Jharkhand High Court
Sushma Kumari vs Amit Rakhit Son Of Late Tilak Rakhit on 26 March, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
2026:JHHC:8776-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No.246 of 2024
Sushma Kumari, aged about 31 years, wife of Amit Rakhit
and daughter of Mahadev Prasad, Permanent and Present
R/o H.No. 169, A-Block, Line No. 9, Tuiladungri, PO & PS
Golmuri near Kali Mandir, Jamshedpur, Jharkhand.
... ... Appellant/Appellant
Versus
Amit Rakhit son of Late Tilak Rakhit, Permanent and
Present resident of C/o Amit Kumar Simgh, Zone No. 7,
Birsanagar, Near Golmuri Club, P.O. & P.S.-Golmuri,
Jamshedpur, Jharkhand.
... ...Opp. Party/Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Ms. Neeharika Mazumdar, Advocate
For the Respondent:
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C.A.V. on 20th March, 2026 Pronounced on 26/03/2026
Per Sujit Narayan Prasad, J.
1. The instant appeal under Section 19(1) of the Family Court Act, 1984 is directed against the judgment dated 1st August, 2024 and decree dated 9th August, 2024 passed by the learned Principal Judge, Family Court, Jamshedpur in Original Suit No. 620 of 2021, whereby and whereunder, the suit filed by the appellant - [wife] for dissolution of marriage by decree of divorce u/s 13(1)(ib) of Hindu Marriage Act, 1955 against respondent/husband, has been dismissed.
2. In brief, the appellant's case is that the marriage of the appellant-wife and respondent-husband was solemnized on 14.8.2014 according to Hindu rites and custom at Shitla 1 2026:JHHC:8776-DB Mandir, Jamshedpur. The marriage was allegedly love-cum- arrange marriage as well as inter-caste marriage. After solemnization of marriage both parties started living together with in-laws members of the respondent. On 2nd June, 2015 the couple were blessed with a baby girl child, namely, Ananya Rakhit and further on 5th July 2017, they were blessed with another girl baby child, namely, Mahi Rakhit.
3. It is the case of the appellant that after the birth of the girls, temperament and taste of the respondent changed and he was not engaging himself in matrimonial duties against the appellant, however, the appellant tried to make the respondent understand his duties but respondent never took any interest. The mother-in-law did not even try to resolve the differences but also influenced the respondent and appreciate the respondent bitter act against the appellant. Whenever the appellant asked money for medical expenses the respondent raised objection and started quarrelling with filthy language and mother of respondent also encouraged which disturbed the peaceful environment of the family. In the year 2018, relationship between the appellant and respondent become so bitter that they even do not to talk with each other and it has become respondent's usual day routine to quarrel with filthy language with the appellant which also disturbed the environment of the house and the 2 2026:JHHC:8776-DB mother of the respondent always done job of pouring oil in the flame.
4. Thereafter, the respondent started to take alcohol and used to curse her about the two-girl child which was supported by her mother-in-law and due to behaviour and temperament of the respondent, the appellant made herself separated under the same roof and the conjugal life of both the parties came to an end on 23.06.2018. On 13.6.2019 when the appellant came home from the hospital, without any appropriate reason, the respondent started quarrelling with filthy languages and when the appellant tried to make the situation calm the respondent and his mother started beating her with fist and blows and pushed her out from the house.
5. It is further case of the appellant that due to all these events and regular quarrel between the parties the appellant decided to get separated and started living separately of the appellant's parent house since 14th July 2019 so that both the parties live their life peacefully. On 23rd July, 2019 the respondent along with his mother came to the house of appellant and started quarrelling with filthy languages and bitten her with fist and blows. All these events put a deep effect on the mind of the appellant and for this the appellant had to undergo for medical treatment of depression and hypertension. Further it is the case of the appellant that 3 2026:JHHC:8776-DB from 2018 the conjugal life between the parties was over and they were living separately from each other under same roof and from 14th July, 2019 due to so much of cruelty inflicted by the respondent upon the appellant, the appellant separated herself from the respondent and started living separately from the respondent. Under such circumstances, the appellant filed the suit being Original Suit No. 620 of 2021 u/s 13(1)(ib) of Hindu Marriage Act, 1955 for decree of divorce.
6. Before the family court, Respondent appeared and filed written statement denying the allegation leveled against him. However, the factum of marriage has not been disputed and admitted the fact that the marriage was a love-cum-arrange marriage as well as inter-caste marriage and after solemnization of marriage both the parties started living together at the house of the respondent and from their wedlock two girls were born.
7. On the contrary, allegation has been leveled that it is the appellant who always tortured the respondent mentally, physically and economically and all the allegations are false leveled by the appellant is false and as a matter of fact, the appellant herself along with her daughters left the house of the respondent on 13.9.2021 for the reason that on 13.9.2021, mother of the appellant came to the house of respondent and in evening when the respondent came to the 4 2026:JHHC:8776-DB home, the appellant demanded Rs.20,000/- for her mother which the appellant could not give as the respondent had no money in the bank, upon this the appellant used filthy languages and left the house of the respondent. Further ground was taken that there is no evidence of separation and no evidence regarding cruelty as such the appellant is not entitled for decree of divorce u/s 13(1)(ib) of Hindu Marriage Act.
8. Before the family court, the matter of the parties was referred to Mediation Centre, Jamshedpur but as per mediation report dated 16.05.2023 medication remained unsettled
9. On the basis of pleadings available on record, the learned Family Court, mainly framed the issue for consideration as to whether the marriage of the appellant and respondent is fit to be dissolved on the ground of desertion u/s 13(1) (i-b) of Hindu Marriage Act 1955; and accordingly evidence was adduced on behalf of parties.
10. In order to establish their case, from the side of the appellant following four witnesses have been examined; they are -P.W. 1-Sushma Kumari (Appellant herself); P.W. 2- Radha Devi (Mother of the appellant); P.W. 3-Birendra Kumar (father of the appellant); and Mukesh Ram (Brother of the appellant). On behalf of respondent, no oral or documentary evidence has been adduced.
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11. The learned Principal Judge, Family Court, Jamshedpur after appreciating the evidence adduced on behalf of parties, came to the conclusion that the appellant-wife, the appellant herein, has not been able to prove her case against the respondent-husband.
12. Accordingly, the suit for decree of divorce preferred by the appellant wife was dismissed, against which the instant appeal has been filed.
13. After filing of the appeal, the Co-ordinate Bench has issued notice upon the respondent-husband vide order dated 20.12.2024 both by registered post and ordinary process.
14. But as per office note dated 20.08.2025, it appears that no such person exists at the given address, as such fresh steps for service of notice was taken. For ready reference, order dated 25.08.2025 is quoted as under:
1. In pursuance of the order dated 20.12.2024, notice was issued to the sole respondent. However, as per the office note dated 20.08.2025, it appears that no such person exists at the given address.
2. Learned counsel appearing for the appellant, in view of the aforesaid, has submitted that he may be allowed to take fresh service of notice upon the sole respondent on his present and correct address.
3. In view thereof, let fresh notice be issued upon the sole respondent on his present and correct address under registered cover with A/D as well as ordinary process for which requisites etc. must be filed within a week.
15. Thereafter, the matter was taken up on 24th November, 2025. This Court perused the office note dated 6 2026:JHHC:8776-DB 20.11.2025,wherefrom it reflects that service report has been received showing that notice has been received by his mother, namely, Jharna Rakshit, jointness has been mentioned therein, therefore, the notice was held to be validly served. However, on that date none appeared on behalf of respondent-husband, as such with a view to give more chance, the matter was adjourned to be listed 09.12.2025. For ready reference, order dated 24.11.2025 is quoted as under:
"1. This Court has passed an order dated 25.8.2025 for issuance of fresh notice upon the sole respondent
2. Office note dated 20.11.2025 suggests that service report has been received showing that notice has been received by his mother, namely, Jharna Rakshit, jointness has been mentioned therein.
3. In the above circumstances, this court is of the view that notice has validly been served upon the respondent-husband, but today no one has appeared on his behalf.
4. With a view to give one more chance to the respondent- husband, this matter is adjourned to be listed on 09.12.2025."
16. Thereafter, the matter was taken up on 09.12.2025, but despite of service of notice and opportunity having been granted since no appearance was made on behalf of respondent-husband, as such matter was decided to be proceeded for further hearing. For ready reference, relevant portion of order dated 09.12.2025 is quoted as under:
"6.This Court, while passing the order dated 24.11.2025, accepted that the notice was validly served upon the respondent-husband. However, one more opportunity was given to the respondent-husband to put his appearance, but there is no appearance as yet.
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7. Considering the same, the matter is to be proceeded for further hearing.
8. Admit.
9. Call for the trial Court records."
Submission of the learned counsel for the appellant-wife:
17. It has been contended on behalf of the appellant that the factual aspect which was available before the learned family court supported by the evidences adduced on behalf of the appellant has not properly been considered and as such, the judgment impugned is perverse, hence, not sustainable in the eyes of law.
18. It has been submitted that the issue of cruelty has not been taken into consideration in the right perspective.
19. Submission has been made that the judgment passed by learned court below is perverse in the eye of law as the husband has committed mental as also the physical cruelty towards the appellant by continuous torturing the appellant.
20. It has been submitted that admittedly the marriage of the appellant and respondent was love-cum-arrange marriage but after she born two daughters, the behavior of the husband as also the in-laws changed completely. Her mother-in-law did not even try to resolve the differences but also influenced the respondent and appreciate the respondent bitter act against the appellant. It has become the habit of the respondent-husband to quarrel with filthy language after taking alcohol and mother of respondent also 8 2026:JHHC:8776-DB encouraged which disturbed the peaceful environment of the family.
21. Further submission has been made that due to behaviour and temperament of the respondent, the appellant made herself separated under the same roof and the conjugal life of both the parties came to an end on 23rd June, 2018.
22. It has been submitted that the respondent used to quarrel using filthy languages and when the appellant tried to make the situation calm the respondent and his mother started beating her with fist and blows and pushed her out from the house. For the reasons aforesaid, the appellant decided to get separated and started living separately of the appellant's parents house since 14th July 2019 so that both the parties live their life peacefully. But, the learned family court without taking into consideration these facts has come to the conclusion that the there are no sufficient evidence to prove that the act of the respondent was so cruel to live along with him and further respondent compelled the appellant to leave her matrimonial house, thus, there is no ground for grant of decree of divorce by way of desertion is made out.
23. Submission has been made that the relationship of husband and wife is on the thread of trust which itself has been broken and there is no chance of re-union.
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24. Learned counsel for the appellant, based upon the aforesaid grounds, has submitted that the judgment impugned suffers from perversity, as such, is not sustainable in the eyes of law.
Analysis:
25. This Court has heard the learned counsel for the appellant and gone through the finding recorded by the learned Family Judge in the impugned judgment as also the trial court record.
26. Before entering into merit of the case it needs to refer herein the conduct of the respondent-husband in participation of the court proceeding before this Court as also before the learned family court. Though, after issuance of notice, the respondent-husband appeared before the learned trial court and filed written statement but in spite of sufficient opportunity having been granted by the learned family court, he did not produce any oral or documentary evidence in support of his case. Furthermore, though this Court case has been filed in the year 2024 and despite several opportunity having been granted to the respondent-husband and notice having been validly served to him, he choose not to appear. Therefore, this Court had to proceed only with the material available on record and counter affidavit filed by him before the learned family court and other material available on record.
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27. Now coming to the merit of the case, the admitted fact herein is that the suit for divorce has been filed on the ground of desertion i.e., by filing an application under Section 13 (1) (i-
b) of the Hindu Marriage Act, 1955 and accordingly, issues have been framed and decided against the appellant/wife. Although the evidence has been led and cruelty has also been alleged by the petitioner/appellant wife but the suit was filed only on the ground of desertion, however, the ground of desertion has been made of cruelty meted out to her.
28. This Court, in order to appreciate the testimony available on record, has gone through the testimonies of the witnesses.
29. PW-1, Sushma Kumari is the appellant-wife herself, who has stated in her evidence on oath that respondent is her husband. Their marriage was solemnized on 14.8.2014 according to Hindu rites and custom at Shitla Mandir, Jamshedpur. On 2nd June, 2015 the couple were blessed with one baby girl child namely Ananya Rakhit and further on 5th July, 2017 another girl baby child namely Mahi Rakhit. After birth of second girl child the behaviour of the respondent changed towards the appellant and children and he was not fulfilling his responsibility. The appellant tried to make the respondent understand him but behaviour of the respondent could not be changed. The mother-in-law not even tried to resolve the differences but also influenced the 11 2026:JHHC:8776-DB respondent and appreciated the respondent bitter act against the appellant. In the year 2018, relationship between the appellant and respondent become so bitter that they not even to talk with each other and it has become respondent's usual day routine to quarrel with filthy language with the appellant which also disturbed the environment of house and the mother of the respondent always done job of pouring oil in the flame. The respondent usually after taking alcohol used to curse her about the two girl child and he was supported by his mother and due to behaviour and temperament of the respondent the appellant made herself separated under the same roof and the conjugal life of both the parties came to an end on 23rd June, 2018. Further this witness explained that on 13.6.2019 the respondent after consuming liquor beaten her without any reason, however she tried to make him understand but it was worthless and on 14.7.2019 she came to her father's house after leaving the house of the respondent and started to reside here along with her children and since then there is no connectivity in between her and her husband.
30. During cross-examination she explained that at present she has been residing at her parents house and has been in job for last three years and now she does not want to reside with her husband (respondent). Further she explained that she is capable to maintain her two children and has not filed any 12 2026:JHHC:8776-DB case of maintenance and in future will not file case for maintenance for her two daughters who are with her. She also explained that regarding assault by the husband (respondent) she has not filed any case in any police station or Court, but it is not correct that out of anger she (appellant) left her matrimonial house on 13.9.2021 because the respondent could not give Rs.20,000/- to her mother and it is also not correct that she wants to remarry after taking divorce.
31. PW-2, Radha Devi is the mother of appellant. She reiterated the facts as mentioned by the appellant in her deposition. Regarding the incident of 13.6.2019 she explained that the respondent was beating her daughter after consuming liquor. She along with other family members reached there after getting information from the appellant and tried to convince the respondent but he was not ready to understand and after being tortured by the respondent the appellant has come on 14.7.2019 to the house of this witness and the respondent never tried to establish conjugal relationship.
32. During cross-examination she explained that her daughter did marriage as per her own will and it was without dowry. She also explained that her daughter does not want to go to her matrimonial house and it is not correct that her daughter is employed, hence, she does not want to go to her matrimonial house.
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33. PW- 3, Birendra Kumar explained in his evidence on oath that he is friend of appellant's father. He corroborated the fact of marriage, date of marriage, birth of the children from the wedlock of the appellant and respondent He also reiterated the facts as stated by the mother of the appellant. During cross-examination he explained that he is the friend of appellant father and he was present in the marriage of the appellant as well as has not seen any incident of assault happened in between the appellant and the respondent and he never took attempt to reconcile the dispute.
34. P.W. 4 Mukesh Ram is the brother of the appellant and in his deposition on affidavit he reiterated the statements of witness no. 2.
35. During cross-examination this witness explained that it was a love marriage and after 6 to 7 months of marriage she came at her parents house and at that time she did not complaint against her husband. He also explained that the appellant was in job prior to her marriage and still she is in job and regarding the torturous act no complaint was filed at any place and it is not correct that since Rs.20,000/- was not given by the respondent to the appellant's mother on 13.9.2021 so her mother abused the respondent and return back with the appellant.
36. On the basis of the pleading of the parties, the learned Principal Family Judge had framed issues for proper 14 2026:JHHC:8776-DB determination of the lis and after due appreciation of the ocular as well as documentary evidence, the suit filed by the appellant-appellant [wife] for dissolution of marriage by decree of divorce u/s 13(1)(i-b) of Hindu Marriage Act, 1955 against respondent/husband, has been dismissed, against which the present appeal has been preferred.
37. It requires to refer herein that since appellate jurisdiction has been invoked herein, therefore, before entering into merit of the case, at this juncture it would be purposeful to discuss the appellate jurisdiction of the High Court.
38. It needs to refer herein that under section 7 of the Family Courts Act, the Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any Sub- ordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature which are described in the explanation to section 7(1).
39. Sub-section (1) to section 19 of the Family Courts Act provides that an appeal shall lie from every judgment or order not being an interlocutory order of a Family Court to the High Court "both on facts and on law". Therefore, section 19 of the Family Courts Act is parallel to section 96 of the Code of Civil Procedure, the scope of which has been dealt with by the Hon'ble Apex Court in series of judgments.
40. The law is well settled that the High Court in a First Appeal can examine every question of law and fact which arises in 15 2026:JHHC:8776-DB the facts of the case and has powers to affirm, reverse or modify the judgment under question. In "Jagdish Singh v. Madhuri Devi" (2008) 10 SCC 497 the Hon'ble Supreme Court observed that it is lawful for the High Court acting as the First Appellate Court to enter into not only questions of law but questions of fact as well and the appellate Court therefore can reappraise, reappreciate and review the entire evidence and can come to its own conclusion. For ready reference the relevant paragraph of the said judgment is being quoted as under:
"It is no doubt true that the High Court was exercising power as the first appellate court and hence it was open to the Court to enter into not only questions of law but questions of fact as well. It is settled law that an appeal is a continuation of suit. An appeal thus is a rehearing of the main matter and the appellate court can reappraise, reappreciate and review the entire evidence--oral as well as documentary--and can come to its own conclusion."
41. Herein, the learned counsel for the appellant has argued that the evidence of cruelty has not properly been considered and as such, the judgment suffers from perversity, hence, not sustainable in the eyes of law.
42. From the pleadings available on record and the arguments advanced by the learned counsel, the issue which requires consideration is as to:
"Whether the judgment and decree passed by the learned family court denying the decree of divorce on 16 2026:JHHC:8776-DB the ground of cruelty under Section 13(1)(i-b) of the Hindu Marriage Act requires interference?"
43. This Court, while appreciating the argument advanced on behalf of learned counsel on the issue of perversity, needs to refer herein the interpretation of the word "perverse" as has been interpreted by the Hon'ble Apex Court which means that there is no evidence or erroneous consideration of the evidence. The Hon'ble Apex Court in Arulvelu and Anr. vs. State [Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206 while elaborately discussing the word perverse has held that it is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27 of the said judgment reads as under:
"24. The expression "perverse" has been dealt with in a number of cases. In Gaya Din v. Hanuman Prasad [(2001) 1 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] 17 2026:JHHC:8776-DB the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.
26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the Court observed that any order made in conscious violation of pleading and law is a perverse order.
In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed that a "perverse verdict" may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey [106 NW 814] the Court defined "perverse" as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc.
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English, 6th Edn.
"Perverse.--Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable."
2. Longman Dictionary of Contemporary English, International Edn.
Perverse.--Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English, 1998 Edn. Perverse.--Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. The New Lexicon Webster's Dictionary of the English Language (Deluxe EncyclopedicEdn.) 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."
44. Herein, submission has been made on behalf of the appellant that all the witnesses supported the appellant‟s 18 2026:JHHC:8776-DB case and it is well established that due to cruel act of the respondent the appellant had to leave her matrimonial house and now she is residing at her parents house with her two daughters. There is no evidence that the respondent took any effort to settle the matter. Hence, the appellant is entitled to get decree of divorce u/s 13 (1) (ib) of Hindu Marriage Act
45. While on the other hand, the case of the respondent as made out before the learned family court is that from the evidence of the appellant and her mother, it is evident that the appellant at her own will left her matrimonial house without any cause and still the respondent (husband) is willing to maintain relationship and wants his wife and daughters to live with him as well as there is no evidence of any cruel act allegedly committed by him towards the appellant and that's why she did not file case u/s 13(1)(i-a) of Hindu Marriage Act or any petition in Court or police station. Lastly it is submitted that the appellant is in job and wants to live alone without her husband and does not what to fulfil the responsibilities towards her matrimonial house.
46. Herein, since the appellant has sought for a relief of dissolution of her marriage on the ground of desertion. Therefore, this Court before proceeding further needs to go the term desertion.
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47. The term desertion is not defined in the Act and it will depend upon the facts and circumstances of each case as to whether actually the desertion has been committed or not?
48. Now coming to the issue of desertion, which is also taken as a ground for decree of divorce.
49. 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 wilfull neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.
50. 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.
51. 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 20 2026:JHHC:8776-DB 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."
52. 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.
53. 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.
54. 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.
55. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding 21 2026:JHHC:8776-DB the cause of action of desertion is not complete, but is inchoate, until the suit is constituted, desertion is a continuing offence.
56. 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.
57. 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 from the necessary intention aforesaid.
58. 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.
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59. The law consistently has been laid down 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.
60. This Court, based upon the aforesaid discussions on the issue of desertion, and from the deposition of the appellant has found that the marriage of the parties is alleged to be love-cum-arrange marriage solemnized on 14.8.2014. On 2nd June, 2015 and further on 5th July, 2017 they have blessed with two baby girl, respectively. After birth of second child to be girl child the behaviour of the respondent-husband changed towards the appellant and children. The relationship between the parties became strained to the extent that the appellant and respondent become not even used to talk with each other in one roof. Further, it has become respondent's usual day routine to quarrel with filthy language with the appellant which also disturbed the 23 2026:JHHC:8776-DB environment of house. The respondent usually after taking alcohol used to curse her about the two-girl child and he was supported by his mother and due to behaviour and temperament of the respondent the appellant made herself separated under the same roof. Further, on 13.6.2019 the respondent beaten the appellant without any reason and therefore, on 14.7.2019 she came to her father's house after leaving the house of the respondent and started to reside with her parents along with her children and since then there is no connectivity in between her and her husband. The version of the appellant has been supported by other witnesses produced on her behalf.
61. From the testimonies of the appellant-wife, it is evident that due to the fact that appellant born two daughters she was subjected to cruelty by her husband which was support by her mother-in-law and the cruelty meted out the appellant was to the extent that it was almost unbearable for the appellant to reside with her husband.
62. Further, before this Court, in spite of valid service of notice, the respondent-husband choose not to appear. Furthermore, it appears that he did not make any fruitful effort to save the marriage and only appeared before the learned family court to defend himself .
63. On the basis of the aforesaid settled position of law, it is considered view of this Court that in the case at hand, it is 24 2026:JHHC:8776-DB behavior of the respondent-husband and mother-in-law of the appellant, it was next to impossible to live together with respondent/ husband.
64. On the basis of the discussion made hereinabove, this Court is of the considered view that the conduct of the respondent- husband has showed that it is the humiliation caused by him and his family members that has forced appellant-wife to leave her matrimonial house as it was almost impossible for the appellant-wife to live with the respondent-husband where the thread of trust has already been broken. Relationship of wife and husband is based on the trust and respect to have upon each other and if it is broken it is non- repairable as the trust is the foundation of marriage. Marriage is a relationship built on mutual trust, companionship and shared experiences.
65. This Court, after discussing the aforesaid factual aspect along with the settled legal position as discussed and referred hereinabove in the preceding paragraphs and adverting to the consideration made by the learned Family Judge in the impugned judgment has found therefrom that the issue of element of desertion by the appellant-wife has not been properly considered by the learned Family Judge.
66. Accordingly, issue as framed by this Court is decided in favour of the appellant-wife.
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67. This Court, on consideration of the aforesaid discussion, is of the view that the impugned judgment and decree passed by the learned Family Judge is coming under the fold of perversity, since, the conscious consideration has not been made to the evidences available on record, as would be evident from the impugned judgment.
68. Consequent to the aforesaid, the judgment dated 1st August, 2024 and decree dated 9th August, 2024 passed by the learned Principal Judge, Family Court, Jamshedpur in Original Suit No. 620 of 2021, is hereby quashed and set aside.
69. Accordingly, the instant appeal stands allowed.
70. Office to proceed accordingly.
71. Pending interlocutory application(s), if any, also stands disposed of.
I Agree (Sujit Narayan Prasad, J.)
(Sanjay Prasad, J.) (Sanjay Prasad, J.)
26th March, 2026
A.F.R
Alankar/-
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