Jharkhand High Court
Alka Dubey vs Parmod Nath Choubey on 25 April, 2025
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:12445-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 203 of 2023
1. Alka Dubey, wife of Pramod Nath Choubey and D/O Hirdyanand, aged
about 36 years, r/o village Baradhi Gola, P.O. and P.S. Akodhi Gola,
District-Rohtas, Bihar.
... ... Respondent/Appellant/Opp. Party
Versus
Parmod Nath Choubey, son of late Vijay Nath Choubey, aged about 41
years, r/o village and P.O. Sudna and P.S. Daltonganj (Town), District-
Palamau.
... ... Petitioner/Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
-------
For the Appellant : Ms. Sharda Kumari, Advocate
Mr. Aditya Kumar, Advocate
For the Respondent : Mr. Naiyar Eqbal, Advocate
Mr. Amit Kr. Verma, Advocate
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CAV/Reserved on 22.04.2025 Pronounced on 25/04/2025
Per Sujit Narayan Prasad, J.
1. The instant appeal under Section 19(1) of the Family Court Act, 1984 is directed against the order/judgment dated 02.09.2019 passed by the learned Principal Judge, Family Court, Palamau at Daltonganj in Original Suit No. 97 of 2018, whereby and whereunder, the petition filed under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955 by the petitioner/respondent seeking a decree of divorce against his wife, has been allowed.
2. The brief facts of the case leading to filing of the divorce petition by the husband needs to be referred herein as under:
The Respondent/Appellant/Opp. Party is the wife of petitioner/respondent and their marriage was solemnized on 19.06.2014 at village Baradhi Gola, Rohtas. After marriage respondent/appellant/opp. party came to her sasural at Sudna, Daltonganj with petitioner/respondent on 21.06.2014 where both the parties spent their conjugal life for a week. Thereafter brother of respondent/appellant/opp. party came to the house of 1 F.A. No. 203 of 2023 2025:JHHC:12445-DB petitioner/respondent on 29.06.2014 and respondent/appellant/opp. party went her Naihar along with him. It is submitted that after two months, Dwiragaman was performed and respondent/appellant/opp. party again came her sasural on 06.09.2014 and stayed for a week. It is stated that during this period respondent/appellant/opp. party continuously pressurized the petitioner/respondent to help her parents financially as such petitioner/respondent had transferred Rs. 1,48,500/- to the account and also given cash Rs. 2,46,000/- to his father-in-law. It is also stated that thereafter the behaviour of respondent/appellant/opp. party was changed and she started pressurizing the petitioner/respondent to visit her Naihar and on her request petitioner/respondent went his sasural with respondent/appellant/opp. party on 20.11.2014 and stayed there for three days and he returned his home alone. It is stated that respondent/appellant/opp. party is living in her Naihar since 2014 without any reasonable cause and respondent/appellant/opp. party had taken away her all ornaments and belongings with her. Petitioner/respondent had made several request to his in-laws and also to respondent/appellant/opp. party to come back and on 13.02.2015, 10.06.2016 and 01.11.2015 he had visited his sasural to bring his wife back but respondent/appellant/opp. party refused to come at Daltonganj. Ultimately petitioner/respondent had filed a petition before Secretary, D.L.S.A Palamau for restitution of his conjugal in which notice was issued to respondent/appellant/opp. party and her parents but they did not appear before D.L.S.A. Both the parties lastly lived together at Daltonganj on 10.11.2014 within the jurisdiction of this court. It is submitted that behaviour of respondent/appellant/opp. party towards the petitioner and his mother was not good and she always abused them. Once respondent/appellant/opp. party has beaten the petitioner/respondent due to which hand of petitioner/respondent got fractured and he was hospitalized at Daltonganj Hospital. Respondent/appellant/opp. party always insisted the petitioner/respondent to live at her parental house whereas petitioner wants to live with his mother. Respondent/appellant/opp. party tortured the petitioner/respondent physically and mentally and levelled false allegation against him. On the basis of above submission, petitioner/respondent filed 2 F.A. No. 203 of 2023 2025:JHHC:12445-DB the case seeking decree of divorce against his wife on the ground of desertion and cruelty.
3. The Family Judge had issued notice to the respondent/appellant/opp.
party. The notice shown to be received but the respondent/appellant/opp. Party did not appear in the case and as such, vide order dated 27.08.2018, the case proceeded ex-parte against the respondent/appellant/opp. Party. Thereafter, the respondent/appellant/opp. Party had appeared on 26.09.2018 and filed her vakalatnama along with a petition praying therein to recall the order dated 27.08.2018 for ex-parte proceeding.
4. The said petition was allowed and the case was referred to mediation board for reconciliation. But the mediation failed as per the report dated 26.02.2019. The written statement was filed on behalf of the respondent/appellant/opp. Party on 11.12.2018 along with a petition to recall P.W.-1 Gautam Narayan Pandey, who has been examined prior to appearance of the respondent/appellant/opp. Party on 11.09.2018.
5. The learned Family Judge has considered the plea taken in the written statement wherein the factum of marriage has been admitted. However, the denial has been made with respect to the allegation made by the petitioner/respondent and stated that allegation levelled by the petitioner/respondent is imaginary, vague and bogus.
6. The learned Court has formulated altogether four issues which reads as under:
I- Whether the suit, as framed, is maintainable in the eyes of law?
II- Whether the petitioner has a valid cause of action for the suit?
III- Whether the petitioner is entitled to get a decree of divorce in terms of provisions laid down U/s 13(1)(i-a)(i-b) of Hindu Marriage Act 1955, as prayed for?
IV- To what relief or reliefs, the petitioner is otherwise entitled to?"
7. Altogether four witnesses have been examined on behalf of the petitioner/respondent, namely, Gautam Narayan Pandey who has been examined as P.W.-1; Pappu Kumar who has been examined as P.W.-2;
3 F.A. No. 203 of 20232025:JHHC:12445-DB Ashok Ram who has been examined as P.W.-3 and; Pramod Nath Choubey who has been examined as P.W.-4, the petitioner/respondent of the present case.
8. While on the other hand, no witness has been produced and examined on behalf of the respondent/appellant/opp. party to rebut the case of the petitioner/respondent. The respondent/appellant/opp. Party remained absent and left making pairvi in the case.
9. Evidence which has been given by the respective witnesses is being referred as under:
(i) P.W-1 Gautam Narayan Pandey deposed that he knows both the parties to the suit, who are mentally and physically fit. Their marriage was solemnized on 19.06.2014 and they are living separately since November 2014. He deposed that respondent/appellant/opp. party stayed in her sasural for a week and during that period she used to quarrel with her husband and she had assaulted her husband by Danda due to which his hand got fractured and his treatment was made at Sadar Hospital, Daltonganj.
respondent/appellant/opp. party always demanded money from the petitioner to help her father and petitioner had given Rs. 2.46 lakh cash and also transferred Rs. 1.48 lakh in the account of her father. Respondent/appellant/opp. party did not want to live with petitioner as he was unemployed. Petitioner/respondent had gone several times to bring his wife back, but she flatly refused to come. This witness deposed that he is Mausa of petitioner/respondent, that is why he is knowing all the matter.
(ii) P.W-2 Pappu Kumar deposed that he knows both the parties to the suit and petitioner/respondent-Pramod Nath Choubey has filed this case against his wife Alka Dubey for getting divorce. Marriage of petitioner with respondent/appellant/opp. party was solemnized on 19.06.2014. Respondent/appellant/opp. party always quarreled with petitioner and they are living separately for five years.
Petitioner/respondent is unable to live with
4 F.A. No. 203 of 2023
2025:JHHC:12445-DB
respondent/appellant/opp. party as respondent/appellant/opp. party does not want to live with him. He further deposed that petitioner/respondent has no issue out of wedlock. He deposed that once respondent/appellant/opp. party and her family members assaulted the petitioner/respondent due to which his hand was fractured and he was treated at Daltonganj. He deposed that petitioner/respondent is unemployed therefore, his wife does not want to live with him. Petitioner/respondent had gone 2-3 times to bring his wife back but his wife flatly refused to come.
(iii) P.W-3 Ashok Ram deposed that he knows both the parties to the suit. Petitioner/respondent Pramod Nath Choubey has filed this case against his wife Alka Dubey. Marriage of petitioner/respondent with respondent/appellant/opp. party was solemnized on 19.06.2014 but the behaviour of respondent/appellant/opp. party was not proper. respondent/appellant/opp. party is living separately from petitioner/respondent for four and half years and they are not able to live together.
(iv) P.W-4 Pramod Nath Choubey, petitioner/respondent, deposed that he has filed the case against his wife Alka Dubey for getting divorce because she is living separately. He deposed that his marriage with Alka Dubey was solemnized on 19.06.2014 and since 11.11.2014 his wife is living separately. In the meantime, he had gone 3-4 times to bring her but she flatly refused to come. His wife is librarian in a Government School and gets Rs. 40,000/- per month as salary. He deposed that when his wife was living with him, he did private job and now he does not do any job. He deposed that his wife does not want to live with him, therefore he has filed this case. He deposed that his wife used to quarrel with him when he resided together. He deposed that once his wife had assaulted him fracturing his hand. He deposed that his mother had died but his wife had neither come to see her nor participated in her Shradh ceremony.
5 F.A. No. 203 of 20232025:JHHC:12445-DB
10. The learned Court has passed the decree of divorce merely taking into consideration that there is no reasonable cause to the respondent/appellant/opp. Party to live separately. The learned Family Judge has also come to the conclusion that there is irretrievable breakdown of marriage and because of such breakdown of marriage, the marriage between the parties has been rendered as a complete dead wood and no useful purpose will be served by keeping such a marriage alive on a paper.
11. The said judgment is under challenge in this appeal.
Argument on behalf of the learned counsel for the Respondent / Appellant / Opp. Party:
12. Ms. Sharda Kumari, learned counsel for the respondent/appellant/opp. Party has taken the following grounds in assailing the impugned judgment:
(i) The learned Family Judge although has formulated altogether four issues but none of the issues has been considered and answered which is apparent on the face of the order/judgment. The ground has been taken that without answering the issues, the learned Single Judge has come to the conclusion that the marriage has become irretrievable without any basis thereof.
(ii) The conclusion so arrived at holding the marriage to be irretrievable cannot be said to be just and proper reasoning rather it would be evident that the same is on the presumption merely because the respondent/appellant/opp. Party has been shown to be living separately.
(iii) Even though the ground of desertion which has been formulated as a specific question has not been discussed by taking into consideration the evidence of the petitioner/respondent. The ground has been taken that in the proceeding although the respondent/appellant/opp. Party has not appeared subsequent to the appearance and filing of her written statement wherein the plea has 6 F.A. No. 203 of 2023 2025:JHHC:12445-DB been taken by denying the allegation then even, in her absentia the issue ought to have been answered by its proper consideration and not straightway come to the conclusion holding the marriage irretrievable.
(iv) The ground has been taken that even in the case of non-appearance of a party in a proceeding, it is the bounden duty of the Court to consider the fact on the basis of the settled premise of the law and not to go on conjecture and surmise as has been done in the present case.
13. Learned counsel for the respondent/appellant/opp. Party, based upon the aforesaid ground, has submitted that it is therefore a fit case to interfere with the impugned judgment by remitting it before the learned Family Judge for hearing afresh.
Argument on behalf of the learned counsel for the Petitioner/Respondent:
14. Mr. Naiyar Eqbal, learned counsel for the petitioner/respondent has taken the following grounds in defending the order/judgment impugned:
(i) The ground has been taken that the respondent/appellant/opp. Party had appeared and also filed vakalatnama along with her written statement but subsequent thereto, she has chosen not to appear and as such, the Court had no option but to proceed to decide the issue on merit. The learned Family Judge has proceeded and has decided the matter on the basis of the material available on record, as such, it cannot be said that the judgment suffers from any error.
(ii) The argument has been advanced that it is not available for the respondent/appellant/opp. Party to take the ground by raising the impropriety in the impugned judgment once she has chosen not to appear before the learned Family Court.
(iii) The learned Family Judge after taking into consideration the evidence on record which was recorded in favour of the petitioner/respondent and based upon the same, the ground of desertion has been found to be there and on account of the aforesaid 7 F.A. No. 203 of 2023 2025:JHHC:12445-DB evidence the consideration has been given by the learned Family Judge holding the marriage to be irretrievable and if in that premise, the decree of divorce has been passed, the same cannot be said to be suffer from any error.
15. Learned counsel for the petitioner/respondent, based upon the aforesaid ground, has submitted that the instant appeal therefore needs to be dismissed.
Analysis:
16. We have heard the learned counsel for the parties as also the finding recorded by the learned Family Judge in the impugned judgment as also the record of the learned Family Judge.
17. The issue which requires consideration is that as to whether in a case where a party has chosen not to appear, is it available for the Court of Law to come to the conclusion straightway without answering the issues in a proceeding like of such nature where the procedure as available under the Civil Procedure Code is to be applied in view of the provision of Order XX.
18. This Court, before answering the aforesaid issue, needs to refer herein the admitted fact as per the material available on record. The fact about the appearance of the respondent/appellant/opp. Party is not in dispute rather the respondent/appellant/opp. Party had appeared and filed vakalatnama along with written statement.
19. The witnesses have been examined on behalf of the petitioner/respondent in absentia of the respondent/appellant/opp. Party since she has chosen not to appear subsequent to the appearance and filing of the written statement.
20. The learned counsel for the respondent/appellant/opp. Party has submitted that the impugned judgment has been challenged on the ground that the same has been passed ex-parte. But, this Court, taking into consideration the conduct of the respondent/appellant/opp. Party to the effect that she had appeared by filing vakalanama along with written statement, hence, is of the view that once a party has appeared and thereafter chosen not to 8 F.A. No. 203 of 2023 2025:JHHC:12445-DB appear then the judgment passed in such circumstances, cannot be said to be a judgment passed in a ex-parte proceeding.
21. But, the question herein which requires consideration is that if in such circumstances, if a party has chosen not to appear, what is required for the Court to do in order to do substantive justice in absentia of either of the parties.
22. The law is well settled that if in a case of ex-parte decree in a case where written statement has been filed, the issue is required to be framed and the issue is also required to be framed in a case where a party has chosen not to appear even after service of notice.
23. In the present case, altogether four issues have been framed as has been referred and quoted above, in which one of the issues is of cruelty and desertion. It is also admitted that the denial of the aforesaid allegation of cruelty and desertion is available in the written statement filed on behalf of the respondent/appellant/opp. Party.
24. The learned Family Judge although has formulated four issues and the primary issue is based upon the ground taken for divorce is cruelty and desertion but none of the issues have been answered rather the statement recorded in the evidence produced on behalf of the petitioner/respondent has been taken into consideration and based upon the same, the conclusion has been arrived at by the learned Family Judge holding the marriage to be irretrievable and the same has been made as a ground for passing the decree of divorce.
25. The question herein is that when the written statement has been filed denying the said allegation and based upon the pleading made in the plaint and the written statement, the issue has been framed, is it not required by the learned Family Judge to deal with the issues separately for the purpose of coming to the conclusion as to whether it is a case made out for decree of divorce on the ground of cruelty.
"Cruelty" has been defined by the Hon'ble Apex Court in the case of Dr. N.G. Dastane vs. Mrs. S. Dastana, (1975) 2 SCC 326 wherein 9 F.A. No. 203 of 2023 2025:JHHC:12445-DB 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.
26. This Court, in order to scrutinize the legality and propriety of the aforesaid finding, 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.
27. 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."
28. 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."
29. 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.
30. 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 10 F.A. No. 203 of 2023 2025:JHHC:12445-DB while he was conducting a cross-examination. The Hon‟ble Apex Court held these allegations against the husband to constitute "cruelty".
31. 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.
32. 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.
33. 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 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. The purpose of referring the aforesaid judgments is that the cruelty is to be adjudged on the basis of the pleading made and supported by the evidence. The purpose of framing the issues is the consideration of the 11 F.A. No. 203 of 2023 2025:JHHC:12445-DB rival pleading of the parties based upon the evidence then only it will be said to be proper adjudication in the eyes of law.
35. The written statement since has been filed on behalf of the respondent/appellant/opp. Party and thereafter, the issue of cruelty has been formulated then it was the bounden duty of the learned Family Judge to consider the ground of cruelty in order to reach to the conclusion as to whether the petitioner/respondent has been able to make out a case to prove the element of cruelty or not.
36. The definition of desertion is required to be referred herein as defined under 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.
37. 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.
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 12 F.A. No. 203 of 2023 2025:JHHC:12445-DB allowance to a wife whom he has abandoned is no answer to a charge of desertion.
38. 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.
39. It is, thus, evident from the aforesaid reference of meaning of desertion that the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end.
40. 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.
41. 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 of this Court. The law consistently laid down by this Court is 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 13 F.A. No. 203 of 2023 2025:JHHC:12445-DB 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 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."
42. The aforesaid factum of desertion is required to be established by going through the plaint vis-à-vis written statement and the evidence, meaning thereby, the consideration is required to be there on the aforesaid issue for the purpose of coming to the conclusion of availability of element of desertion. But the said aspect of the issue is lacking in the impugned judgment.
43. The issue of non-appearance is admitted one but even in such circumstances, the Court since is to do substantive justice and if the party has appeared and taken the plea by filing written statement then the consideration ought to have been there, then only it will be said to be proper consideration of the issues for the purpose of doing substantive justice.
44. This Court, has further found that the learned Family Judge has gone by making observation that the marriage has become irretrievable because of such breakdown of marriage and has been rendered as a complete dead wood and no useful purpose will be served by keeping such a marriage alive on a paper. But, this Court is of the view that before coming to such finding, it was incumbent upon the learned Family Judge to answer the issues, particularly the issue no.3 independently but none of the issue has 14 F.A. No. 203 of 2023 2025:JHHC:12445-DB been discussed and straightway the finding has been arrived at holding the marriage to be irretrievable breakdown.
45. This Court, in view of the aforesaid discussion, is of the view that the judgment impugned suffers from perversity.
46. The word 'perverse' 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] 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.15 F.A. No. 203 of 2023
2025:JHHC:12445-DB "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 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.""
47. This Court, taking into consideration the definition of "perversity" and based upon the discussion aforesaid, is of the view that the impugned judgment needs to be interfered with.
48. Accordingly, the impugned judgment dated 02.09.2019 passed in Original Suit No. 97 of 2018, is hereby quashed and set aside.
49. In consequence thereof, the matter is remitted before the learned Family Court for consideration of the case afresh, in accordance with law.
50. Pending interlocutory application(s), if any, also stands disposed of.
I agree (Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
Saurabh /A.F.R.
16 F.A. No. 203 of 2023