Jharkhand High Court
Birju Prasad vs Nitu Gupta Wife Of Birju Prasad on 3 November, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
2025:JHHC:34432-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No.294 of 2019
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Birju Prasad, son of Late Ramchandra Sao, resident of village
Karra Road, P.O. Khunti, P.S. and District Khunti.
------- Appellant
Versus
Nitu Gupta wife of Birju Prasad, daughter of Dinesh Prasad,
resident of Dharmsala Road, Aurangabad, P.O. and P.S.
Aurangabad, District Aurangabad (Bihar).
------ Respondent
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellant : M/s. Chanchal Jain &
Saurav Kumar, Advs.
For the Respondent : Mr. Ashok Kumar Pandey, Adv.
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JUDGMENT
CAV on 29.11.2024 Pronounced on 03.11.2025 R.Mukhopadhyay,J. Heard Mr. Chanchal Jain, learned counsel for the appellant and Mr. Ashok Kumar Pandey, learned counsel appearing for the Respondent.
2. This appeal is directed against the judgment and decree dated 21.06.2019 (decree signed on 02.07.2019), passed by Sri Rajesh Kumar No. 1, learned District and Additional Sessions Judge-I, Khunti in Matrimonial Title Suit No. 270 of 2013, whereby and whereunder the suit preferred by the appellant for dissolution of his marriage with the respondent has been dismissed.
3. For the sake of convenience, both parties are referred to in this judgment as per their status before the learned trial court.
4. The petitioner (appellant here in) had filed a suit for dissolution of his marriage with the opposite party (respondent herein) under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955, in which inter-alia it has been 2 stated that the marriage was solemnized as per Hindu rites and customs on 15.08.2004 at Aurangabad in the State of Bihar. After solemnization of the marriage, the opposite party started residing with the petitioner at his parental house at village Kumhartoli, District Ranchi. In the first night of the marriage, the petitioner was desirous of establishing physical relationship with the opposite party, but he was surprised at the conduct of the opposite party who was unresponsive to the sexual advances made by the petitioner. During the first month of marriage, the opposite party had allowed the petitioner to have physical relationship only once, but there was no cooperation from the side of the opposite party. Due to the reluctance on the part of the opposite party to allow the petitioner to have sexual pleasure, the petitioner was compelled to discuss the issue with his close friends and relatives. It has been stated that the friends of the petitioner had a discussion with the opposite party who had clearly expressed her disinterest in the same. The opposite party was also told about the implication of her act which may end the marriage, but she did not pay any heed to such advice. The petitioner had become frustrated and he had once again taken the help of his friends and relatives and it ultimately came to light that the opposite party is unable to subject herself to sexual intercourse on account of pain in her private parts and some medical issues. It has been stated that it transpired that the opposite party is impotent and she had concealed such fact and got married to the petitioner for achieving social status. The opposite party has continuously refused to consummate marriage and also submit herself to medical examination which indicates that prior to her marriage, the opposite party was impotent and she is still in the same category. The father of the opposite party had lodged a case through the opposite party being Khunti P.S. Case No. 64 of 2009 under Section 498A IPC and Section 3 / 4 of Dowry 3 Prohibition Act which was ultimately compromised on 01.02.2010 and consequently the said case was disposed of. It has been stated that the opposite party was taken away by her brother on 20.01.2011 without the permission of the petitioner along with her belongings and cash and despite efforts made by the petitioner, the opposite party never came back. Subsequent to the leaving of the matrimonial house by the opposite party, her parents and brother have been coming to the house of the petitioner and extending abuses and threats. Due to such scenario, it has become an impossibility for the petitioner to continue to lead a marital life with the opposite party.
5. The opposite party on being noticed had appeared and filed a written statement in which the allegation leveled against her by the petitioner has been denied. After the marriage, the opposite party started residing at her matrimonial house with her in-laws and involved herself in domestic chores. The opposite party had established physical relationship with the petitioner as per his desire and was always dutiful towards her husband. It has been stated that after marriage, she was pressurized to bring Rs. 1,50,000/- for the purposes of purchase of a land and for which the opposite party was mentally and physically tortured. Though the demand of Rs. 1,50,000/- was fulfilled by the parents and brother of the opposite party, but the petitioner further demanded an amount of Rs. 50,000/- for purchasing a shop and this also led to torture committed upon the opposite party. This resulted in a case instituted by the opposite party under Section 498A IPC which was disposed of on the basis of a compromise. After the compromise, the opposite party was kept well for 3 years after which the demand of Rs. 50,000/- and the consequent torture resurfaced and due to non- fulfillment of the said demand, the petitioner left the opposite party at her parental house on 25.05.2013. The opposite party 4 had left all her jewelry at her matrimonial house. After 2 weeks of the opposite party being kept at her parent's place, the petitioner had called her over phone and disclosed that he is not ready to keep the opposite party with him and he desires to solemnize another marriage. Despite efforts made from the side of the opposite party to settle the matter, the petitioner was adamant in not keeping the opposite party with him and the opposite party was constrained to file a case of maintenance being Case No. 156 of 2015.
6. Based on the pleadings of the parties, the following issues were framed for adjudication:
(I) Whether the suit as such filed is maintainable in its present form?
(II) Whether the plaintiff-petitioner has valid cause of action for the suit?
(III) Whether the opposite party Nitu Kumari has treated the petitioner Birju Prasad with cruelty of such a nature that it is not possible for petitioner to live under nuptial bond with the O.P.?
(IV) Whether the opposite party had voluntarily deserted the petitioner Birju Prasad without any valid cause for a continuous period of not less than 2 years immediately preceding the presentation of the petition?
(V) Whether the petitioner is entitled to get decree of divorce against the O.P.?
(VI) Whether petitioner is entitled for any other relief or reliefs as such claimed?
7. The Petitioner has examined three witnesses in support of its case.
8. A.W.1 Damodar Prasad Gupta is the elder brother of the petitioner who has stated that the relationship between 5 the petitioner and the opposite party became strained after 2- 3 months of the marriage. He had never seen any moment of love or affection between them. There used to be quarrel between the petitioner and the opposite party with respect to establishing physical relationship. The opposite party had left her matrimonial house about 4½ years back and she never came back despite the efforts made by the petitioner.
In cross-examination he has deposed that a dowry related case was instituted against him by the opposite party in the year 2009 and after the matter was compromised the opposite party was taken to her matrimonial house by the petitioner where she stayed for 1 year and during this period the petitioner had visited his in-laws place on several occasions.
9. A.W.2 Birju Prasad is the petitioner who has stated about solemnization of his marriage with the opposite party. After marriage there never was any cordial relationship between him and the opposite party. So long as the opposite party stayed with him she was not ready for physical relationship. Whenever there was physical relationship the same was one sided with no inclination from the side of the opposite party. Due to such reluctance on the part of the opposite party he was mentally disturbed and he also could not have any issue. The opposite party after much persuasion was taken to Modi Seva Sadan, Ranchi for examination and the report was negative. The reluctance to sex by the opposite party was never disclosed to him by her family members prior to marriage. On 20.01.2011 the opposite party had left his house along with her brother and since then she is staying at her parents house. She had taken with her jewelry, clothes and other belongings and despite efforts made by him to bring her back she had refused to stay with him.
In cross-examination he has deposed that he was 6 given the power of attorney by the opposite party for a plot of land situated at Khata No. 268, Plot No. 544 in Mouja Khunti comprising of 3 decimals the registration of which was done on 04.08.2012. In December, 2012 the opposite party left for her parents place and on 31.08.2012 the said land was transferred in the name of his mother Kunti Devi. In the case instituted under Section 498A IPC and Section 3 / 4 of Dowry Prohibition Act, the matter was compromised and he had taken the opposite party with him to his house. Before the compromise was arrived at in the criminal case a compromise was already effected before the society in which it was agreed by him not to solemnise another marriage and the opposite party will have a right over his movable and immovable property. It is correct to say that he derived pleasure from his physical relationship with the opposite party.
10. A.W.3 Manju Devi is the neighbour of the petitioner who has stated that the relationship between the petitioner and the opposite party became strained after 1-2 years of marriage. The opposite party is staying at her parental place for the last 5-5½ years. The petitioner had made efforts to bring her back but it failed.
In cross-examination she has deposed that to resolve the marital discord between the petitioner and the opposite party a Panchayati was held, but she was not present in the Panchayati.
11. The opposite party has examined three witnesses on her behalf.
12. D.W.1 Chandan Kumar is the brother of the opposite party who has stated that after marriage the opposite party went to her matrimonial house where she involved herself in domestic chores and also took care of the elders of the family. From 2004 to 2008 he used to regularly converse over phone with the petitioner and he also used to come to the 7 matrimonial house of his sister but the petitioner never made any complaint against the opposite party. He has stated that for the purchase of a land the opposite party was pressurized to bring Rs 1,50,000/- and he and his father had arranged the said amount after which a land was purchased in the name of the opposite party. After purchase of the land the marital bliss resumed but in the year 2009 a demand of Rs. 50,000/- was made for purchasing a shop and on account of which the opposite party was physically and mentally tortured. The opposite party was constrained to file a criminal case at Khunti P.S. against the petitioner and her in-laws which was compromised and the opposite party was taken to her matrimonial house where there was a cordial relationship existing for 3 years. He has stated that the land which was purchased in the name of the opposite party was fraudulently transferred by the petitioner by forging a power of attorney to his mother Kunti Devi. On 25.05.2013 the petitioner and the opposite party went together to Aurangabad, the parental place of the opposite party where the petitioner stayed for a few days and left after giving an assurance that he will soon come back to take back the opposite party. After 2 weeks the petitioner called him up and disclosed his intention of solemnizing a second marriage. He and the others tried to make the petitioner understand but he was adamant and resultantly the opposite party had filed a case for maintenance. The opposite party is still ready and willing to stay with the petitioner.
In cross-examination he has deposed that after marriage the petitioner had come on several occasions to Aurangabad but he had never made any complaints against the opposite party. He does not have any proper knowledge about the personal life of the opposite party.
13. D.W.2 Dinesh Prasad is the father of the opposite party who has reiterated what has been stated by D.W.1 in his 8 sworn statement.
In cross-examination he has deposed that everything went well till 2012 and in 2013 the petitioner had come with the opposite party to his home and left after assuring to take her back after one month. A Panchayati was held in the year 2009 on the complaint that the petitioner commits assault upon the opposite party. He does not have any knowledge about any medical examination of the petitioner or the opposite party. It is true that he had given an amount of Rs.1,50,000/- to the petitioner for his business needs.
14. D.W.3 Nitu Gupta is the opposite party and the wife of the petitioner who has stated that after marriage she started leading a peaceful marital life at her matrimonial house in Kumhartoli, Karra Road, Khunti. She had performed her duties and obligations towards the petitioner and her in- laws and physical relationship was established with the petitioner as per the desire of the petitioner. In the year 2009 she was subjected to mental and physical torture for which she had instituted a case which was compromised. After the compromise she was taken back to her matrimonial house by the petitioner where both had a blissful marital life for 3 years. In the second year of her marriage the petitioner had demanded an amount of Rs. 1,50,000/- and when the same was fulfilled 3 decimals of land was purchased in her name. In the year 2012 the petitioner by practicing fraud had got the land transferred in the name of his mother Kunti Devi. She has stated that on 25.05.2013 the petitioner had left her parents place at Aurangabad with an assurance that she will be taken back by the petitioner after a few days and in the meantime the petitioner had called her and her family members and disclosed about his intention to solemnize a second marriage. She and the petitioner had appeared before the mediation centre on 14.12.2017 and she had gone to her 9 matrimonial house along with the petitioner on 17.01.2018 where she stayed till 19.01.2018 and she had appeared before the court on 20.01.2018 and the petitioner expressed his intention of not keeping her and had sent her to her parental house with her brother.
In cross-examination she has deposed that till 2013 there was no trouble in her marital life. She was not given proper food at her matrimonial house and her clothes used to come from her parents place. The petitioner never used to purchase her the basic necessities. After 2009 quarrel started between her and the petitioner and torture was made upon her due to which she had lodged a case against the petitioner. She had instituted the case as her husband and in- laws had tried to set her ablaze after pouring kerosene oil over her. There used to be physical relationship between her and the petitioner with their consent. She had gone to her parents place on 25.05.2013 and since then she is residing there. The petitioner had never taken her for treatment to a doctor but had taken her to occult practitioners. She has denied that her medical examination was conducted at Nagarmal Modi Seva Sadan. She has expressed her desire to stay with the petitioner.
15. It has been submitted by Mr. Chanchal Jain, learned counsel for the petitioner / appellant that both the parties are residing separately since the last 14 years and the marriage between the parties has broken down irretrievably. The plea of the petitioner that the opposite party has denied him sexual pleasure which constitutes mental cruelty, has been erroneously rejected by the learned trial court. The refusal on the part of the opposite party to undergo medical examination herself is suggestive of the fact that the opposite party was incapable to engage herself in a sexual relationship with the petitioner. The opposite party had neglected to perform her marital duties and obligations which can be 10 inferred from the evidence of the witnesses and this would also amount to a cruelty committed upon the petitioner by the opposite party. There has been an abandonment of the obligation of the opposite party towards the petitioner which would constitute desertion and the said factor has not been properly appreciated by the learned trial court.
16. Mr. Ashok Kumar Pandey, learned counsel appearing for the opposite party / respondent has submitted that the petitioner has miserably failed to prove "cruelty" as well as "desertion". The evidence of the petitioner and his witnesses itself demolishes the claim that the opposite party was averse to sexual intercourse and there is no document on record to substantiate such assertion of the petitioner. The issue of desertion is redundant since the period of two years the couple last resided together has not been proved by the petitioner. In fact, it was the opposite party who was at the receiving end of the torture unleashed by the petitioner and his family members which led her to institute a criminal case which was, however, disposed of on account of a settlement arrived at between the parties.
17. We have heard the learned counsel for the respective parties and have also perused the trial court record.
18. The issue of "cruelty" as raised by the petitioner is predominantly based upon the incapability of the opposite party in establishing physical relationship with the petitioner. Doubt has been made by the petitioner upon the potency of the opposite party considering her reluctance in consenting to sexual intercourse. As per A.W.2 (petitioner) he after much persuasion had convinced the opposite party to visit a doctor and though such exercise was undertaken but the petitioner has not brought on record any document of the said examination to bolster his assertion. The petitioner has taken 11 a plea that the report was never shared to him by the opposite party. This statement appears to be farfetched as it was at the instance of the petitioner the opposite party had visited the doctor and if such fact was true, the petitioner would have had some documents in support of the same rather than unnecessarily putting the ball in the court of the opposite party. Absence of any documentary evidence supporting the incapability of the opposite party to have physical intimacy with the petitioner, the vagueness of the evidence of the petitioner concerning the said issue and the firm denial on the part of the opposite party does not validate the contention of the petitioner. In fact such claim has been decimated by the petitioner himself as in his cross-examination as A.W.2 he has categorically stated that he used to derive sexual pleasure on account of his union with the opposite party.
19. Mr. Chanchal Jain, learned counsel for the petitioner / appellant has referred to the case of V. Bhagat versus D. Bhagat reported in (1994) 1 SCC 337 wherein it has been held as follows:-
"16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having 12 regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."
20. In the case of Samar Ghosh versus Jaya Ghosh reported in (2007) 4 SCC 511 it has been held as follows:-
"101. 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 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 13 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 sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical 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.
102. When we take into consideration aforementioned factors along with an important circumstance that the parties are admittedly living separately for more than 14 sixteen-and-a-half years (since 27-8-1990) the irresistible conclusion would be that matrimonial bond has been ruptured beyond repair because of the mental cruelty caused by the respondent."
21. In the case of Seema versus Vijay Kumar reported in 2023 SCC online Del 5761 it has been held as follows:-
"23. In the case of Rajeev Chadha v. Shama Chadha Nee Shama Kapoor, (2012) 188 DLT 313, this Court observed that the marriage without sex is an anathema and denial of sex in marriage has extremely unfavourable influence and there is nothing fatal to marriage than disappointment in sexual relationship.
24. In ShakuntalaKumari v. Om Prakash Ghai, AIR 1983 Del 53, it was observed that wilful denial of sexual relationship by a spouse amounts to cruelty, especially when the parties are newly married and this itself is a ground for grant of divorce."
22. It is no doubt true that denial of sex in marriage can be primary reason for mental discord and would amount to "cruelty" but such claim has to be backed up by valid reasonings which unfortunately is lacking in the present case as we have noted above and therefore the issue of cruelty based on the purported claim of the petitioner of being deprived of sexual pleasure in his marital life due to the non- cooperation of the opposite party is negated by us.
23. Certain other instances of "cruelty" has been sought to be highlighted by the learned counsel for the petitioner but the same are vague and are not of such a nature that it would be an impossibility for the petitioner to continue his marital life with the opposite party. In fact such assertion seems to be the normal wear and tear a marital relationship undergoes.
24. So far as the issue of "desertion" is concerned, it appears from the evidence of the opposite party and her witnesses that a demand of Rs. 1,50,000/- was made from the 15 opposite party for which a criminal case was instituted which was disposed of based on a compromise between the parties. There was a lull for some time after the demand was fulfilled and a plot of land was purchased in the name of the opposite party after which the demand resurrected in the form of Rs. 50,000/- for purchasing a shop. The opposite party (D.W.3) claims that on 25.05.2013 the petitioner had left her at her parent's house but never came back to take her back despite an assurance made by him. If this is accepted, the issue of desertion becomes an exercise in futility. Even if we leave aside such assertion by the opposite party, the petitioner has been unable to prove that there has been a willful abandonment on the part of the opposite party and permanent forsaking of the petitioner by the opposite party; rather the cause of living separately seems to be on account of the torture meted out to the opposite party by the petitioner.
"Desertion" therefore has also not been proved by the petitioner.
25. Consequent to the discussions made herein above, we do not find any reason to cause interference in the impugned judgment and decree dated 21.06.2019 (decree signed on 02.07.2019) passed by Sri Rajesh Kumar No. 1, learned District and Additional Sessions Judge-I, Khunti in Matrimonial Title Suit No. 270 of 2013 and consequently we dismiss the present appeal.
26. Pending interlocutory application(s), if any, stand(s) closed.
(Rongon Mukhopadhyay, J.) (Arun Kumar Rai, J.) Dated: 3rd November 2025 Shamim/-