Jharkhand High Court
Smt. Rima Das vs Pradeep Kumar Das on 24 June, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:16813-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 76 of 2020
1. Smt. Rima Das, aged about 52 years, wife of Pradeep Kumar Das,
D/o B.C. Mahapatra, resident of C/o B.C. Mahapatra at Nonibala,
Girls School, Jhargram, P.O. & P.S. - Jhargram, District Medinipur,
West Bengal, at present resident of H. No. 184, Zone No. 4,
Birsanagar, P.O. & P.S. - Birsanagar, Jamshedpur, District - East
Singhbhum. (Jharkhand)
... ... Appellant/Defendant
Versus
Pradeep Kumar Das, son of H.N. Das, resident of H. No. 184, Zone
No. 4, Birsanagar, P.O. & P.S. - Birsanagar, Jamshedpur, District -
East Singhbhum. (Jharkhand)
... ... Respondent/Plaintiff
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Anurag Kashyap, Advocate
For the Respondent : Mr. Mukesh Kumar Dubey, Advocate
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Order No. 19
CAV on 16th June, 2025 Pronounced on 24th June, 2025
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 06.07.2020 and Decree dated 15.07.2020 passed by the learned Additional Principal Judge, Family Court, Jamshedpur in Original Suit No. 344 of 2017, whereby and whereunder, the petition filed under Section 10(ix)(x) of the Divorce Act, 1869 by the appellant/ defendant seeking a decree of divorce against his wife, has been allowed.
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2. The brief facts of the case leading to filing of the divorce petition by the respondent/ plaintiff needs to be referred herein as under:
The marriage between the appellant/defendant and respondent/plaintiff was solemnized on 27.12.1996 according to Christian rites and customs. Thereafter, the appellant/defendant came to the house of respondent/plaintiff and started residing with him, their marriage was consummated and out of the said wedlock, they are blessed with two sons namely Obed Kumar Das and John Paul on 23.10.1999 and 27.05.2007 respectively. The further case of respondent/plaintiff that after few months of marriage, the behavior of appellant/defendant abruptly changed and she started behaving differently, losing her interest in the respondent/plaintiff and stopped taking interest in kitchen and other necessities of her husband. The further case of respondent/plaintiff is that appellant/defendant used to go out from the house without giving any knowledge and information of her whereabouts and she used to remain out for 2-3 days.
On asked by the respondent/plaintiff for her unwarranted and unnecessary movements, she used to retort very rudely and bluntly and arrogantly said the respondent/plaintiff not to interfere in her private life. The further case of respondent/plaintiff is that mother of appellant/defendant had written a letter to the appellant/defendant in Bengali, in which, she had instructed the appellant/defendant to 2 F.A. No. 76 of 2020 2025:JHHC:16813-DB keep the respondent/plaintiff under her control, so that, he would always act and move as per her wishes. Appellant/defendant followed the instruction of her mother and always wanted to dominate over the respondent/plaintiff and she tortured the respondent/plaintiff both mentally and physically and she did not cooperate in his bed, due to which, respondent/plaintiff became mentally sick and physically shattered and he became a patient of diabetes and blood pressure.
The further case of respondent/plaintiff is that he came to know from his younger son John Paul Das that appellant/defendant was knowingly and intentionally mixing some harmful medicine in his food to cause him physical harm, so that he may die before time.
Being disgusted and frustrated by the misbehaviour and misconduct of appellant/defendant, the respondent/plaintiff had given an application to Lok Adalat, Kharangajhar informing them about the inhumane cruel and rude behaviour of the appellant/defendant, upon which, a notice was sent to her by them, but it did not fetch any fruitful result. The respondent/plaintiff tried his best to adjust and accommodate with the appellant/defendant, but appellant/defendant did not respond it.
The respondent/plaintiff was the Secretary of Beldih Church School, Jamshedpur and to establish good and harmonious relation with appellant/defendant, the respondent/plaintiff got her appointed as a Teacher in Beldih Church School, in spite of that, she did not reciprocate and improve her conjugal relation with 3 F.A. No. 76 of 2020 2025:JHHC:16813-DB respondent/plaintiff rather she behaved with the respondent/plaintiff more arrogantly and with cruelty and cut off all relation with the respondent/plaintiff and badly influenced his elder son Obed Kumar Das and poisoned his ear against him and started residing separately in other part of the residence of respondent/plaintiff under the same roof, since October, 2014 by deserting the plaintiff and even she did not allow the respondent/plaintiff to have sexual relation as a husband. The appellant/defendant wants to grab the properties of respondent/plaintiff, so, she wants him to die early. She used to give all sorts of maltreatment and mental and physical torture upon him and she also lodged a false complaint against him at Mahila Police Station and he was called at the police station and the police after being satisfied with the respondent/plaintiff, subsided the matter. Appellant/defendant also threatened the respondent/plaintiff to send him to jail by lodging a false case against him, due to which life of the respondent/plaintiff has become miserable like hell and he was deserted by appellant/defendant for more than two years as she has deprived the respondent/plaintiff from all conjugal happiness including sexual relation.
Thereafter being aggrieved with the conduct of appellant the respondent husband had preferred a suit being Original Suit No. 344 of 2017 under Section 10(IX)(X) of the Divorce Act 1869. In the divorce suit, the appellant-wife has appeared and filed her written 4 F.A. No. 76 of 2020 2025:JHHC:16813-DB statement denying all the allegations levelled against her by her husband.
The learned Family Court after taking into consideration the pleading had allowed the prayer for dissolution of marriage as prayed by the respondent/plaintiff. Against the aforesaid order, the instant appeal has been preferred.
3. It is evident from the factual aspect that the appellant/petitioner had a motion by filing a petition under Section 10(ix), (x) of the Divorce Act, 1869 for decree of divorce on the ground of desertion and cruelty respectively.
4. The learned Family Judge has called upon the respondent-wife. The wife has filed written statement and altogether six issues have been framed which are as follows:
(i) Is this suit maintainable in its present form?
(ii) Whether the plaintiff has got valid cause of action for the suit?
(iii) Whether the defendant has deserted the plaintiff prior to two years from the date of filing of this suit?
(iv) Whether the plaintiff has suffered cruelty from the hand of the defendant?
(v) Whether the plaintiff is entitled for decree of divorce on the ground of cruelty and desertion?
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(vi) Whether the plaintiff is entitled for any other relief or reliefs claimed in the suit?
5. The issue of cruelty has been answered in favour of the respondent-
husband and accordingly, the judgment of dissolution of marriage has been passed and decree for the same has been prepared in favour of the respondent-husband which is the subject matter of the present appeal.
Submissions advanced by the learned counsel appearing for the appellant/defendant:
6. It has been contended on behalf of the appellant/defendant that the factual aspect which was available before the learned Single Judge supported by the evidences adduced on behalf of the appellant/defendant has not properly been considered and as such, the judgment impugned is perverse, hence, not sustainable in the eyes of law.
7. The suit although has been filed on the ground of cruelty but no substantive evidence has come rather the material has come to make out the ground for cruelty and in absence thereof the ground of cruelty which has been taken as a ground for dissolution of marriage has been accepted and based upon that, judgment for dissolution of marriage of the parties has been passed.
8. The cruelty is to be established by the party by taking the ground of cruelty for the purpose of dissolution of marriage by making specific 6 F.A. No. 76 of 2020 2025:JHHC:16813-DB pleadings in the plaint, but in the instant case if the pleadings of the husband will be taken into consideration which is available on record that it would be evident that the ground has been taken of creating disturbances in the life of the plaintiff, which has been taken as a ground of cruelty.
9. It is submitted that the appellant has never ever given any harmful medicine in his food to the respondent/husband to cause him physical harm, rather the same has been alleged without any basis only because the Respondent/Husband wants divorce from the appellant/wife.
10. Further it is submitted that the appellant had good relationship with her husband and both were living happily but she came to know that the Respondent/Husband is having illicit relationship with one lady namely Shruti Chawla, who is a teacher in Beldih Church School and always interfered in the family matter. The said Shruti Chawla has started exploiting and blackmailing the respondent/ husband on the basis of some photographs. This fact was informed to her by her husband, thereafter she has reported the matter to Mahila Thana, Sakchi, Jamshedpur where Shruti Chawla was noticed to appear and Shruti Chawla has given an undertaking before police not to create trouble to the respondent. The learned Family Court has not considered that the appellant/wife has filed 17 photographs which have been marked as 'X' and 'Y' Series to show that she had very good relation with the Respondent/Husband and Shruti Chawla was also present in the said photographs. One of the photographs on which the 7 F.A. No. 76 of 2020 2025:JHHC:16813-DB appellant put reliance was Y/6' in which the Respondent/Husband and Shruti Chawla were standing having garland in their neck. The Appellant/wife submits that only because of interference of Shruti Chawla there was discord in the married life.
11. It has further been submitted that the Appellant after so much of tortures made by the Respondent/ Husband, she is still ready to live with the Respondent/Husband and has intention to restore marital relationship but the same has not at all considered by the learned Family Court and the learned Family Court has granted divorce to the Respondent/Husband on the ground of cruelty, which has been alleged by the respondent/husband without any basis.
12. Learned counsel for the appellant/defendant, based upon the aforesaid ground, has submitted that the judgment impugned suffers from perversity, as such, not sustainable in the eyes of law. Submissions advanced by the learned counsel appearing for the respondent/plaintiff:
13. Per contra, Mr. Mukesh Kumar Dubey, learned counsel for the respondent-husband, while defending the impugned judgment, has submitted that there is no error in the impugned judgment. The learned Family Judge has considered the issue of cruelty and having come to the conclusion that evidence has been adduced to establish cruelty has allowed the petition.
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14. It has been submitted that there is no error in the impugned judgment, since, the learned Family Judge by taking into consideration the fact about the behaviour of the appellant- wife who had administered harmful thing in the food of the respondent/husband amounts to cruelty and the same has been taken as a ground for dissolution of marriage of the parties, hence, the judgment impugned cannot be said to suffer from an error.
15. Learned counsel, based upon the aforesaid grounds, has submitted that if on that pretext, the factum of cruelty and desertion has been found to be established, based upon which the decree of divorce has been allowed to be granted, the impugned judgment cannot be said to suffer from an error.
Analysis:
16. We have heard the learned counsels appearing for the parties, gone through the Trial Court Records, as also the impugned judgment, the testimonies of the witnesses and the documents exhibited therein.
17. This Court before considering the legality and propriety in the impugned judgment needs to refer herein that the issues have been formulated by the learned family Court as to whether the factum of cruelty is available on the basis of the pleadings made or not can be said to be the proper consideration based upon the testimony available before the learned Family Judge, but before consideration of the aforesaid fact it needs to refer herein the admitted fact related to the pleadings.
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18. The admitted fact herein is that the suit for divorce has been filed on the ground of cruelty and desertion, i.e., by filing an application under Section 10(ix) (x) of the Divorce Act, 1869 and accordingly, issues have been framed wherein primarily issue pertains to cruelty and desertion.
19. The evidence has been led on behalf of both the parties. For ready reference, the evidences led on behalf of the parties are being referred as under:
(i) PW-1 Pradip Kumar Das is the plaintiff (respondent herein) himself. He has repeated the facts stated in his plaint. It was his testimony during his cross-examination that he lives in Birsanagar and the house was constructed by him, but land belongs to his mother. After marriage, he is living with his family in that house at Birsanagar and at present his wife and elder son lives together separately from him. His elder brother lives in quarter allotted by the Tisco with his father. His father has no good relation with his younger son and his elder son lives with his mother separately from him and they had good relation with his father. He has no good relation with his brother, sister and bhabhis. He lives with his younger son. His sasural people are Bengali and he went in his sasural in the year 2012 for the last time and at that time he had good relation with them. He worked as Secretary in Beldih Church and Beldih Church School. His wife is a teacher in Beldih School since 2012 10 F.A. No. 76 of 2020 2025:JHHC:16813-DB and at that time, he was Secretary of Beldih Church and at his recommendation, his wife was appointed as a teacher. His wife has not filed any case against him and his other family members do not visit him since 2014. In the year 2002, he has dispute with regard to his wife and he denied that he had filed application in his society as well as in police station. Though, he admitted that he made an application in Lok Adalat Kharangajhar, Jamshedpur, but he never filed any written application. He has admitted that he knew Shruti Chawla, a teacher of Beldih Church School. His wife had filed case in Mahila Police Station, where, Shruti Chawla was also summoned and in Mahila Police Station, there was settlement, thereafter, case did not proceed and both parties lived together at Birsanagar. His younger son informed him that defendant had mixed poison in his food, but he neitjer filed any written complaint anywhere nor he got the food tested anywhere.
There were three rooms in his house, out of which, his wife and elder son are living in one room and since 2017 his wife is living separately. He is not paying any expense towards his wife and elder son. His elder son used to study in Chinmaya Vidya Bharti School and could not complete Class XI. He has also admitted that his wife is an old lady, who is not able to perform the marital life, therefore, he had filed the present suit for divorce. He has denied the suggestion that due to interference of Shruti Chawla, he had filed the present suit for dissolution of marriage 11 F.A. No. 76 of 2020 2025:JHHC:16813-DB and in order to disturb his wife and son, he uses to keep animal feed shattered in the house.
(ii) PW-2 Arvind Singh is closely associated with plaintiff and defendant and he has come to prove the fact that behaviour of defendant has changed completely and she used to behave in a very blunt and arrogant manner with plaintiff and she did not take any interest in kitchen and house-hold works and she was guided by her mother. She also used to abuse the plaintiff and assaulted him, due to which, plaintiff was under mental depression and he became patient of diabetes and blood pressure. He has also stated that he came to know from plaintiff that defendant had mixed some harmful medicine in his food and defendant was not giving any conjugal happiness and she also poisoned her eldest son towards the plaintiff and she also threatened the plaintiff for false implication in criminal case. It was his testimony during cross-examination that he used to go to the house of plaintiff, but he did not know the boundary of house of the plaintiff and he also did not know Shruti Chawla. He has never talked with defendant or children of plaintiff, even, he did not know whether father of plaintiff had filed a criminal case against him or not. This witness is completely hear-say witness.
(iii) P.W. 3 John Paul Das is son of plaintiff, who has deposed that he was living with his mother, father and his elder brother Obed 12 F.A. No. 76 of 2020 2025:JHHC:16813-DB Kumar Das, but his mother always ill-treated his father and quarreled with him. His mother regularly visited outside the house. He also saw his mother was mixing something in the food of his father and when he enquired, his mother became furious, thereafter, he informed the matter to his father and his mother and elder brother started living separately from them from the date of incident, in the same house. After this incident, his mother did not provide food to them and tortured his father. His mother is trying to grab the entire property of his father. It was his testimony during his cross-examination that two tenants are residing in their house and his father had kept four cows and three goats. He does not talk with his mother and elder brother in absence of his father. His grand-father and grand-mother are living with elder brother of his father (bade pitaji) in Bistupur and he did not know Shruti Chawla. He saw his mother mixing something in the food of his father in the year 2013. He visits on all dates in the court with his father and his father has sold some land to one aunt, but he did not know the name of aunt. He has also admitted that he could not file the treatment paper of his father in court.
(iv) P.W. 4 Anil Kumar is an Electrician, who has come to prove the fact that whenever he visited the house of plaintiff, he saw the defendant treating the plaintiff with cruelty and she taunted 13 F.A. No. 76 of 2020 2025:JHHC:16813-DB him as Kamchor, Nikamma. She also commented that his both brothers are working, but he does nothing.
It was his testimony during his cross-examination that there were three rooms in the house of plaintiff and he did not know about the family members of plaintiff. Plaintiff has a poultry farm in his house, who has not kept cow, buffalo and he did not know the contents of his affidavit. He has never talked with defendant and he even did not know about the school of children of plaintiff. He has completely denied that any incident about the passing of comment by the defendant to plaintiff took place in his presence rather these facts were incorporated in his affidavit at the instance of plaintiff. In this way, this witness did not succeed to prove that he knew anything about the marital affair of plaintiff and defendant.
20. The appellant-wife has also been examined as D.W.-1. For ready reference, her evidence is being referred as under:
(i) D.W. 1 Rima Das is defendant herself and she has reiterated the facts she stated in her written statement. Apart from this, she has deposed that on 17.05.2019, she has recorded a video and she has filed recording in her pen-drive. Her husband has opened a poultry farm in his house and she has filed photographs to prove the same. She has also stated that the house is constructed in the name of her mother-in-law Pankajini and she had filed photographs to fortify it. According to her, 14 F.A. No. 76 of 2020 2025:JHHC:16813-DB after birth of both sons, she had a very good relation with her husband and sons till 10.04.2017 and still she had happy conjugal life, but Shruti Chawla, a lady, who belongs to political party and connected with Beldih Church School, started exploiting and blackmailing her husband from the month of April, 2017 on the basis of some photographs and Adhar Card.
At last, her husband informed all these matters to her, so, she informed these matters to Mahila Thana, Sakchi, Jamshedpur, where, Shruti Chawla came and gave an undertaking not to create trouble to the plaintiff and she has filed photographs, which were marked as Ext. Y/3 to Y/6. Her husband loved her very much and he was Secretary of Beldih Church School, therefore, she was appointed as a teacher in the school on 19.07.2012, but due to exploitation of Shruti Chawla, her husband started torturing her physically and mentally. He also started creating pressure for divorce. She still lives in the house of her husband and at present her husband is aged about 55 years and she is aged about 47 years and still they are leading a happy conjugal life. Her father-in- law is annoyed with her husband and filed maintenance case No. 155 of 2018. Her husband does not pay any amount for maintenance and education of elder son Obed Kumar Das and same is being borne by her. She has very good relation with her father-in-law. She has filed the Voter Identity Card of Shruti Chawla, in which, she has mentioned herself as wife of plaintiff and she has not 15 F.A. No. 76 of 2020 2025:JHHC:16813-DB deserted her husband rather the relation of her husband with Shruti Chawla has created hindrance in their marital life and her husband has filed the present suit for divorce, which will adversely affect her marital life and life of her sons.
(ii) D.W. 2 Hridyanand Das is father of plaintiff and father-in-law of the appellant/wife. He has deposed that his son has filed the present suit for dissolution of marriage on the basis of false facts and his son has prepared some forged documents in favour of Shruti Chawla out of fear of Shruti Chawla because the land does not belong to his son rather the land was purchased by him in the name of his wife Pankajini Das, over which, his daughter-in-law Rima Das is living with her family. Defendant is taking care of her both sons and she is dedicated to her sasural and all of his family members are unhappy due to this litigation. He along with his Samdhi have contributed in construction of residential house of plaintiff and plaintiff wants to grab the land. His daughter-in-law performed the duty of teacher in Beldíh Church School with the consent of plaintiff and his son has illicit relation with Shruti Chawla and under pressure of Shruti Chawla, his son also started treating the defendant with cruelty at the instigation of Shruti Chawla. His son also poisoned the mind of younger son John Paul against defendant and after the evidence of defendant, plaintiff has given room of his house to some other person and same has created nuisance in the family. The mother of defendant never wrote any letter to defendant to 16 F.A. No. 76 of 2020 2025:JHHC:16813-DB cause disturbance in their marital life and plaintiff is trying to destroy his marital life and future of children. This all caused annoyance to him, so, he has filed Misc. Case No. 155 of 2018 for maintenance of defendant. His son has grabbed all his retiral benefit and his daughter-in-law has neither committed cruelty nor deserted him, so, his son is not entitled for any relief. It was his testimony during his cross-examination that he retired from Tata Steel on 29.09.1994, whereafter, he is living with his eldest son Ravindra Das at Sonari and he was brought to depose in the present suit by his eldest son Ravindra Das and eldest grand-son Obed Kumar Das. He last visited Birsanagar in the year 2015, he gave his service in Tata Steel to his eldest son and he gave share in the land of Birsanagar to the plaintiff and an Ekrarnama was prepared on 25.11.1994. He identified the signature on the photocopy of Ekrarnama, which is marked as Ext. X. He admitted that dispute started between the plaintiff and defendant in the year 2014 and his elder grand-son Obed Kumar Das is living with his mother Rima Das and the younger grand-son John Paul Das is living with his father Pradip Kumar Das. He has good relation with defendant and family members and he is not ready to live with plaintiff. He has tried for good relation between the plaintiff and defendant since 2015 and plaintiff and defendant had always quarrelled during the period of 2010-2013, regarding which, a panchayti was also convened in 2014 in Church.
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(iii) D.W. 3 Obed Kumar Das is son of the parties. He has reiterated the facts stated by his mother, in his examination-in-chief. It was his testimony during his cross-examination that his date of birth is 23.10.2001 and presently he is studying in Arka Jain University. He has deposed that his father has made allegation that his younger brother had seen his mother mixing something in the food of his father and since 2014, his father has no relation with his mother. According to him, he visits regularly with his mother and his younger brother has deposed in favour of his father. At present all the house-hold articles are purchased by his mother and father together. His mother had filed an application before the D.L.S.A. Jamshedpur; accordingly, police had visited their house three months ago. Police have submitted report, but he has not seen the report nor he was knowing the fact that police had reported that plaintiff and defendant are living separately. His father has poultry farm and dairy business and his father has one cow and a calf. He has also admitted that his father was posted as Secretary of Beldih Church School and he got his mother appointed as a teacher in that school. His mother was earning Rs. 19,000/- per month. His mother has very good relation with his grand-father and both uncles. His grand-father has filed a maintenance case against his father, in which, his mother and other relatives have deposed in favour of his mother. Up to June, 2019, his father was spending money towards his expenses and house expenses, but after 18 F.A. No. 76 of 2020 2025:JHHC:16813-DB evidence of his mother, his father stopped all those expenses. The house situated at Birsanagar belongs to his grand-father and his grand-father has said to his mother that he would give his share to his mother. He has denied the suggestion that land of Birsanagar belongs to his grand-mother and there was an agreement in 1994, signed by his both uncles, on the basis of which, his father got the land. Land of Shruti Chawala is situated besides their house. There are six rooms in the house, out of which, his father lives in two rooms, they live in one room and one room was tenanted. He has further deposed that Shruti Chawla is also a teacher in Beldih School and the land of Birsanager is recorded in the name of his grand-mother Pankajnini in the record of right. He has denied that he did not know anything about the relation of his father and mother and tjat he was deposing falsely.
(iv) D.W. 4 Ashita Joyce Machaih is a teacher in Beldih Church School and she has come to prove that in the month of June, 2019, she visited the house of parties and she found that both were residing together with their two sons. She had also visited in the month of June, 2019, when defendant was ill and she found that plaintiff and defendant were residing at that time also having cordial relation.
It was her testimony during her cross-examination that she was appointed in Beldih Church School in the month of July, 2017 and since then she was knowing defendant. She has given 19 F.A. No. 76 of 2020 2025:JHHC:16813-DB the description of the house of Birsanagar, according to which, after entering from main gate, there was a poultry farm in the left side and there was a pucca constructed house in the right side and a cow shed was situated on the right side of the house. There was tenant in the back portion of the house. She was not knowing about the number of tenants. According to her, still plaintiff and defendant had good relation. She has denied that she was knowing nothing about the relation of plaintiff and defendant.
(v) D.W. 5 Salina Das is Bhabhi of plaintiff. She has reiterated the facts stated by the defendant and she has further stated that plaintiff is trying to oust Rima Das from his house since 2019 under the fear of Shruti Chawla. It was her testimony during her cross-examination that she has not gone through her written affidavit nor she has gone through the plaint and written statement filed in this case. On the date of deposing in Court, her husband, Ravindra Kumar Das, her Nanad Subhasini Khalkho, Nandoi Ajar Khalkho were present in the court, wjp she identified and she also stated that her Sasur had filed a case of maintenance against plaintiff, in which, she was also a witness. She has further testified that she was married in the year 1991 and after marriage, she lived in Burmamines, thereafter, she shifted to Bistupur and at present she is residing in Sonari. Her father-in-law has been living with them. Plaintiff and defendant live in Birsanagar and her husband, his brothers 20 F.A. No. 76 of 2020 2025:JHHC:16813-DB and sisters have got share in that property. The cause of entire dispute, according to her, is not dispute of ancestral property rather Shruti Chawla, a teacher in Beldih School, who wants to grab the property situated at Birsanagar. The son Obed Kumar Das of plaintiff has deposed in support of defendant. She has no documentary evidence to prove that father of defendant had contributed money to the plaintiff for construction of house and purchase of a vehicle and plaintiff has borne the expenses of entire family till June, 2019 and she last visited in their house on 29.01.2020.
(vi) D.W. 6 Suhasini Khalkho is elder sister of plaintiff and she has repeated the facts stated by the defendant in her examination- in-chief. It was her testimony during her cross-examination that she always talked with plaintiff on phone and she last visited the house of plaintiff in the month of February, 2020. She came to depose in this case with elder brother Ravindra Kumar Das, Bhabhi Salina Das, Rima Das, husband Ajar Khalkho and Obed Kumar Das and there was no dispute between Pradip Kumar Das and Rima Das and after evidence of Rima Das, the dispute between the parties started and his brother started creating problem for the defendant. The father of Rima Das had given money to Pradip Kumar Das for construction of a house and purchase of a vehicle, but no transaction took place in her presence and she came to know this fact in the year 2010 by her father and Pradip. She and her four brothers have got share in 21 F.A. No. 76 of 2020 2025:JHHC:16813-DB the land situated at Birsanagr and she denied that her mother had given the land of Birsanagar to the plaintiff by a written instrument which was signed by her mother Pankajni Das, father Hridyanand Das, brother Ravindra Kumar Das and Prabhat Kumar Das. Her father is living with her elder brother Ravindra Kumar Das since 1996. Her mother died in the year 2000. She also admitted that she was deposing against her brother Pradip Kumar Das whereas other family members also deposing against Pradip Kumar Das. She has also admitted that they have got instituted a case of maintenance by her father against her brother Pradip Kumar Das. She did not know the fact that Pradip Kumar Das had sold the land in favour of Shruti Chawla and her bhabhi Rima Das had filed case against Shruti Chawla in Mahila Police Station in her presence and Shruti Chawla gave an undertaking in police station that she would not maintain any relation with her brother nor interfere in the marital life of her brother and this incident took place in the year 2017. She has denied that in order to grab the property, she was deposing falsely.
21. The learned Family Judge has gone into the interpretation of the word "cruelty" and "desertion" and assessing the same from the evidences led on behalf of the parties as also the submission made in the pleading, i.e., plaint and written statement, has found that the element of cruelty has been established.
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22. The learned counsel for the appellant/defendant has argued that the evidence of cruelty and desertion has not properly been considered and as such, the judgment suffers from perversity, hence, not sustainable in the eyes of law.
23. While on the other hand, argument has been advanced on behalf of the respondent-plaintiff has submitted that the judgment is well considered.
24. This Court while appreciating the argument advanced on behalf of the parties on the issue of perversity needs to refer herein the interpretation of the word "perverse" as has been interpreted by the Hon'ble Apex Court which means that there is no evidence or erroneous consideration of the evidence. The Hon'ble Apex Court in Arulvelu and Anr. vs. State [Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206 while elaborately discussing the word perverse has held that it is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as so 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 23 F.A. No. 76 of 2020 2025:JHHC:16813-DB against the law or suffer from the vice of procedural irregularity.
25. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [AIR 1966 Cal 31] the Court observed that "perverse finding" means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 :
AIR 1994 SC 1341] the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.
26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the Court observed that any order made in conscious violation of pleading and law is a perverse order.
In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed that a "perverse verdict" may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey [106 NW 814] the Court defined "perverse" as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc.
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English, 6th Edn.
"Perverse.--Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable."
2. Longman Dictionary of Contemporary English, International Edn.
Perverse.--Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English, 1998 Edn. 24 F.A. No. 76 of 2020
2025:JHHC:16813-DB Perverse.--Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. The New Lexicon Webster's Dictionary of the English Language (Deluxe Encyclopedic Edn.) Perverse.--Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, 4th Edn.
"Perverse.--A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.""
25. Further, the ground for divorce has been taken of cruelty and desertion.
26. The "cruelty" has been interpreted by the Hon'ble Apex Court in the case of Dr. N.G. Dastane vs. Mrs. S. Dastana, (1975) 2 SCC 326 wherein it has been laid down that the Court has to enquire, as to whether, the conduct charge as cruelty, is of such a character, as to cause in the mind of the petitioner, a reasonable apprehension that, it will be harmful or injurious for him to live with the respondent.
27. This Court deems it fit and proper to take into consideration the meaning of 'cruelty' as has been held by the Hon'ble Apex Court in Shobha Rani v. Madhukar Reddi, (1988)1 SCC 105 wherein the wife alleged that the husband and his parents demanded dowry. The Hon'ble Apex Court emphasized that "cruelty" can have no fixed definition.
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28. According to the Hon'ble Apex Court, "cruelty" is the "conduct in relation to or in respect of matrimonial conduct in respect of matrimonial obligations". It is the conduct which adversely affects the spouse. Such cruelty can be either "mental" or "physical", intentional or unintentional. For example, unintentionally waking your spouse up in the middle of the night may be mental cruelty; intention is not an essential element of cruelty but it may be present. Physical cruelty is less ambiguous and more "a question of fact and degree."
29. The Hon'ble Apex Court has further observed therein that while dealing with such complaints of cruelty it is important for the court to not search for a standard in life, since cruelty in one case may not be cruelty in another case. What must be considered include the kind of life the parties are used to, "their economic and social conditions", and the "culture and human values to which they attach importance."
30. 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.
31. 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 a cross-examination. The Hon'ble 26 F.A. No. 76 of 2020 2025:JHHC:16813-DB Apex Court held these allegations against the husband to constitute "cruelty".
32. In Vijaykumar Ramchandra Bhate v. Neela Vijay Kumar Bhate, (2003)6 SCC 334 the Hon‟ble Apex 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.
33. 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.
34. It is, thus, evident that the Hon'ble Apex Court in the recent judgment passed in Joydeep Majumdar v. Bharti Jaiswal Majumdar (supra) has been pleased to lay down that 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" 27 F.A. No. 76 of 2020
2025:JHHC:16813-DB and "weighty" and trivial irritations and normal wear and tear of marriage would not constitute mental cruelty as a ground for divorce.
35. Further in the case of Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288, the Hon'ble Apex Court has held as follows:--
22. The expression "cruelty" has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status.
25. After so stating, this Court observed in Shobha Rani case about the marked change in life in modern times and the sea change in matrimonial duties and responsibilities. It has been observed that : (SCC p. 108, para 5) "5. ... when a spouse makes a complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance."
26. Their Lordships in Shobha Rani case referred to the observations made in Sheldon v. Sheldon wherein Lord Denning stated, "the categories of cruelty are not closed".
Thereafter, the Bench proceeded to state thus: (Shobha Rani case, SCC p. 109, paras 5-6) "5. ... Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or 28 F.A. No. 76 of 2020 2025:JHHC:16813-DB incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.
6. These preliminary observations are intended to emphasise that the court in matrimonial cases is not concerned with ideals in family life. The court has only to understand the spouses concerned as nature made them, and consider their particular grievance. As Lord Reid observed in Gollins v. Gollins : (All ER p. 972 G-H) '... In matrimonial affairs we are not dealing with objective standards, it is not a matrimonial offence to fall below the standard of the reasonable man (or the reasonable woman). We are dealing with this man or this woman.'"
36. In the case of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 it has been held by the Hon'ble Apex Court as follows:--
99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.29 F.A. No. 76 of 2020
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37. Since the "desertion" as a ground has also been pleaded by the respondent husband before the learned family Judge, as such definition of "desertion" is required to be referred herein as defined under the explanation part of Section 13 which 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 willful neglect of the petitioner by the other party to the marriage.
38. Rayden on Divorce which is a standard work on the subject at p. 128 (6th Edn.) has summarised the case-law on the subject in these terms:
"Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party."
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.
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2025:JHHC:16813-DB Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.
39. The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least two years immediately preceding the presentation of the petition or, where the offence appears as a cross- charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of 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.
40. It is, thus, evident from the aforesaid reference of meaning of desertion that the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential 31 F.A. No. 76 of 2020 2025:JHHC:16813-DB conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end.
41. Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. In such a situation, the party who is filing for divorce will have the burden of proving those elements.
42. Recently also, the Hon'ble Apex Court in Debananda Tamuli vs. Kakumoni Kataky, (2022) 5 SCC 459 has considered the definition of 'desertion' on the basis of the judgment rendered by the Hon'ble Apex Court in Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40 which has been consistently followed in several decisions. The law consistently laid down by the Hon'ble Apex Court that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. The view taken by the Hon'ble Apex Court has been incorporated in the Explanation 32 F.A. No. 76 of 2020 2025:JHHC:16813-DB added to sub-section (1) of Section 13 by Act 68 of 1976. The said Explanation reads thus:
"13. Divorce.--(1) ...
Explanation.--In this sub-section, the expression "desertion"
means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly."
43. This Court, on the premise of the interpretation of the word "cruelty" and "desertion" has considered the evidences of the witnesses as has been incorporated by the learned Court in the impugned judgment.
44. Herein since appellate jurisdiction has been invoked therefore, before entering into merit of the case, at this juncture it would be purposeful to discuss the appellate jurisdiction of the High Court. 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).
45. 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 33 F.A. No. 76 of 2020 2025:JHHC:16813-DB 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.
46. The law is well settled that the High Court in a First Appeal can examine every question of law and fact which arises in 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:
27. 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.
47. Further, it requires to refer herein that under section 3 of the Indian Evidence Act a fact is said to be proved when the Court either believes it to exist or considers its existence so probable that a prudent man under the circumstances would proceed on the supposition that such fact really exists. Therefore, the normal rule of preponderance of probability is the rule which governs the civil proceedings like this. 34 F.A. No. 76 of 2020
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48. The expression "preponderance of probability" is not capable of exact definition nor can there be any strait-jacket formula or a weighing machine to find out which side the balance is tilted. The preponderance of probability would imply a positive element about possibility of existence of a fact. This means a higher degree of probability of happening of something and existence of a fact.
49. In "A. Jayachandra v. Aneel Kaur" (2005) 2 SCC 22 the Hon'ble Apex Court has observed that the concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, the Court has to see what are the probabilities in the case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse caused by the acts or omissions of the other.
50. Since this Court are exercising the power of appeal as referred hereinabove and as per the settled position of law which require the consideration of the appellate Court is that the order/judgment passed by the appropriate Forum, if suffers from perversity, the same is to be taken as a ground for its reversal.
51. This Court has considered the judgment passed by the learned Family Judge on the issue of perversity, since, perversity has been interpreted by the Hon'ble Apex Court as discussed in the preceding paragraph that if any material fact even though produced before the 35 F.A. No. 76 of 2020 2025:JHHC:16813-DB concerned adjudicator if not being considered or erroneously been considered then the same will come under the fold of perversity.
52. Herein, as per the pleading the ground of cruelty has been taken for dissolution of the marriage. The respondent plaintiff who had been examined as P.W.1 had stated that his younger son informed him that defendant had mixed poison in his food, but he neither filed any written complaint anywhere nor he got the food tested anywhere.
53. Thus, it is evident from the aforesaid statement of the respondent husband that no complaint was filed by him as such this allegation against appellant wife appears as bald allegation since in support of the aforesaid allegation plaintiff/husband has never filed or filed any cogent evidence rather it appears that the same has been alleged without any basis only because the Respondent/Husband wants divorce from the appellant/wife.
54. Further from impugned order it is evident that the learned Family Court has considered that the younger son of the parties namely John Paul Das has stated before the court that his mother used to mix sample medicine in food but the learned Family Court has not at all considered that their son John Paul Das was examined in the month of February 2019 and at that time his age was 12 years and the incident took place in the year 2013, which means that he was aged about 6 years at the time of alleged incident. He further deposed that his father became ill after taking food and was treated in hospital but no documentary evidence has been produced to substantiate the same 36 F.A. No. 76 of 2020 2025:JHHC:16813-DB and as such the pleadings and evidence are not in consonance with each other as because the Respondent/Husband has not deposed that after taking food he became ill. So, on this point alone it would be evident that the son John Paul Das is a tutored witness and he is highly influenced by the Respondent/Husband.
55. Further the independent witness P.W.4 the electrician had completely denied that any incident about the passing of comment by the defendant to plaintiff took place in his presence rather these facts were incorporated in his affidavit at the instance of plaintiff. In this way, this witness did not succeed to prove that he knew anything about the marital affair of plaintiff and defendant.
56. Now coming to the testimony of the appellant wife who had been examined as D.W.1 wherein she had deposed that even after birth of both sons, she had a very good relation with her husband and sons till 10.04.2017 and still she had happy conjugal life, but Shruti Chawla, a lady, who belongs to political party and connected with Beldih Church School, started exploiting and blackmailing her husband from the month of April, 2017 on the basis of some photographs and Adhar Card. At last, her husband informed all these matters to her, so, she informed these matters to Mahila Thana, Sakchi, Jamshedpur, where, Shruti Chawla came and gave an undertaking not to create trouble to the plaintiff. Her husband loved her very much and he was Secretary of Beldih Church School, therefore, she was appointed as a teacher in the school on 19.07.2012, but due to exploitation of Shruti Chawla, her husband started torturing her physically and mentally. She had 37 F.A. No. 76 of 2020 2025:JHHC:16813-DB further deposed that She still lives in the house of her husband but her husband does not pay any amount for maintenance and education of elder son Obed Kumar Das.
57. The aforesaid testimony of the appellant/wife has fully been substantiated by the D.W. 2 Hridyanand Das who is father of plaintiff/husband and father-in-law of the appellant/wife. He has deposed that his son has filed the present suit for dissolution of marriage on the basis of false facts and his son has prepared some forged documents in favour of Shruti Chawla because the land does not belong to his son rather the land was purchased by him in the name of his wife Pankajini Das, over which, his daughter-in-law Rima Das (appellant) is living with her family.
58. He had further deposed that his daughter-in-law (appellant herein) is taking care of her both sons and she is dedicated to her sasural and all of his family members are unhappy due to this litigation. He categorically stated that his son has illicit relation with Shruti Chawla and under pressure of Shruti Chawla, his son also started treated with cruelty to the wife at the instigation of Shruti Chawla. His son also poisoned the mind of younger son John Paul against appellant/wife and after the evidence of defendant, plaintiff has given room of his house to some other person and same has created nuisance in the family. This witness has specifically stated that his daughter-in-law has never committed cruelty nor deserted his son (respondent herein), so, his son is not entitled for any relief. 38 F.A. No. 76 of 2020
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59. Thus, from the aforesaid testimony of the DW.2 who is father of the respondent husband and even though he had supported the testimony of his daughter-in -law (appellant) but from impugned order it appears that the learned family judge has not taken note of the aforesaid evidence in proper manner. Further it needs to refer herein that the sister-in-law (D.W.5) and full sister (D.W.6) of the respondent/husband has supported the narration of the appellant wife. D.W. 5 Salina Das has categorically stated that plaintiff (respondent herein) is trying to oust Rima Das (appellant herein) from his house since 2019 under the fear of Shruti Chawla and the cause of entire dispute, according to her, is not dispute of ancestral property rather Shruti Chawla, a teacher in Beldih School, who wants to grab the property situated at Birsanagar.
60. It further appears from the order impugned that the learned family Judge has not appreciated the aforesaid evidences particularly the fact that the witnesses who had supported the narration of the appellant wife is kith and kin of the respondent/husband and as such there is no concrete reason to disbelieve their testimonies.
61. The learned trial Court has found the bald statement of the P.W.3 who had stated that his mother used to mix some harmful medicine in food of his father, to be an element of cruelty even though no specific attributability of commission of cruelty has been alleged to be there in the evidence of the respondent/husband but that has been accepted to be there by the learned trial Judge, in absence of any cogent evidence. Further from perusal of the impugned order in entirety it 39 F.A. No. 76 of 2020 2025:JHHC:16813-DB appears that learned family judge in advertence had not treated the suit in standalone as matrimonial suit rather the testimony of witnesses has been appreciated in respect to the property dispute which cannot said to be a proper approach.
62. This Court is of the view that the aforesaid consideration as has been given by the learned Family Judge cannot be said to be proper since cruelty is to be taken into consideration at the end of the same cannot be attributed upon the appellant/wife to have the ground of cruelty for the purpose of divorce.
63. Further, the ground of desertion has also been pleaded by the respondent/husband on the ground that both the husband and wife have been living separately since the year 2019.
64. The 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 willful neglect of the petitioner by the other party to the marriage.
65. This Court, after going through the judgment in entirety, has found that consideration has been given in order to come to the conclusion of the ground of desertion is not available to respondent/husband.
66. Herein there are no evidence to the effect that it is the appellant-wife who herself has left the matrimonial house on her own and has deserted the respondent/husband. Since, the factum of desertion is to be arrived at only on the basis of the fact that either wife or the 40 F.A. No. 76 of 2020 2025:JHHC:16813-DB husband has left the company of its own, then such type of separation will come under the purview of desertion. On the element of desertion, a specific finding is to be gathered from the evidence to arrive at to this conclusion. But after going through the record, we have found that it has not come on record that it is the appellant wife who has left her matrimonial house of her own rather it has come in the evidence that due to cruelty meted out to the appellant/wife she has left the company of the respondent husband.
67. This Court is of the view based upon the consideration that the word desertion as has been interpreted by the Hon'ble Apex Court that all types of separation cannot come under the fold of desertion as has been taken into consideration by the learned Family Judge in the facts of the present case rather the desertion is required to be proved and the same can only be said to be proved if evidence to that effect has come that it is the wife, who on her own will, has left the matrimonial house or the house of the husband.
68. Further, if the wife leaves the house of the husband on the ground of alleged torture and cruelty, then such type of separation will not come under the definition of desertion, therefore, it is considered view of this Court that the learned Family Judge has taken into consideration the aforesaid aspect of the matter and rightly negated the said ground of the respondent/husband.
69. This Court, therefore, is of the view that it is a case where consideration is to be required to be there on the ground of perversity 41 F.A. No. 76 of 2020 2025:JHHC:16813-DB and, according to our considered view, the judgment impugned cannot be said to be well based upon the consideration of the element of cruelty as per the interpretation made by the Hon'ble Apex Court with respect to the element of cruelty in the judgment referred hereinabove.
70. This Court, therefore, is of the view that the impugned judgment cannot be said to be passed on proper consideration of the ground of divorce, i.e., the element of cruelty. As such, the impugned judgment needs interference and, accordingly, the judgment dated 06.07.2020 and the decree dated 15.07.2020 passed in Original Suit No.344 of 2017 by the learned Addl. Principal Judge, Family Court, Jamshedpur is hereby quashed and set aside.
71. In the result, First Appeal No. 76 of 2020 is allowed. Decree accordingly.
72. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
I agree,
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
/A.F.R.
Samarth
42 F.A. No. 76 of 2020