Jharkhand High Court
Sandip Prasad Aged About 38 Year Son Of ... vs Sarita Devi Wife Of Sandip Prasad on 23 June, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
( 2025:JHHC:16686-DB )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 58 of 2025
Sandip Prasad aged about 38 year son of Late Laxmi
Prasad resident of village Bajkum, Post-Latehar Railway
Station, P.S. & District Latehar, Jharkhand
... ... Plaintiff/Appellant
Versus
Sarita Devi wife of Sandip Prasad, resident of village
Goatgaon, Post Chatakpur, Police Station-Mahuwadanr,
District Latehar, Jharkhand
... ... Defendant/Respondent
-------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
-------
For the Appellant : Mr. Prashant Kumar Rahul, Adv
For the Respondent : Mr. Nandan Prasad, Advocate
----------------------------
Order No. 07 : Dated 23rd June, 2025
Per Sujit Narayan Prasad, J.
Prayer:
1. The instant appeal under Section 19(1) of the Family Court Act, 1984 is directed against the order/judgment dated 03.12.2024 and decree signed on 07.12.2024 passed by the learned Principal Judge, Family Court, Latehar in Original Suit No. 05 of 2024, whereby and whereunder, the suit filed under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 seeking a decree of divorce by the appellant-husband against the respondent-wife, has been dismissed.
Brief facts of the case:
2. The brief facts of the case, as taken note in the impugned order, needs to be referred herein, which reads as under:1 F.A. No. 58 of 2025
( 2025:JHHC:16686-DB )
3. It is the case of the appellant-husband that marriage was solemnized on 26.04.2008, as per Hindu customary rites and immediately after the marriage they started living their conjugal life but just after a month the respondent-wife started pressurizing him to separate himself from his parents. The pressure was denied by the appellant as a result of which the behaviour of the respondent-wife became arrogant and she started picking quarrel with the appellant-
husband and his parents. Thereafter, the respondent-wife raised a Complaint Case being Complaint Case No.157/2011 against the petitioner and his entire family members who were arraigned as accused. It is stated that in the said complaint case the appellant and his family members were acquitted and thus it is proved that they were arraigned in false case. It is stated that institution of false case in matrimonial disputes amounts to cruelty and thus the respondent has subjected him to cruelty by instituting false case against him. It is further stated that in the said complaint case there was an amicable settlement between the parties and out of the settlement the appellant-husband paid Rs.2,00,000/- to the respondent as one-time permanent alimony and both the parties agreed to part their ways. Later on the respondent-wife filed a Maintenance Case against the appellant-husband even though she had received a one-time alimony in the previous settlement in the 2 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) complaint case and thus the respondent has treated the petitioner with cruelty and by filing the present suit in which he has prayed for dissolution of marriage by a decree of divorce.
4. The respondent appeared and filed written statement admitting her marriage with the petitioner on 26.04.2008. However, she has denied that she pressurized the petitioner for separating from his parents and because of non- acceptance of her demand she treated the appellant- husband with cruelty. She has admitted that she filed a complaint case against the appellant-husband and has also admitted that the said complaint case was disposed of on the basis of an amicable settlement. She has stated that she settled the case because she respected her husband, however she has denied that she was paid Rs. Two lacs as one time alimony by her husband. She has stated that she also preferred a Maintenance Case against her husband which has been allowed and her husband has been directed to pay monthly allowance of maintenance to her. She has stated that as a matter of fact her husband had raised a demand of motorcycle and a gold chain and threatened that if his demands are not met then he will solemnize his second marriage. Even on 06.06.2011 he married a woman by the name Shila Devi with whom he has three children. She has stated whenever she visits her husband, his second wife not 3 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) only assaults her but ousts her from the house. She has stated that she treats the appellant-husband as her husband and wants to lead her conjugal life with him and thus has prayed to dismiss the suit.
5. Before the learned family court, conciliation was held between the parties but the same failed and attempts for settlement by way of mediation did not bore any fruit, hence on the basis of the pleadings and after hearing the parties, following issues were framed by the learned family court:-
ISSUES I. Whether after solemnization of the marriage, the respondent has treated her husband/petitioner with cruelty? II. Whether the Petitioner is entitled for relief as claimed?
6. The parties have led oral evidence as well as the documentary evidence.
7. The learned principal judge, family court, after appreciating the evidence adduced on behalf of parties, and argument advanced on their behalf, came to the conclusion that the petitioner-husband has failed to prove his case against the respondent-wife under Section 13(1)(i-a) of the Hindu Marriage Act, as such the petitioner-husband is not entitled for decree of divorce, accordingly dismissed the suit, against which, the instant appeal has been preferred. Submission of the learned counsel for the appellant-husband:
8. It has been contended on behalf of the appellant that the factual aspect which was available before the learned family court supported by the evidence adduced on behalf of the 4 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) appellant has not properly been considered and as such, the judgment impugned is perverse, hence, not sustainable in the eyes of law.
9. Submission has been made that ground has been taken that since the year 2011 both the appellant and respondent are living separately and as such as per the settled position of law long separation is fittest ground to establish cruelty and that was brought to the notice to the learned family judge but without appreciating the said aspect of the matter in right perspective the application has been rejected by coming to the conclusion that the ingredient of cruelty could not be established by the appellant-husband.
10. Submission has been made that the impugned judgment is vitiated on account of non-consideration of pleadings as well as evidences adduced on behalf of parties in true perspective.
11. In support of his case, learned counsel for the appellant has relied upon the judgment rendered by Hon‟ble Apex Court in the case of Samar Ghosh Vs. Jaya Ghosh [2007 3 Supreme 26].
12. Learned counsel for the appellant, based upon the aforesaid ground, has submitted that the judgment impugned suffers from perversity, as such, not sustainable in the eyes of law. Submission of the learned counsel for the respondent: 5 F.A. No. 58 of 2025
( 2025:JHHC:16686-DB )
13. While on the other hand, learned counsel for the respondent-wife, defending the impugned judgment, has submitted that there is no error in the impugned judgment.
14. Submission has been made that cruelty although has not been defined under the Hindu Marriage Act but it is a case where the respondent-wife has been subjected to cruelty since divorce is based upon a compromise but the same is being denied and further it is denied that any amount as agreed to the tune of Rs. 2 lacs has ever been paid to the respondent-wife rather second marriage have been contracted by the appellant-husband and in order to save his skin, he has filed the suit for decree of divorce taking a non-est ground. It has been contended that even accepting that the second marriage has been made on the basis of compromise but even also it is the appellant-husband, who has shown cruelty towards his wife by solemnizing second marriage.
15. It has further been stated that taking into consideration the aforesaid aspect of the matter, the learned family court has refused to accept the plea taken on behalf of appellant to establish the element of cruelty by rejecting the said application, which cannot be faulted with.
16. Learned counsel, based upon the aforesaid ground, has submitted that if on that pretext, the factum of cruelty has not been found to be established, based upon which the 6 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) decree of divorce has been refused to be granted, the impugned judgment cannot be said to suffer from error. Analysis:
17. This Court has heard the learned counsel for the parties and gone through the finding recorded by the learned Principal Judge in the impugned judgment.
18. The admitted fact herein is that the marriage was solemnized on 26.04.2008 in between the parties. The appellant-husband has filed a suit for divorce on the ground of cruelty i.e., by filing an application under Section 13(1)(i-
a)the Hindu Marriage Act, 1955.
19. Before the learned family, evidence has been led on behalf of both the parties. For ready reference, the evidences led on behalf of the parties are being referred as under:
20. PW1-Sandip Prasad, the appellant-husband himself has stated that his marriage with Sarita Devi was soleminzed on 26.04.2008 in accordance with Hindu customary rites. Sarita Devi instituted a Complaint Case No.157/2011 which was compromised and both the parties settled to part their ways and lead an independent life and because he did not prefer any Divorce Suit at the relevant time, therefore, he has filed the present suit. He has also stated that he has given Rs. Two lacs as permanant alimony in terms of the compromise. He has stated that both he and Sarita Devi are residing separately since 08.08.2011. He has proved all the 7 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) documents marked as Ext.1 to Ext.9. During his cross- examination he has stated that there is no documentary evidence of his assertion that he has paid Rs.Two lacs, jewellery and cloths to his wife after he soleminzed his second marriage. He has stated that he has parted ways with his son from his first wife. He has denied that he has himself extended cruelty towards his wife by soleminzing second marriage during the subsistence of his first marriage.
21. PW2-Amardip Prasad, has also supported the case of the appellant and there is nothing relevant in his cross- examination.
22. PW3-Nagendra Prasad, during his cross-examination has stated that he has no knowledge about the second marriage of the petitioner. He has stated that the compromise in Complaint Case was effected in his presence and he has made his signature on the compromise petition (Ext.7) but upon being confronted with Ext.7 he has stated that the document does not contain his signature. The family court has come to the conclusion that from his evidence it appears that he does not know anything about the case and he is not a trustworthy witness.
23. PW4- Shanti Devi has stated that at the time of compromise in Complaint Case No.157/2011 his son Sandip Prasad delivered Rs.Two lacs as permanent alimony to Sarita Devi and also delivered her jewellery and other articles. During 8 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) her cross-examination she has stated that there was a divorce in between Sandip and Sarita before solemnization of his second marriage. She has stated that Sarita Devi has instituted this case but she has no idea about the relief which she has sought. The learned family court has opined that that this witness also does not have any knowledge about this case.
24. It is evident from the testimony, as has been recorded by the witnesses, that the husband has tried to establish the ground of cruelty, as has been deposed by him on the ground that although the marriage was solemnized on 26.04.2008 as per Hindu Customary rights, but the respondent-wife instituted a Complaint Case No.157/2011. It is stated that the said case was compromised and both the parties settled to part their ways and lead an independent life and because he did not prefer any Divorce Suit at the relevant time, therefore, he has filed the present suit. He has also stated that on 06.06.2011 the appellant-husband solemnized second marriage with Shila Devi. It has been since 08.08.2011 the respondent-wife is living separately, which the appellant-husband has said to be cruelty. Other witnesses have also stated about the issue of separation.
25. Contention, therefore, has been raised before the learned family court that the respondent-wife by filing a false complaint case, in which, the appellant-husband and family 9 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) members were later on exonerated, has meted out cruelty. Further ground has been taken that since 2011 they are living separately, therefore, the marriage has broken down irretrievably and, as such made a prayer to grant the decree of divorce by annulling the marriage.
26. While on the other hand, the respondent-wife has taken the ground that it is the respondent-wife who has been subjected to cruelty as during subsistence of her marriage with the appellant, he has solemnized second marriage, which itself amounts to cruelty.
27. This Court, in order to appreciate 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 so as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. Relevant 10 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) 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 [(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.
11 F.A. No. 58 of 2025
( 2025:JHHC:16686-DB )
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.""
28. Appellant-husband has sought for relief on the ground of cruelty so first of all this Court is to consider on the point as to what is cruelty and whether the same was proved by appellant or not.
29. The cruelty has not been defined under the Hindu Marriage Act, 1955, however, by its interpretation by the Hon‟ble Apex Court, the cruelty has been interpreted.
30. Cruelty- The concept of cruelty has been summarized in Halsbury's Laws of England (Vol.13, 4th Edition Para 1269) as under :-
"The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts."
31. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that is not 12 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively.
32. In case of mental cruelty, it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce case has been subjected to mental cruelty due to the conduct of other.
33. It is true that the term "cruelty" has not been defined in the Hindu Marriage Act and it will depend upon the facts and circumstances of each case as to whether actually the cruelty has been committed or not ?
13 F.A. No. 58 of 2025
( 2025:JHHC:16686-DB )
34. It is well settled that the conduct should be so grave and weighty as to come to the conclusion that the plaintiff cannot reasonably be expected to live with the defendant. It must be more serious than the ordinary wear and tear of married life. The cumulative conduct, taking into consideration the circumstances and background of the parties has to be examined to reach conclusion that whether the conduct, complained of amounts to cruelty or not? Ordinarily cruelty means danger to life and limb of a spouse from other which makes it practically impossible to lead conjugal life with other.
35. 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.
36. 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 husband and his parents demanded dowry. The Hon‟ble Apex Court emphasized that "cruelty" can have no fixed definition. 14 F.A. No. 58 of 2025
( 2025:JHHC:16686-DB )
37. According to the Hon'ble Apex Court, "cruelty" is the "conduct in relation to or in respect of matrimonial conduct in respect of matrimonial obligations". It is the conduct which adversely affects the spouse. Such cruelty can be either "mental" or "physical", "intentional‟ or "unintentional". For example, unintentionally waking your spouse up in the middle of the night may be mental cruelty; intention is not an essential element of cruelty but it may be present. Physical cruelty is less ambiguous and more "a question of fact and degree."
38. 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."
39. The Hon‟ble Apex Court has further held that every trivial quarrel between the parties will not come under the fold of „cruelty‟. The appellant had tried to impress upon the learned family court by filing application under Section 13(1) (i-a) of the Hindu Marriage Act, 1955, i.e., he has sought for decree of divorce on the ground of cruelty. The case has been made out by the appellant-husband on the ground of long 15 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) separation; meaning thereby the ground has been tried to be demonstrated either before the learned family court or before this Court is about the ground of desertion.
40. There is no dispute that the cruelty and desertion are two separate grounds, as referred in Section 13(1)(i-a) and explanation part of Section 13.
41. The parameters to establish cruelty and desertion are also by way of two different ways. The cruelty although has not been defined but desertion has been defined under the explanation part of Section13 of the Hindu Marriage Act, for ready reference same is being quoted as under:
[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.]
42. 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."16 F.A. No. 58 of 2025
( 2025:JHHC:16686-DB ) 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 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 17 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) 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 18 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) Utamchand Kirpalani v. Meena, AIR 1964 SC 40 which has been consistently followed in several decisions. The law consistently laid down by the Hon‟ble Apex Court that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home.
48. Thus, the desertion means the desertion of the one party 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.
49. The admitted fact herein is that it is the husband who has contracted second marriage during subsistence of the first wife and thereafter, the respondent-wife is not living with the husband.
50. Therefore, the question which is required to be considered that although the divorce suit has been filed by the husband 19 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) on the ground of cruelty but argument has been advanced based upon the element of desertion. Even accepting the element of desertion but taking into consideration the conduct of the husband, who during subsistence of first marriage, has married with another lady namely Shila Devi, that is admitted case of the parties. The said marriage stated to be solemnized based upon the compromise. Law is well settled that there cannot be any compromise/estoppel against the law.
51. The facts since is admitted that since on the basis of compromise entered into between the parties, the second marriage has been solemnized, which itself goes to show the conduct of the present appellant.
52. Therefore, this court is of the view that it is not the respondent-wife, who has subjected her husband either with the cruelty or desertion rather it is the appellant-husband who has subjected his wife with cruelty by solemnizing second marriage during survival of his first wife that led the respondent-wife to live separately.
53. The learned counsel for the appellant has relied upon the judgment rendered in the case of Samar Ghosh Vs. Jaya Ghosh (supra), therefore it is the bounden duty of the Court to consider the applicability of the said judgment in the facts and circumstances of the present case.
20 F.A. No. 58 of 2025
( 2025:JHHC:16686-DB )
54. This Court, therefore, is of the view that factual aspect of the said case is required to be mentioned herein.
"The appellant and the respondent knew each other since 1983. The respondent, when she was serving as the Deputy Secretary in the Department of Finance, Government of West Bengal, used to meet the appellant between November 1983 and June 1984. They cultivated close friendship which later developed into courtship.
The respondent's first husband, Debashish Gupta filed a belated appeal against the decree of divorce obtained by her from the District Court of Patna. Therefore, during the pendency of the appeal, she literally persuaded the appellant to agree to the marriage immediately so that the appeal of Debashish Gupta may become infructuous. The marriage between the parties was solemnized on 13.12.1984. According to the appellant, soon after the marriage, the respondent asked the appellant not to interfere with her career. She had also unilaterally declared her decision not to give birth to a child for two years and the appellant should not be inquisitive about her child and he should try to keep himself aloof from her as far as possible. According to the appellant, there was imposition of rationing in emotions in the arena of love, affection, future planning and normal human relations though he tried hard to reconcile himself to the situation created by the respondent.
The appellant asserted that the apathy of the respondent and her inhuman conduct towards him became apparent in no time. In February 1985, the appellant suffered prolonged illness. The respondent's brother was working in Bareilly. Her parents along with her daughter went there for sojourn. The appellant could not go because of high temperature and indifferent health. She left him and went to Bareilly even when there was no one to look after him during his illness. On her return, the respondent remained in Calcutta for about four days, but she did not care to meet the appellant or enquire about his health. According to the appellant, he made all efforts to make adjustments and to build a normal family life. He even used 21 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) to go to Chinsurah every weekend where the respondent was posted but she showed no interest and was overtly indifferent to him. The appellant usually returned from Chinsurah totally dejected. According to the appellant, he felt like a stranger in his own family. The respondent unilaterally declared that she would not have any child and it was her firm decision. The appellant felt that his marriage with the respondent was merely an eye-wash because immediately after the marriage, serious matrimonial problems developed between them which kept growing.
The respondent was transferred to Calcutta in May 1985. Their residential flat at the Minto Park Housing Estate stood allotted to the appellant. The respondent used to come to their flat intermittently. One Prabir Malik, a domestic servant-cum-cook also used to live in the said flat. He used to cook food and carry out household work for the appellant. According to the appellant, the respondent used to say that her daughter was being neglected and that she might even be harmed. The indication was towards Prabir Malik. The appellant and the respondent virtually began to live separately from September, 1985.
The appellant was transferred to Murshidabad in May 1986 but the respondent continued to stay in Calcutta. The appellant stayed in Murshidabad up to April 1988 and thereafter he went on deputation on an assignment of the Government of India but there he developed some health problem and, therefore, he sought a transfer to Calcutta and came back there in September 1988. On transfer of the appellant to Murshidabad, the flat in which they were staying in Minto Park was allotted to the respondent as per the standard convention. The appellant and the respondent again began living together in Calcutta from September 1988. The appellant again tried to establish his home with the respondent after forgetting the entire past.
According to the appellant, the respondent never treated the house to be her family home. The respondent and her mother taught respondent's daughter that the appellant was not her father. The child, because of instigation of the respondent and her mother, gradually began to avoid the 22 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) appellant. The respondent in no uncertain terms used to tell the appellant that he was not her father and that he should not talk to the child or love her. The appellant obviously used to feel very offended.
The appellant also learnt that the respondent used to tell her mother that she was contemplating divorce to the appellant. The respondent's daughter had also disclosed to the appellant that her mother had decided to divorce him. According to the appellant, though they lived under the same roof for some time but the respondent virtually began to live separately from April, 1989 at her parent's house. In April 1990 the appellant's servant Prabir Malik had left for Burdwan on getting a job. The respondent used to come from her parents house to drop her daughter to her school La Martinere. She used to come to the flat at Minto Park from the school to cook food only for herself and leave for the office. The appellant began to take his meals outside as he had no other alternative.
According to the appellant, the said Prabir Malik came to the flat on 24th August, 1990 and stayed there at the night. The next two days were holidays. The respondent and her father also came there on 27th August, 1990. On seeing Prabir, the respondent lost her mental equanimity. She took strong exception to Prabir's presence in her flat and started shouting that the appellant had no self-respect and as such was staying in her flat without any right. According to the appellant, he was literally asked to get out of that flat. The respondent's father was also there and it appeared that the act was pre-conceived. The appellant felt extremely insulted and humiliated and immediately thereafter he left the flat and approached his friend to find a temporary shelter and stayed with him till he got a government flat allotted in his name on 13.9.1990.
Admittedly, the appellant and the respondent have been living separately since 27th August, 1990. The appellant further stated that the respondent refused cohabitation and also stopped sharing bed with him without any justification. Her unilateral decision not to have any child also caused mental cruelty on the appellant. The 23 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) appellant was not permitted to even show his normal affection to the daughter of the respondent although he was a loving father to the child. The appellant also asserted that the respondent desired sadistic pleasure at the discomfiture and plight of the appellant which eventually affected his health and mental peace. In these circumstances, the appellant has prayed that it would not be possible to continue the marriage with the respondent and he eventually filed a suit for the grant of divorce.
In the suit for divorce filed by the appellant in Alipur, Calcutta, the respondent filed her written statement and denied the averments. According to the version of the respondent, Prabir Malik, the domestic servant did not look after the welfare and well-being of the child. The respondent was apprehensive that Prabir Malik may not develop any affection towards the respondent's daughter.
According to the version of the respondent, the appellant used to work under the instructions and guidance of his relations, who were not very happy with the respondent and they were interfering with their family affairs. The respondent stated that the appellant has filed the suit for divorce at the behest of his brothers and sisters. The respondent has not denied this fact that from 27th August, 1990 they have been continuously living separately and thereafter there has been no interaction whatsoever between them."
55. The Hon‟ble Apex Court based upon the said fact and pleadings available on record and law laid down in other cases by the Hon‟ble Apex Court, has laid down the proposition at paragraph 97, which reads as under:
"No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the 24 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical 25 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.
56. It needs to refer herein that the applicability of the judgment depends upon the applicability based upon the facts of the individual case, since, the judgment is not having the universal applicability, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Dr. Subramanian Swamy v. State of Tamil Nadu, (2014) 5 SCC 75, wherein, at paragraph-47, it has been held as under:--
"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."
57. The factual aspect of the Samar Ghosh is admittedly, as referred at paragraph 2, is that it is a case where two IAS officers where the wife has shown no interest towards her husband and showing instances having referred in the said 26 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) case, the Hon‟ble Apex Court in the aforesaid premise has laid down a proposition that what is to be construed as cruelty or desertion. Reference in this regard be made to paragraph 97(XIV), wherein it has been stated that where there has been a long period of continuous separation it may fairly be concluded that the matrimonial bond is beyond repair and it may lead to mental cruelty.
58. Admittedly in the facts of the present case, the situation has been created by the appellant-husband forcing the respondent-wife to leave him since he solemnized second marriage during subsistence of his first marriage. Therefore, it is not the case where long separation amounting to cruelty is to be attributed to the respondent-wife rather it is to be attributed by the appellant-husband.
59. This Court, therefore, is of the view that on the aforesaid fact the judgment rendered in the case of Samar Ghosh Vs. Jaya Ghosh (supra) is not applicable herein.
60. The learned Principal Judge, Family Court has taken all these facts into consideration and came to the conclusion that appellant has not been able to prove his case against the respondent of cruelty so as to grant the decree of divorce and accordingly, dismissed the suit.
61. This Court, based upon the aforesaid discussion, is of the view that since the appellant/petitioner has failed to establish the element of perversity in the impugned 27 F.A. No. 58 of 2025 ( 2025:JHHC:16686-DB ) judgment as per the discussion made hereinabove, as such, this Court does not find any reason to interfere with the order passed by the learned family court.
62. Accordingly, the instant appeal fails and is dismissed.
63. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.) (Rajesh Kumar, J.) Alankar/A.F.R. 28 F.A. No. 58 of 2025