Jharkhand High Court
Mahadev Das vs Sanchita Das on 16 April, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
( 2025:JHHC:11513-DB )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No.134 of 2023
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Mahadev Das, Aged about 34 years, S/o-Shri Surendra
Das, R/o-Vill-Dugdha, P.O. and P.S.-Gamharia, District-
Seraikella-Kharsawan, Jharkhand, Pin-832108, UID No.
5551 6620 9111, Mobile No. 8210530524/9431364604.
Email [email protected]
.... Respondent/Appellant
Versus
Sanchita Das, Aged about 29 years, W/o Mahadev Das,
D/o-Shri Gurupada Das, UID No. 8194 9592 7338, Mob
No.-
8373853459/8860963459/7858002022/8092337908/
9939745218/9547519840/9931155174/8863814072,
EmailID- nisha.sanchita @ gmail.com,
[email protected].
Present Address-Sanjeeb Baran Khan (S/0-Mr. Dulal
Chandra Khan), Vill-Gohalbati, P.O. + P.S-Habra, District-
North 24 Parganas, West Bengal, Pin- 743263.
And
Permanent Address - Pragati Nagar, Near Adarsh Vikash
Vidyalay, Station Road, Bara Gamharia, P.O.-Gamharia,
P.S. Adityapur, District - Seraikella-Kharsawan,
Jharkhand, Pin-832108.
.... Petitioner/ Respondent
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : In Person
For the Respondent : Mr. Mahesh Kumar Sinha, Advocate
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Order No. 10/Dated: 16th April, 2025
Per Sujit Narayan Prasad, J.
Prayer:
1. The instant appeal has been filed challenging the legality and propriety of impugned judgment passed on 1 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) 10.05.2023 and decree signed on 22.05.2023 by learned Principal Judge, Family Court, Seraikella-Kharsawan whereby and whereunder the Original Suit No. 24 of 2019 filed by the respondent-wife under Section 13(1)(i-
a)(ib) of the Hindu Marriage Act, 1955 for a decree of divorce has been allowed and marriage between the appellant-husband and respondent-wife stands dissolved.
Factual Aspect:
2. The facts, briefly narrated in the plaint, is that, marriage of the appellant and respondent was solemnized on 05.05.2011 according to Hindu rites and customs at the parental house of the respondent-wife at village Pragati Nagar, Seraikella-Kharsawan in presence of common well-wishers, friends and relatives of the parties.
3. It is stated that as per demand of the appellant-
husband and his other family members, the father of the respondent-wife gave gold jewelry worth Rs. 2,00,000/- as dowry at that time. It is pleaded that after marriage the respondent-wife went to her matrimonial house, started living there as husband and wife, the marriage consummated also, but no child could be born from the said wedlock and unfortunately such cordial relationship could not continue for any longer period of 2 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) time and the same could not be settled despite intervention of common well-wishers.
4. It is further pleaded that gradually the matter went up to its extreme on the ground of demand of dowry and and the respondent-wife was subjected to cruelty, both mentally and physically at the hands of appellant- husband as well as by her in-laws, which compelled her to file a criminal case against him which was registered as Adityapur P.S. case No.96/18 under Section 498A of the IPC and Section 3/4 of the D.P. Act.
5. It is further pleaded that during the criminal proceeding, the parties agreed to resolve their dispute by dissolution of marriage on mutual consent, as such Suit being Original Suit No.41 of 18 was preferred, but that could not continue due to lack of proper steps by the appellant-husband as alleged by the respondent-wife and as such disposed of vide order dated 23.01.2019.
6. It is further stated that the respondent-wife, was deserted at the hands of appellant for more than 2 years and has been subjected with cruelty, both mentally and physically, by him which compelled her to file another suit for dissolution of marriage being Original Suit No. 24 of 2019, the subject matter of instant first appeal.
7. It is further stated that since 23.10.2016 the parties 3 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) have not resided together as husband and wife, making the day as cause of action of the Original Suit which was filed.
8. Further, in the petition for permanent alimony the petitioner, the respondent-wife herein, has stated on account of her financial condition, as well as in the light of the petition for withdrawal of the Maintenance Case No. 06 of 2020, she is entitled for permanent alimony as one time settlement.
9. The appellant-husband appeared in the suit and filed written statement whereby though admitted the marriage but stated that neither any documentary proof of marriage nor the name of any person attending the said marriage has been disclosed. The appellant- husband denied the allegation of demand of dowry and submitted that the respondent-wife did not stay in her matrimonial house as a newly wedded wife and on the instigation of her parents, the petitioner-wife engaged herself in illegal acts and alleged that whenever the wife conceived with baby she used to get the pregnancy aborted for the purpose of second marriage without any obstacle.
10. Further allegation has been made in the written statement that the respondent-wife without the consent 4 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) of her husband, the appellant herein, used to go for teaching in Adarsh Vikas Vidyalaya in the morning at 7.00 am and used to return by 6-7 pm and many times went to go her maike (parental house). It is further stated that the respondent-wife used to live like unmarried and talk on mobile and evade to lead conjugal life.
11. On the issue of permanent alimony, serious allegation has been made on her character and it is stated that the respondent-wife is earning member as she is a teacher in private school and also doing work in private company.
12. In support of their allegations and counter-allegations, the respondent-wife adduced four witnesses, including herself and also produced many documents whereas the appellant-husband in defence only examined himself and produced many documents, which were marked as Exhibits.
13. The learned Principal Judge, after hearing learned counsel for the parties, framed six issues for adjudication of the lis, which were decided against the appellant-husband and in favour of respondent-wife and decreed the suit on contest in the following terms:
"The suit is decreed on contest. The marital tie dated 5 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) 05.05.2011, between the petitioner namely Sanchita Das and Mahadev Das (more fully described in tittle page of the plaint) is hereby dissolved by a decree of divorce and same shall be held effective from the date of passing of the decree. An order to pay permanent alimony at the tune of ₹5,0000/- (five lac) in favour of the petitioner u/s 25(1) of the Hindu marriage Act is also passed, to be paid by the respondent within two months of the date of decree. There shall be no order so as to cost."
14. The appellant-husband, being aggrieved with the judgment passed on 10.05.2023 and decree signed on 22.05.2023 by learned Principal Judge, Family Court, Seraikella-Kharsawan approached this Court by filing the instant appeal.
Submission by the appellant-husband in person:
15. The appellant-husband in-person has submitted that the learned family court has wrongly come to the conclusion that respondent-wife was subjected to cruelty by demanding dowry and merciless assault by the appellant-husband as there is no evidence to that effect, as such the decree of divorce passed on that ground is not sustainable in the eye of law.
16. Submission has been made that it is the appellant-
husband who has suffered loss of reputation because of filing criminal case under Section 498A IPC and 3/4 of the Dowry Prohibition Act by the respondent-wife, which 6 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) ultimately proved to be false. But that aspect of the matter has not been taken into consideration by the learned Family Court.
17. Further, the respondent-wife did not attend the mediation, as directed by the Court of law and stayed for a long period of time with one Sanjib Baran Khan in breach of contract of marriage.
18. The appellant-husband on the aforesaid ground has submitted that but the learned Principal Judge, Family Court without taking note of these facts into consideration has passed the decree of divorce on the ground of cruelty, which requires interference by this Court.
19. So far as the issue of permanent alimony is concerned, submission has been made that the respondent-wife had separately filed one maintenance case being Maintenance Case No. 06 of 2020, which was withdrawn by the respondent-wife. Further, no evidence has been led about his earning, however, it is admitted fact that the respondent-wife is an earning lady. But the learned Principal Judge without considering these facts has passed the order of permanent alimony also, which also requires interference.
Submission on behalf of respondent-wife: 7 F.A. No. 134 of 2023
( 2025:JHHC:11513-DB )
20. Learned counsel for the respondent-wife, defending the impugned order, has taken the ground stating, inter alia, that it is a case where the decree of divorce has been passed on the ground of cruelty and desertion.
21. Learned counsel for the respondent-wife has submitted that it is the specific plea of the husband that after solemnization of marriage he is living separately, as would be evident from the testimony of the witnesses and findings recorded by the Principal Judge in the impugned judgment. Therefore, questioning the judgment and decree of divorce on the ground of desertion is not available with the appellant-husband as he himself has admitted that he is living separately with the respondent-wife.
22. Submission has been made that the learned Principal Judge, Family Court on the backdrop of the evidence led by the parties has come to the conclusion that the respondent-wife has been able to make out a case for cruelty attributed to her by the appellant-husband in such a manner that the conduct of the husband has inflicted such mental pain and suffering, as would make it impossible for the respondent-wife to live with the appellant-husband.
23. Further, the family court has come to the conclusion on 8 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) the basis of evidence available on record and the parameters required for desertion, the respondent-wife has been able to prove the case of desertion by the appellant-husband since last more than two years prior to filing of the suit, they were living separately.
24. So far as the issue of permanent alimony is concerned, submission has been made that the learned Principal Judge taking into consideration the fact that earlier to the judgment passed by the court since there was settlement between the parties for one time settlement as Rs. 2,74,000/-, as such even waiving of the claim of maintenance by the wife in the proceeding under Section 125 Cr.P.C. in Maintenance Case No. 06 of 2020 against the respondent, awarded the permanent alimony, which requires no interference by this Court.
25. Learned counsel for the respondent-wife on the aforesaid grounds has submitted that the impugned judgment requires no interference by this Court. Analysis:
26. We have heard the appellant in-person as also learned counsel for the respondent-wife and perused the material available on record and the finding recorded in the impugned order.
Issues for Determination:
9 F.A. No. 134 of 2023
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27. From the pleadings available on record and the arguments advanced on behalf of parties, the issues which require consideration are as to:
I. Whether the judgment and decree of divorce passed on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act and/or on the ground of desertion under Section 13(1)(ib) requires interference?
II. Whether the permanent alimony, as awarded by the Family Court, requires interference by this Court?
28. This Court, for consideration of the aforesaid issues, requires to consider the testimonies of the witnesses, as available on record.
29. In support of her case, the respondent-wife has adduced five witnesses, relevant portion of which is mentioned in the impugned judgment, is mentioned as under:
"P.W. 1 father of the petitioner has supported the fact of marriage on 05.05.11, residing his daughter in matrimonial home after second day of marriage, and belongings worth Rs. 2,00,000/- given in marriage to the respondent and their parents on their demand but the same was sold out with started the problems and after one years of the marriage gradually the behaviour 10 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) of the respondent became rude and aggressive and he used to quarrel and assault, stop the food and cloth and also started demanding money as dowry which when denied the petitioner was again subjected to torture and finally on 23.10.16 the respondent bring the petitioner to his house. It is further stated that in his house also the respondent used to come, demanded money and made assault to the petitioner, then Aditityapur P.S. case No. 96/18 u/s 498A and 3/4 D.P. Act was instituted and charge-sheet has also been filed against the respondent. He also stated about the case of mutual divorce bearing No.41/18 but on account of non agreeing by the respondent the case was disposed of on 23.01.19 and on account of such the present petition has been filed. In cross examination he has supported his statement and has denied the suggestions of the case of the respondent and stood static to prove himself a trust worthy witness.
P.W.2 Kamta Singh has filed his affidavit with same statement as of the P.W1 and as such, the same is not to be repeated. In cross examination he has stated that he will recognize the respondent but in same para 12, he failed to recognize the respondent present in court. Further this witness has proved himself as a hearsay witness, as in entire reply and specially in para 21, has 11 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) stated that he derived the entire information from father of the petitioner, Gurupado Das.
P.W.3 Durgesh Kumar Rana has filed his affidavit with same statement as of the P.W1 and as such the same is not to be repeated. In cross-examination he has also proved himself as hearsay witness as on most of the questions on material points stated in the deposition, he has stated that the facts have been told to him by Gurupado Das.
The petitioner has been examined as P.W.4 supporting the entire case and in cross-examination has also sticked to her statement stated in the pleading and deposition on oath. She has been tested on many counts and replied that she was regularly tortured in matrimonial home, selling of her jewelries by the respondent, opening of bank account only but no deposit was made, has fairly admitted that she worked as teacher and in Medi Tech company and was getting salary also. In cross-examination she has also replied that, since 2012 till 2016 she used to go and come from matrimonial home to maike. She has denied the allegation of taking gold loan on the ornaments and put entire story on the respondent, who took ornament on plea to keep in locker, but took gold loan, repay the same and received the ornament also. Regarding not 12 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) having any issue, this fact has been stated that after knowing the behaviour of her husband as cheater, she did not think for that and has also denied any story of abortion. She has also denied the suggestion of the respondent that he resided in her patemal home till 2018 and this is also not the case of the respondent. She has admitted the settlement arrived at the time of filing the mutual divorce and has fairly admitted that most of the articles have been returned by the respondent. Regarding questions of her Facebook account and details as produced by the respondent she has replied that the same was opened by her husband who operate the same also and in 2016 she has opened her Facebook account. She has denied that a false case has been filed. I find no material contradiction to discredit her testimony.
The respondent in his examination in chief has imputed character assassination of the wife. In para 1 of examination in chief, it has been stated on oath that the petitioner is unmarried and he is not as husband for her but a customer since, she along with her mother Roboti Das @ Babita Das are doing prostitution and apart him, there are several other customers of her and at presently she is living with Sanjib Baran Khan of Habra, Dist 24 South Pargana West Bengal. Further in 13 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) para 3 again this nasty allegation of prostitution has been leveled against the petitioner and her mother, by saying that this sex business is run by her father. It is further deposed in specific manner that, she is member of a group headed by her father and the members are involved in earning money through prostitution and several other illegal activities. In Para 6 it is again asserted by the respondent that the petitioner and his mother are regularly being sent to Kolkata for prostitution which is continuing. In para 7 it is alleged that the petitioner became pregnant with her male friend namely Manoj and the pregnancy was aborted. Similar allegation has been imputed in para 11 with male friend Srikant Das. In para 8 also it has been alleged that the petitioner as call girl used to go in night in different hotel with her male customers.
During cross examination respondent was asked about help of her father in prostitution and earning money, but he denied to have any document. He has made specific allegation of pregnancy of the petitioner by naming the person and story of abortion, but has failed to discharge the onus in proving the facts supra as the initial burden was always on him to substantiate the allegations."
30. Besides oral evidence, the parties have also adduced the documentary evidence, which were marked as exhibits. 14 F.A. No. 134 of 2023
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31. From the testimony, as referred hereinabove, it is evident that P.W. 1-Gurupado Das, who is the father of the respondent-wife, has all along supported the fact of marriage being solemnized on 05.05.2011 and has deposed that immediately after marriage his daughter went to her matrimonial home i.e., after second day of marriage, and belongings worth Rs. 2,00,000/- were given in marriage to the appellant-husband and thisheir parents on their demand but the same was sold out. Further, the father of the respondent-wife has deposed that after one years of the marriage gradually the behaviour of the appellant-husband became rude and aggressive and he used to quarrel and assault as also stopped the food and cloth and further started demanding money as dowry which when denied the petitioner was again subjected to torture. It is further stated that in his house also the respondent used to come, demanded money and made assault to her daughter, which prompted for filing criminal case being Aditityapur P.S. case No. 96 of 2018 under Section 498A IPC and under Section 3/4 D.P. Act in which charge- sheet has also been filed against the respondent. He has further deposed that though case of mutual divorce was filed but on account of non-agreeing by the respondent, 15 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) the appellant herein, the case was disposed of vide order dated 23.01.2019. In cross examination his version remained the same.
32. P.W.2 Kamta Singh and P.W.3 Durgesh Kumar Rana are a hearsay witness who has stated that they derived the entire information from father of the petitioner, namely, Gurupado Das.
33. The respondent-wife has been examined as P.W.4 who has all along supported the entire case. She has stated that she was regularly tortured in matrimonial home and has stated that her jewelries were sold out. However, she has fairly admitted that she worked as teacher and in Medi Tech company and was getting salary also. Further, in cross-examination she has also replied that, since 2012 till 2016 she used to go and come from matrimonial home to maike. She has denied the allegation of taking gold loan on the ornaments. She has also denied any story of abortion. She has admitted the settlement arrived at the time of filing the mutual divorce and has fairly admitted that most of the articles have been returned by the respondent. Regarding questions of her Facebook account and details as produced by the respondent she has replied that the same was opened by her husband who operate the same 16 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) also and in the year 2016 she has opened her Facebook account.
34. The learned Principal Judge, from the statements of the witnesses so produced by the respondent-wife, has come to the conclusion that cruelty by appellant- husband in the matrimonial house to the petitioner has sufficiently been proved by the petitioner-wife and her father, who are the most competent persons which forced her to leave the matrimonial house and she is facing the effect of the same as mental cruelty which has compelled her to file criminal case as well as this case, to end the marital tie.
35. The appellant-husband has been examined as D.W. 1 before the Family Court, who in his examination in chief has questioned the character of the wife. In examination in chief, he has stated that the petitioner, the respondent herein, is actually unmarried and he is not her husband for her but a customer since, she along with her mother Roboti Das @ Babita Das are doing prostitution business and apart from him, there are several other customers of her and at present she is living with one Sanjib Baran Khan of West Bengal. Further he has deposed that this sex business is run by her father. It is further deposed in specific manner that, 17 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) she is member of a group headed by her father and the members are involved in earning money through prostitution and several other illegal activities. At Para 6 it has been reiterated that the petitioner, the respondent herein, and her mother are regularly being sent to Kolkata for prostitution which is continuing. At paragraph 7 of examination-in-chief, it is alleged that the petitioner became pregnant with her male friend namely Manoj and the pregnancy was aborted. Similar allegation has been with other person. At paragraph 8, it has been alleged the respondent-wife as call girl who used to go in night in different hotel with her male customers.
36. But, in cross examination, when confronted that how he came to know about help of her father in prostitution and earning money, he denied to have any document. He has made specific allegation of pregnancy of the petitioner by naming the person and story of abortion, but has failed to discharge the onus in proving the facts as the initial burden was always on him to substantiate the allegations.
37. From the testimony so recorded of the appellant- husband, the learned Principal Judge, Family Court has come to the conclusion that impeachment of character 18 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) in such a nasty way of calling own wife as call girl involved in prostitution itself tentamount to severe nature of cruelty. The appellant-husband has repeatedly imputed the aforesaid nasty allegation against his wife. Therefore, from the statement of even appellant- husband it is evident case of cruelty has sufficiently been proved and the conduct of the appellant-husband has inflicted mental pain and suffering and in such circumstances it is not possible for wife to live with her husband, as such the ground of cruelty has sufficiently been proved.
38. Law is well settled that the allegation of illicit relationship is required to be established by leading evidence if the same is not established then in that circumstance it will be said to be cruelty meted out by the person who is making such allegation against the another.
39. Likewise, herein the husband, the appellant herein, has leveled the allegation of illicit relationship of respondent- wife but no evidence has been produced in support of such allegation and hence it is not the appellant- husband rather it is respondent-wife who will be said to be suffer from feeling of deep anguish, disappointment, agony and frustration.
19 F.A. No. 134 of 2023
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40. So far the allegation of cruelty is concerned, it requires to refer herein the definition of „cruelty' as has been defined by Hon‟ble Apex in the judgment rendered in Dr. N.G. Dastane Vs. Mrs. S. Dastane [(1975) 2 SCC 326], wherein it has been held that the Court is to enquire as to whether the 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.
41. The cruelty has also been defined in the case of Shobha Rani Vs. 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.
42. According to the Hon'ble Apex Court, "cruelty" is the "conduct in relation to or in respect of matrimonial conduct in respect of matrimonial duties and 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 20 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) of fact and degree."
43. The Hon'ble Apex Court has further observed therein that while dealing with such complaints of cruelty that 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."
44. The nature of allegations need not only be illegal conduct such as asking for dowry. Making allegations against the spouse in the written statement filed before the court in judicial proceedings may also be held to constitute cruelty.
45. In V. Bhagat vs. D. Bhagat (Mrs.), (1994)1 SCC 337, the wife alleged in her written statement that her husband was suffering from "mental problems and paranoid disorder". The wife's lawyer also levelled allegations of "lunacy" and "insanity" against the husband and his family while he was conducting cross- examination. The Hon‟ble Apex Court held these allegations against the husband to constitute "cruelty".
46. In Vijay kumar Ramchandra Bhate v. Neela Vijay Kumar Bhate, (2003)6 SCC 334 the Hon'ble Apex 21 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) Court has observed by taking into consideration the allegations levelled by the husband in his written statement that his wife was "unchaste" and had indecent familiarity with a person outside wedlock and that his wife was having an extramarital affair. These allegations, given the context of an educated Indian woman, were held to constitute "cruelty" itself.
47. The Hon‟ble Apex Court in Joydeep Majumdar v. Bharti Jaiswal Majumdar, (2021) 3 SCC 742, has been pleased to observe that while judging whether the conduct is cruel or not, what has to be seen is whether that conduct, which is sustained over a period of time, renders the life of the spouse so miserable as to make it unreasonable to make one live with the other. The conduct may take the form of abusive or humiliating treatment, causing mental pain and anguish, torturing the spouse, etc. The conduct complained of must be "grave" and "weighty" and trivial irritations and normal wear and tear of marriage would not constitute mental cruelty as a ground for divorce.
48. This Court, based upon the aforesaid discussions on the issue of cruelty, is of considered view that the issue of cruelty being meted out to the respondent-wife has sufficiently been proved not only from the testimony of 22 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) respondent-wife but also from the testimony of appellant-husband who has made serious allegation on the character of her wife but admittedly that could not be proved, which itself is a cruelty, since herein it is the husband who says about his own wife as call girl involved in prostitution which amounts to severe cruelty. Therefore, from the statement of even appellant- husband it is evident case of cruelty has sufficiently been proved and the conduct of the appellant-husband has inflicted mental pain and suffering and in such circumstances it is not possible for a wife to live with her husband.
49. However, so far physical torture is concerned, from the testimony so available on record, it has not sufficiently been proved, but cruelty as per the discussions made hereinabove and law laid down by Hon‟ble Apex Court that grave assault on the character, honour, reputation and status of the wife amounts to cruelty, this Court has no reason to take different view that has been taken by the learned Family Court proving the ground of cruelty.
50. Now coming to the issue of desertion, which is also taken as a ground for decree of divorce. It is evident from the from the plaint of the petitioner before Family 23 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) Court at paragraph 9, which has taken note in the impugned order, that the husband and wife are living separately since 23.10.2016 which has not been denied by the husband. The respondent-wife in her testimony has also reiterated the same version stating that the appellant-husband dropped her in maike on 23.10.2016 and since then there is no relationship as wife and husband in between them.
51. Learned Principal Judge, taking into consideration the fact that since more than two years before filing of the suit for divorce the matrimonial relationship between them has died, has come to the conclusion that the petitioner-wife, the respondent herein, has been able to prove desertion by her husband since last more than two years prior to filing of suit for divorce they are living separately. However, the appellant-husband came with an imaginary date of June, 2017 in order to frustrate the statutory period of two years as envisaged under sub-section (ib) of Section 13(1) of the Hindu Marriage Act, 1955 but no evidence was led in this respect, as such the same was discarded. Accordingly, the issue with respect to desertion was decided in favour of petitioner-wife and against the husband by the learned family court.
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52. The word „desertion‟ has been given in Explanation to Section 13 (1) wherein it has been stated that "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."
53. It is pertinent to note that the word „desertion‟, as has been defined in Explanation part of Section 13 of the Act, 1955, 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.
54. 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 25 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party."
55. 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.
56. 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.
57. 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 26 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) immediately preceding the presentation of the petition or, where the offence appears as a cross-charge, of the answer.
58. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted, desertion is a continuing offence.
59. It is, thus, evident from the aforesaid reference of meaning of desertion that the quality of permanence is one of the essential elements which differentiate 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.
60. 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 27 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) from the necessary intention aforesaid.
61. The Hon'ble Apex Court in Debananda Tamuli vs. Kakumoni Kataky, (2022) 5 SCC 459 has considered the definition of „desertion‟ on the basis of the judgment rendered by the Hon'ble Apex Court in Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40 which has been consistently followed in several decisions of this Court.
62. The law consistently has been laid down by this 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.
63. This Court, on the basis of discussions made hereinabove, is of the view that the petitioner-wife has sufficiently been able to prove the ground of desertion 28 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) for one of the grounds for divorce before the learned Family Court. As such, we have no reason to take a different view that has been taken by the learned Family Court proving the ground of desertion for granting decree of divorce.
64. Accordingly, issue no. 1 as framed by this Court is decided against the appellant-husband and it is held that the judgment and decree of divorce passed on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act and on the ground of desertion under Section 13(1)(ib) requires no interference by this Court.
65. Now, coming to the issue of entitlement of the respondent-wife of the permanent alimony, as awarded by the Family Court, it requires to mention herein that permanent alimony has been dealt under Section 25(1) of the Hindu Marriage Act, 1955, which reads as under:
"25. Permanent alimony and maintenance.--(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any such payment may 29 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) be secured, if necessary, by a charge on the immovable property of the respondent (2) If the court is satisfied that there is, a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem jus (3) If the court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just."
66. The issue of permanent alimony/maintenance has elaborately been dealt with by Hon‟ble Apex Court in the case of Rajnesh v. Neha & Anr. (2021) 2 SCC 324 which is the leading case law in the field, wherein the Hon‟ble Apex Court taking into consideration all aspects of the matter in granting permanent alimony/maintenance, has given certain directives and also the yardstick have been given for assessing the permanent alimony. For ready reference, the relevant paragraphs of the judgment wherein law has been laid down for permanent alimony is quoted as under:
"Permanent Alimony:
73. Parties may lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before the court concerned, for fixing the permanent alimony payable to the spouse.30 F.A. No. 134 of 2023
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74. In contemporary society, where several marriages do not last for a reasonable length of time, it may be inequitable to direct the contesting spouse to pay permanent alimony to the applicant for the rest of her life. The duration of the marriage would be a relevant factor to be taken into consideration for determining the permanent alimony to be paid.
75. Provision for grant of reasonable expenses for the marriage of children must be made at the time of determining permanent alimony, where the custody is with the wife. The expenses would be determined by taking into account the financial position of the husband and the customs of the family
76. If there are any trust funds/investments created by any spouse/grandparents in favour of the children, this would also be taken into consideration while deciding the final child support.
67. Further the Hon‟ble Apex Court from paragraphs 77 to 85 has laid down the criteria for determining the quantum of maintenance taking into consideration the objection of granting interim/permanent alimony to ensure that dependent spouse is not reduced to destitution or vagrancy on account of failure of marriage and not as a punishment to the other spouse by taking into various factors viz. Status of the parties; reasonable wants of the claimant; the independent income and property of the claimant; the number of persons, the non-applicant has to maintain etc. For ready reference, the relevant paragraphs of the judgment is quotes as under:
31 F.A. No. 134 of 2023
( 2025:JHHC:11513-DB ) "Criteria for determining quantum of maintenance
77. The objective of granting interim/permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse.
There is no straitjacket formula for fixing the quantum of maintenance to be awarded
78. The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. [ Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7; Refer to Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112 : (2012) 3 SCC (Civ) 290]
79. In Manish Jain v. Akanksha Jain [Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712] this Court held that the financial position of the parents of the applicant wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the court should mould the claim for maintenance 32 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) based on various factors brought before it.
80. On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able- bodied and has educational qualifications. [Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 303 : (2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri) 339]
81. A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home. [Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356] The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.
82. Section 23 of the HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of the HAMA provides the following factors which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for 33 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) the same, (iv) value of the claimant's property and any income derived from such property, (v) income from claimant's own earning or from any other source.
83. Section 20(2) of the DV Act provides that the monetary relief granted to the aggrieved woman and/or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.
84. The Delhi High Court in Bharat Hegde v. Saroj Hegde [Bharat Hegde v. Saroj Hegde, 2007 SCC OnLine Del 622 : (2007) 140 DLT 16] laid down the following factors to be considered for determining maintenance : (SCC OnLine Del para 8 "1. Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.
4. The number of persons, the non-applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.
6. Non-applicant's liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and treatment, etc. of the applicant.
8. Payment capacity of the non-applicant.
9. Some guesswork is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded under Section 125 CrPC is adjustable against the amount awarded under Section 24 of the Act."
85. Apart from the aforesaid factors enumerated 34 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) hereinabove, certain additional factors would also be relevant for determining the quantum of maintenance payable."
68. In the case at hand, it is admitted fact that the respondent-wife is earning, which has been admitted by the respondent-wife in her testimony also. The factor where the wife is earning some income has also been dealt with by Hon‟ble Apex Court in the said case and laid down at paragraph 90 as under:
"Where wife is earning some income:
90. The courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The courts have provided guidance on this issue in the following judgments:
90.1. In Shailja v. Khobbanna [Shailja v. Khobbanna, (2018) 12 SCC 199 : (2018) 5 SCC (Civ) 308; See also the decision of the Karnataka High Court in P. Suresh v. S. Deepa, 2016 SCC OnLine Kar 8848 : 2016 Cri LJ 4794 (Kar)] , this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. [Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356] Sustenance does not mean, and cannot be allowed to mean mere survival. [Vipul Lakhanpal v. Pooja Sharma, 2015 SCC OnLine HP 1252 : 2015 Cri LJ 3451] 90.2. In Sunita Kachwaha v. Anil Kachwaha [Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715 : (2015) 3 SCC (Civ) 753 : (2015) 3 SCC (Cri) 589] the wife had a 35 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.
90.3. The Bombay High Court in Sanjay Damodar Kale v. Kalyani Sanjay Kale [Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLine Bom 694] while relying upon the judgment in Sunita Kachwaha [Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715 : (2015) 3 SCC (Civ) 753 : (2015) 3 SCC (Cri) 589] , held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance.
90.4. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Parkash v. Shila Rani [Chander Parkash v. Shila Rani, 1968 SCC OnLine Del 52 : AIR 1968 Del 174] . The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the court. 90.5. This Court in Shamima Farooqui v. Shahid Khan [Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705 : (2015) 3 SCC (Civ) 274 : (2015) 2 SCC (Cri) 785] cited the judgment in Chander Parkash [Chander Parkash v. Shila Rani, 1968 SCC OnLine Del 52 : AIR 1968 Del 174] with 36 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife.
69. At the concluding paragraph 134, the Hon‟ble Apex Court, considering the importance of the judgment, has directed it is circulate the judgment to all the Districts, the said paragraph is quoted as under:
"134. A copy of this judgment be communicated by the Secretary General of this Court, to the Registrars of all High Courts, who would in turn circulate it to all the District Courts in the States. It shall be displayed on the website of all District Courts/Family Courts/Courts of Judicial Magistrates for awareness and implementation."
70. This Court, in the touchstone of aforesaid judgment, now coming to factual aspect involved in the present case so far as the issue of permanent alimony is concerned.
71. The learned Family Court has taken note of the fact that though no fact/statement regarding the income of the husband has been pleaded in the plaint, however, his occupation has been described as „private sector‟ and accordingly, a separate demand of permanent alimony to the tune of Rs. 15,00,000/- has been made. However, no separate document of the husband has been placed before the Family Court by either of the parties. On the other hand, the respondent-husband, the appellant herein, has mentioned the account details of the 37 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) petitioner-wife, the respondent herein, showing her to be financially sound.
72. P.W. 1, father of the petitioner-wife, in his testimony has admitted the fact at paragraph 40 that her daughter used to teach in Adarsh Vidyalaya.
73. However, before the Family Court, the petitioner-wife has produced one agreement dated 25.11.2018, which is admitted document and has been marked as X for identification and exhibited as Exhibit I/1. The agreement dated 25.11.2018 shows that the articles exchanged/given at the time of marriage for which amount equivalent amounting to Rs. 2,74,000/- was to be returned to the wife or her father within one year. It is stated that the said document/agreement was to be furnished in the petition for mutual divorce in earlier round of litigation but the said case was disposed of before final settlement could have been arrived at between the parties. Therefore, the said amount could not be given to the petitioner-wife by the husband.
74. The learned Family Court, on the basis of aforesaid fact, has come to the conclusion that the income of the appellant is not specific. Further, the status and living standard of the parties and their living is based on income but the same is not on record. However, it has 38 F.A. No. 134 of 2023 ( 2025:JHHC:11513-DB ) come that the respondent-wife was working as teacher in private school as well as in private company having some monthly income.
75. Further, the learned Family Court has considered that the only things remains that the parties with mutual consent had settled their monitory claim in the year 2018 vide agreement dated 25.11.2018 it was agreed that for the articles exchanged/given at the time of marriage amount equivalent amounting to Rs. 2,74,000/- was to be returned to the wife or her father within one year.
76. Learned Family Court has also taken note of the fact that now the petitioner-wife has waived her claim of maintenance as well, in proceeding under Section 125 Cr.P.C in Maintenance Case No. 06 of 2020 against the respondent-husband, the appellant herein, as such considering the fact that five years has lapsed since mutual agreement arrived at in year 2018 vide agreement dated 25.11.2018 whereby it was agreed that for the articles exchanged/given at the time of marriage amount equivalent to Rs. 2,74,000/- was to be returned to the wife or her father within one year, has enhanced the permanent alimony and decreed the suit in favour of petitioner-wife.
39 F.A. No. 134 of 2023
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77. This Court, has considered the fact that learned Family Court has also considered the fact about non-disclosure of the income of the appellant-husband in specific term and further it is admitted fact that the respondent-wife is earning by engaging herself in private school as also in private company. Further, before filing of the present suit, the parties had filed suit for mutual divorce in which an agreement was arrived by the parties in writing vide agreement dated 25.11.2018 whereby it was agreed that for the articles exchanged/given at the time of marriage amount equivalent to Rs. 2,74,000/- was to be returned to the wife or her father within one year, but it was not returned, therefore, under such circumstance, the Principal Judge, Family Court has awarded the permanent alimony, which requires no interference by this Court.
78. Though, there is some variation of the amount in figure/word, but none of the parties have raised any objection with respect to that, as such this Court is not going into that aspect of the matter.
79. Accordingly, issue no. II as framed by that Court is decided against the appellant-husband and it is held that the permanent alimony, as awarded by the Family Court, requires no interference by this Court. 40 F.A. No. 134 of 2023
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80. This Court, on the basis of discussions made hereinabove, is of the view that the judgment passed on 10.05.2023 and decree signed on 22.05.2023 by the learned Principal Judge, Family Court, Seraikella- Kharsawan whereby and whereunder the Original Suit No. 24 of 2019 filed by the respondent-wife under Section 13(1)(i-a)(ib) of the Hindu Marriage Act, 1955 for a decree of divorce has been allowed and marriage between the appellant-husband and respondent-wife stands dissolved, requires no interference by this Court.
81. Accordingly, the instant appeal fails and is dismissed.
(Sujit Narayan Prasad, J.) (Rajesh Kumar, J.) Alankar/-
A.F.R. 41 F.A. No. 134 of 2023