident from the evidence of the appellant/wife wherein she has stated specifically that she was compelled to leave her matrimonial house but the learned trial court has not taken into consideration the said aspect of the matter and merely gone into the issue of quarrel in between the parties.
43. The requirement under the law in the case of adjudication of the issue is that the adjudication is to be based upon the consideration of the evidence and, particularly, in the case of restitution of conjugal rights, it is primary duty of the learned Family Judge to look into the evidence of the wife as to whether she intends to live with the husband or not, peacefully and with all dignity. If the wife utters that she cannot live with the husband due to the reason as stated by the wife in her evidence, the court cannot compel such party to live together with the husband compromising with the dignity and subjected to cruelty as is being reflected from the evidence of the Page 18 of 22 2025:JHHC:36058-DB wife.
44. It is evident from the Trial Court Record that the photographs has also been appended, but since we are dealing with the case where the Evidence Act is not strictly applicable in view of the provision of Section 14 of the Family Courts Act and as such, we have considering the said photograph and from the perusal of the same, it transpires the story regarding the torture suffered by the appellant and an F.I.R. being Harnaut P.S. Case No. 571/2021 has also been instituted under Section 498-A of the Dowry Prohibition Act against the respondent- husband and in-laws.
45. The Court is now proceeding to know as to how the evidence has been appreciated by the learned Trial Court in order to reach to the conclusion and as to whether the impugned judgment suffers from perversity or not.
46. It is evident from Para 8 to 12 of the impugned judgment that the evidence has been recorded but there is no consideration of the said evidence at all as would be evident from Para 13 wherein it has been referred by the learned Family Judge without taking into consideration the implication of the evidence and only has referred that there are some matrimonial discord between the parties and one criminal case under Dowry Prohibition Act has been filed by the respondent against her husband and in-laws.
47. It is very surprising that the learned Family Judge has gone into emotion and sentiment by taking note that "But even, I am of the Page 19 of 22 2025:JHHC:36058-DB opinion that, good sense would prevail between the couple, considering the fact that out of their wedlock, the couple has been blesses with a female baby, who is at present aged about 04 years. She needs her parental love and affection for her proper upbringing and bright future. So this Court must give an opportunity to the parties to settle their matrimonial discord once for all."
48. This Court, therefore, is of the view that the learned Family Judge, who was duty bound to appreciate the argument advanced by the parties and weighing the same. The finding is to be recorded for the purpose of reaching to the conclusion regarding the fate of the suit, but instead of doing so, the learned Family Judge has gone into sentiment and his personal opinion that in future, there is likelihood of settlement of dispute.
49. This Court is further of the view that when the appellant-wife has shown his refusal to live together, then where is the necessity to come by way of personal opinion of the adjudicator by giving an opinion that in future, the dispute will be settled, rather, the Court, being an adjudicator, is to decide the issue without being influenced by any emotion and sentiment irrespective of the result.
50. On the basis of the discussion made hereinabove, this Court is of the view that the finding so recorded by the learned Family Judge, without taking into consideration the evidence, totally shows non- application of mind and the learned Family Judge has failed in discharge of his duty.
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51. It requires to refer herein that the word 'Consideration' always means the application of mind and taking reference of the evidence cannot be construed to be application of mind. The same has been interpreted by the Hon'ble Apex Court in the case of Chairman, Life Insurance Corporation of India and Ors. vs. A. Masilamani, reported in (2013) 6 SCC 530 at paragraph 19, which reads hereunder as :-
―19. The word ―consider‖ is of great significance. The dictionary meaning of the same is, ―to think over‖, ―to regard as‖, or ―deem to be‖. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term ―consider‖ postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order.‖ From the interpretation made by the Hon'ble Apex Court with respect to meaning of 'consideration', it would be evident that consideration can only be said to be proper consideration if there is active application of mind by the concerned authority who is considering the reply of defence furnished by the persons against whom the allegations have been levelled.
52. Herein, the consideration would have been said of the evidence led on behalf of the parties and documents adduced in support of the evidence which would have been considered and based upon that of the finding would have been recorded but the learned Family Court Page 21 of 22 2025:JHHC:36058-DB failed to do so.
53. Hence, it is case where the learned Family Judge has failed in considering the evidence recorded on behalf of the appellant-wife and documents adduced in support of the evidence.
54. Thus, this Court is of the considered view that the impugned judgment suffers from perversity and is not sustainable in the eye of law.
55. As such, the judgment dated 28.04.2023 and decree dated 10.05.2023 passed by the learned Principal Judge, Family Court, Bokaro in connection with Original Suit No. 572 of 2021 are quashed and set aside.
56. Accordingly, the appeal being F.A. No. 179 of 2023 stands allowed.
57. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.) (Arun Kumar Rai, J.) 1st December, 2025 Samarth/A.F.R. Uploaded on 06.12.2025 Page 22 of 22