Kumar Saurabh vs Lata Sinha @ Lovely

Per Sujit Narayan Prasad, J.:

The instant appeal under Section 19(1) of the Family Courts Act, 1984 is directed against the judgment dated 01.08.2024 and Decree signed on 08.08.2024 passed by the learned Principal Judge, Family Court, Ranchi in Original Suit No.699 of 2021, whereby and whereunder, the petition filed under Section 13(i-a)(i-b) of the Hindu Marriage Act, 1955 by the Petitioner (appellant herein) seeking a decree of divorce against his wife (respondent herein), has been dismissed.

The brief facts of the case leading to filing of the divorce petition by the appellant/ plaintiff needs to be referred herein as under:

The petitioner's case is as that he was married with respondent Lata Sinha @ Lovely in accordance with Hindu rites and customs on 29.01.2016 at Ranchi and at the time of marriage no gift/ dowry was given.

The petitioner and respondent, after marriage, lived together under the same roof but not as husband and wife till 20.07.2021, the respondent has deserted the petitioner since 01.02.2016. She never allowed the petitioner to enjoy the conjugal life since her marriage. She never wanted to live with the petitioner and often went to her parental home without giving any information to the petitioner and his family members. He tried his best to save the matrimonial life and bring back the respondent several times from her parental home but she often went to her parental home after residing in matrimonial home for a week or so. She has gone to her parental home on 20.07.2021 and since then she is residing there.

It has further been stated that the respondent along with her father Arun Kumar Sinha and brother Anand Sinha and two unknown persons had visited the house of the petitioner when his mother was alone, they forcibly entered in the house of petitioner and snatched the key of Almirah and committed theft of Jewelleries worth Rs.10-Lakhs and cash of Rs.02-Lakhs.

The behaviour of the respondent was very rude and she used to become hyper on small things and always wanted to quarrel with petitioner and his family members and it appears that she is a patient of Psychopathic disorder. The petitioner has got no child from his conjugal life with respondent.

It has also been stated that respondent often misbehaved and abused the petitioner in front of his family members but the petitioner in order to save his matrimonial life took no care of it and informed his in-laws and family members regarding her ill behaviour but there was no change in the behaviour of respondent. The mother of petitioner is old lady and dependent on petitioner for her livelihood and this petitioner is happily obeying his moral obligations towards his mother but the respondent always abused him.

The cause of action for the suit arose on 30.01.2016 due to none consummation of marriage by not allowing the petitioner to enjoy the conjugal life by respondent and on several other dates.

The respondent has always treated the petitioner with physical and mental cruelty and she is suffering from Psychopathic disorder. So, it has been prayed to dissolve the marriage of petitioner with respondent and grant other reliefs to which he is found to be entitled.

The case was admitted for hearing and upon notice the respondent-wife appeared.

Thereafter, the respondent-wife filed her written statement in which the respondent has denied the allegations of the petitioner that she has deserted him for more than two years.

She has claimed that she has left matrimonial home under compelling circumstances on 04.07.2020. It has also been denied that marriage of petitioner with this respondent was not consummated, the fact is that both the parties were leading a happy conjugal life but it is after death of father of petitioner, the petitioner and his mother started misbehaving with respondent and committed cruelties with her.

It has also been denied that this respondent does not want to live in the matrimonial home and she quarrels with the petitioner and his family members. It has also been denied that she used to go to parental home without informing the petitioner and his family members, the fact is that she always stayed in her matrimonial home but when petitioner used to leave his house for several weeks without informing his wife/ respondent then in such circumstances she used to go to her parental home for few days and after spending few days she used to return back to her matrimonial home.

It has also been stated that this respondent was forced to leave her matrimonial home on 04.07.2020 and when she left the matrimonial home, she also left her all articles, jewelleries etc. in her Sasural and it has been denied that she took with herself all her articles, jewelleries etc.

It has further been stated that petitioner wrongly alleged that she is a patient of Psychopathic disorder and such allegation has been made without any reason or proof and that itself shows that how much mental cruelties she suffered in her matrimonial home.

It has been admitted that this respondent has got no child from her conjugal relation with the petitioner and it has been stated that this is one of the reasons that she was subjected to torture in her matrimonial home.

It has been stated that petitioner is himself a very irresponsible man and he never took care of respondent and for her basic needs. The mother of the petitioner is also not dependent on the petitioner as she gets pension after death of her husband who was a retired Government Servant.

It has further been stated that respondent and her family members were harassed by the petitioner and his mother and the petitioner had never any cause of action for filing the instant suit for divorce and this suit has been filed by the petitioner at the instigation of his mother. The claim of the petitioner has been denied by the respondent that she has deserted the petitioner since their marriage. In the plaint the appellant has himself stated that this respondent went to her matrimonial home on 20.07.2021 and as such the ground of desertion for divorce does not exist. This respondent has never committed any cruelty as has been alleged by the petitioner which could be a ground for divorce so it has been prayed to dismiss the suit with cost.

Based upon the pleading, the learned Family Court altogether has framed seven issues which are as follows:

All the aforesaid issues were decided against the appellant-husband and in favour of respondent-wife and decreed the suit on contest in the following terms :-

The appellant-husband, being aggrieved with the judgment passed on 01.08.2024, has approached this Court by filing the present appeal.

Learned counsel appearing for the appellant-husband has taken the following ground in support of his case: -

Learned counsel appearing for the appellant has submitted that the order passed by learned court below suffers from infirmities apparent on the face of it, and as such the same is bad, perverse and not sustainable in the eye of law.

The Learned Family court has failed to appreciate that the very purpose of marriage between the appellant and respondent had admittedly got frustrated on 04.07.2020 the day the respondent finally left the matrimonial home and never returned back. There is nothing in the pleadings of either of the party to show that there was even one percent chance of survival of the marriage and thus admittedly on both sides it was agreed that the marriage between them was dead and in such circumstances the Learned trial court should have had given the dead marriage a decent quietus.

Learned Family court has failed to appreciate that visibly and tangibly it was proved that both the appellant as well as respondent had no intention to continue with the matrimonial relationship nor the respondent cared to come forward before the family court to take a chance for revival. Thus, the learned Family Court failed to appreciate that it was a case of dead marriage wherein both the parties were trying to shift the fault on the other.

The learned Family Court failed to appreciate that while applying the sub clause to section 13(1) of the Act of 1955 one has to have a proper understanding of the position of the spouse opposing the petition for grant of divorce as the consequences and impact may differ from person to person based upon factors such as social setting educational qualification, financial status, employment, caste, community, age and place. In the instant case both the parties are well educated and the respondent knew the consequences of nonfulfillment of matrimonial obligation coupled with the fact that she had been staying away from the matrimonial home since 04.07.2020.

The learned Family court failed to appreciate that it is never proper to give a straight-jacket definition of cruelty which has nowhere been defined precisely. The Trial court took a very narrow and pedantic meaning of cruelty. The trial court equated cruelty with a kind of behavior which was grave and weighty giving the other side a belief that her further continuation with the matrimonial life would put her in danger of life itself. Whereas in the instant case the issue between the parties was not about proving danger but then both the parties by lodging criminal case against each other had created a situation wherein divorce was the only solution. So, the learned trial court instead of giving judgment on fault liability should have had delivered judgment on the basis of actual admitted facts which irresistibly showed that the marriage was dead and it was no point in keeping both the parties bound by a dead marriage leading to multiplicity of litigation and bad blood.

The learned Family court failed to appreciate that in the instant case it was not about the ideals in family life and the fault committed by either of the party but then the kind of allegation hurled by both the parties necessitated the trial court to see that no further purpose would be served by allowing the continuation of marriage.

The learned Family court failed to appreciate that 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 matter. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances. In the instant case admittedly, the respondent left the matrimonial home on 04.07.2020 and thereafter there has been no cohabitation. There was no child borne from the wedlock. None of the parties were agreeable to stay together. There was allegation and counter allegation without there being any light of reconciliation. Both the parties have lodged criminal case against each other. Thus, in such peculiar backdrop it is never in the interest of public policy and justice that both the parties be forced to carry a dead marriage which is leading to enmity and lodgment of criminal cases.

The learned Family court failed to appreciate that the world today had moved ahead from the conservative society perspective of continuation of marriage even without there being any element of marriage in the relationship to a libertarian attitude wherein the grounds of separation and dissolution of marriage has been construed with latitudinarianism.

The learned Family court failed to appreciate that a social justice adjudication approach was required in the instant case and not adversarial approach. Thus, the court should have been more on the side of the sensitivity of not putting both the parties a burden of carrying a dead marriage.

The learned Family court failed to appreciate that the appellant in no way is trying to take any advantage of the situation by seeking divorce rather the facts and circumstances prevailing between the appellant and respondent was such that there was no point in allowing the continuation of a dead marriage.

The learned Family court in sum and substance failed to appreciate that the appellant was seeking divorce mainly on the ground that the marriage between him and his wife had irretrievably broken down, the marriage was utterly devoid of sweetness, no matrimonial obligations were being fulfilled and as such in such circumstances continuation of a dead marriage only because the appellant had failed to prove his case beyond all reasonable doubt was not correct.

The learned Family court has failed to appreciate that the age of marriage of the appellant was being lost in the jargon of litigation, he was being kept away from the licentious indulgence of passion in the matter of procreation which in itself is against the basic tenets of human right.

The learned Family court failed to draw adverse inference as against the respondent by taking into consideration that the respondent was willfully and deliberately avoiding the consummation of marriage.

The learned Family court has also failed to appreciate the bonafide of the appellant as the appellant did not conceal any fact from the court in fact the appellant without any fear himself gave information to the court about the pendency of the criminal case lodged by the respondent and as well as his lodgment of case against the respondent.

Learned counsel has submitted that the learned Family Judge has erroneously categorized the assault on the mother and the filing of criminal cases as “ordinary wear and tear” which is a perverse finding contrary to the weight of evidence.

In support of his argument, learned counsel for the appellant has relied upon the judgments rendered in the case of K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 247, Rani Narasimha Sastry v. Rani Suneela Rani, (2020) 18 SCC 247, Kahkashan Kausar @ Sonam v. State of Bihar, (2022) 6 SCC 599, Vidhya Viswanathan v. Kartik Balakrishnan, (2014) 15 SCC 21, Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 and Joydeep Majumdar v. Bharti Jaiswal Majumdar, ((2021) 3 SCC 742, Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558.

Learned counsel for the appellant, based upon the aforesaid grounds, has submitted that the judgment impugned suffers from perversity, as such, not sustainable in the eyes of law.

Learned counsel for the respondent-wife, defending the impugned order, has taken the following grounds: -

It has been submitted that the appellant has sought divorce on the ground that the behaviour of respondent-wife towards the appellant and his family members is torturous and, the learned Family Court, after taking into consideration the evidence, has held that the appellant-husband has not succeeded to prove and establish the ground of cruelty and has rightly dismissed the suit.

Learned counsel for the respondent has further submitted that learned trial court has rightly held that the appellant is not entitled for the decree of divorce on the ground of cruelty and desertion because the appellant has miserably failed to prove his case even to the extent of preponderance of probabilities.

Learned counsel has submitted that the respondent had never subjected the petitioner with cruelty nor she had ever quarreled with him and the respondent had never left her matrimonial home without permission of her husband and she was always ready to lead a peaceful and proper conjugal life with the petitioner with full love and affection and proper dignity. But the petitioner and his family members were regularly subjecting the respondent to cruelty and they were abusing and assaulting her also for which the respondent had already filed a Case against the appellant/petitioner.

Learned counsel for the respondent has submitted that the respondent still wants to live with the appellant and ready to lead a dignified life to which she is entitled as being wife of the appellant.

Learned counsel has further submitted that it is not correct to say that the respondent has deserted the appellant, rather, under compelling circumstances the respondent has left her matrimonial home on 04.07.2020.

Learned counsel has further contended that, according to the appellant’s own admission, the cause of action arose on 04.07.2020, whereas the suit for divorce was instituted on 18.11.2021, which falls short of the statutory period of two years.

Learned counsel for the respondent-wife on the aforesaid grounds has submitted that the impugned judgment requires no interference by this Court.

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.

This Court, before looking into the legality and propriety of the impugned order, requires to refer the testimonies of the witnesses, as available on record.

The appellant, in support of his case, has adduced five witnesses including himself. The relevant portion of the testimonies of the witnesses are mentioned as under:-

P.W.1 Kumar Saurabh, appellant himself, P.W.-2 Rekha Verma, mother of petitioner, P.W.-3 Shashank Verma, brother of petitioner, P.W.-4 Ruby Devi, maid of the house of petitioner and P.W.-5 Rupesh Verma being closed relative of the petitioner have fully supported the case of the appellant and their evidence is more or less similar to each other. They have deposed about solemnization of marriage between appellant and respondent on 29.01.2016 and the marriage was performed without any dowry.

They have deposed that after marriage respondent came to her matrimonial home but her behaviour towards the family members of appellant was not good and she always remained aggressive.

They have deposed that on petty matters the respondent used to quarrel with the family members due to which atmosphere of the house remained tense. The appellant in his evidence stated that his wife was not capable to work as house wife and after few days he realized from her conduct that she needs to be consulted with psychiatrist. Her attitude and behaviour were never like a normal lady and he felt cheated from his marriage. The respondent without informing any family members went to her parental home once or twice in a month and on asking she used to abuse and threatened the appellant and his family members to implicate and send them to jail in false case.

They have further deposed that after marriage the appellant never lived happy and they never led a happy conjugal life with each other due to which there is no child out of their wedlock. She always kept herself busy on mobile phone and when she was inquired for the same, she hurled abuses on appellant and his family members.

They have also deposed that one day respondent called some anti-social elements from her parental home and they created nuisance in the house of the appellant in this regard Complaint Case No.9044/2021 was lodged.

It has further been deposed that respondent has also lodged a false dowry case at Aurangabad (Bihar) against the appellant and his family members.

They have deposed that after getting fed up from respondent, the appellant used to say for committing suicide and due to rude and aggressive behaviour of respondent the family members of appellant are feeling ashamed in the society.

P.W.-5 has deposed that being guardian he tried to pacify the matter made call to the father of respondent and when he did not come then he himself tried to convince the respondent but she never adopted positive approach

During cross-examination P.W.-1 (appellant) has deposed that his marriage with respondent was never consummated. This witness has deposed during cross-examination that his mother told him that she with respondent Lata Sinha had gone to the Doctor and Doctor said that everything is O.K. and since 20.07.2021 he is living separately from respondent-wife.

He has further deposed that his father-in-law had transferred Rs.5.20-Lakhs on 24.11.2015 and Rs.4.50-Lakhs on 10.12.2015 to the account of his father for the purpose of marriage expenses.

He has deposed that presently he is posted at Chanho and on Saturday and on holidays used to remain in Ranchi. At para-39 this witness has deposed that his wife used to go to her parental home once in a month and after staying 2 to 10 days she used to return.

The appellant has deposed in his cross-examination that he has neither stated in his petition nor in his evidence that he wanted to keep the respondent with him in his working place at Simdega and he loves his wife very much.

He has further deposed that before the year 2018 behaviour of respondent was good. After the year 2018 her behaviour changed when he returned from Simdega, thereafter, his mother has apprehension from his wife. The respondent used to abuse his mother when there was controversy between him and his wife. His wife (respondent) always went to her parental home which was the reason of controversy between him and his wife. He has not received any notice sent by the respondent on 19.08.2021 and he has not sent any reply.

He has deposed that it is wrong to say that they tortured the respondent for dowry at Aurangabad and he has not provided any maintenance to his wife. Due to misunderstanding between his mother and wife and under the instigation of his mother he is not ready to keep the respondent and he denied the suggestion that he filed this case after getting notice on false allegations.

During cross-examination P.W.-2 mother of the appellant has deposed that on the day of 15^th August some people had come and assaulted. The respondent took away her ornaments worth Rs.06-Lakhs and also her ornaments worth Rs.04-Lakhs along with documents/paper except this she has nothing to say.

P.W.-3 is own brother of appellant has deposed in his cross-examination that CCTV Camera is installed at the door of his house. He has further deposed that he has no knowledge about any Notice sent by his sister-in-law (Bhabhi) to his brother. He has also no knowledge that after receipt of Notice of his Bhabhi, his brother. has filed Complaint Case No.9044/2021. He stated in cross-examination that his brother/appellant was posted as Aayush Doctor at Simdega from where he used to visit Ranchi on weekly basis.

He has also stated that they never objected when his Bhabhi went to her Maika.

P.W.-5, who is maternal uncle of appellant, in his cross-examination has deposed that he has no knowledge that at the time of marriage father of respondent had transferred Rs.5.02-Lakhs on 24.11.2015 and Rs.04.50-Lakhs on 10.12.2015 to the account of appellant’s father. But he has knowledge that at the time of marriage ornaments worth Rs.5-6-Lakhs were given by appellant to respondent but he has no proof.

He has further deposed that on 16.08.2021 at about 11:00 p.m. his sister informed that father of Lata Sinha (respondent) namely Arun Kumar Sinha, her brother and other two persons had come to her house and they assaulted them and the respondent along with them took away her ornaments and other ornaments worth Rs.2-Lakhs given to respondent by appellant at the time of marriage, she also took away some documents/paper.

He went to his sister's house next day i.e. on 17.08.2021, and saw that they were in fear but no information in this regard was given to Police Station by his sister or his maternal nephew and he has no knowledge that what other things happened.

This witness has further deposed that he has not read over the petition as such he cannot say that on what basis the appellant has filed this divorce suit. At para-28 this witness has deposed that respondent went from her Sasural on 15^th or 16^th July, 2021 but again he stated that on 20^th July 2021.

This witness has deposed that it is wrong to say that on 04.07.2020 due to demand of dowry and torture the respondent went to her Maika and in the month of January, 2021 father of respondent requested for restitution of respondent. He has also no knowledge that after receipt of legal notice from the Advocate of respondent on 16.08.2021 the appellant has filed Complaint case no.9044/2021.

P.W.-4 Ruby Devi, who is maid (house help) of the house of appellant, has supported the case of the appellant. She has deposed that since the year 2007 she is working in the house of the appellant as maid. The marriage of Kumar Saurabh and Lata Singh @ Lovely was solemnized in the year 2016 without any demand of dowry.

She has deposed that after marriage between the parties she never saw peace in the house of the appellant and they used to quarrel every day. Lata Sinha @ Lovely was always busy to talk with others over phone and without giving information used to go to her parental home as well as she used to quarrel with Kumar Saurabh and his family members.

She also deposed that in front of Mohalla People the respondent has abused the appellant and his family members.

During cross-examination this witness has deposed that a maid cannot have any concern about transaction of money. The appellant’s father had not shown his account to her and she has no idea that at the time of marriage any transaction took place between both families.

This witness further deposed that neither the appellant nor his mother ever told her that Lata Sinha talks with whom.

This witness has deposed that quarrel used to take place between the respondent and the appellant but she cannot say date, day and time.

This witness has stated that she has no knowledge about the date, day and time when respondent used to abuse the appellant and his family members in front of Mohalla People by coming out from the house.

The respondent-wife has examined two witnesses including herself in support of her case. The statement of the witnesses is being referred herein :-

R.W.-1 Lata Sinha @ Lovely is the respondent herself and R.W.-2 Arun Kumar Singh is the father of respondent.

They have supported the case of respondent as made out in written statement. They have deposed that the present divorce suit has been filed by the appellant after receipt of Advocate's Notice whereby the appellant was called for resolving the disputes between both the parties. Copy of legal notice has been marked as ‘Y’ for identification.

They have deposed that marriage between both the parties has been solemnized on 29.01.2016 at IMA, Marriage Hall, Karamtoli Chowk, Ranchi. After marriage on 30.01.2016 the respondent came to her matrimonial home, started living with family members and led conjugal life with appellant in Amrawati Apartment situated at Lalpur, Ranchi.

The respondent has deposed that till the life time of father-in-law she led a peaceful conjugal life with the appellant and after his death the mother-in-law started showing her true colour and she made her life hell. The respondent told about cruel behaviour of mother-in-law to her husband (appellant) but he did not take any care and due to which cruelties upon the respondent increased.

She has deposed that on 04.07.2020 respondent went to her parental house situated at Sanskriti Vihar Colony, Bariatu, Ranchi due to utmost physical and mental cruelty committed by the appellant, mother-in-law and brother-in-law (Dever) and in the month of February, 2021 the respondent went to her uncle's house situated at Aurangabad. In the month of January, 2021 father of respondent tried to reconcile the matter and requested the appellant to keep respondent but all went in vain.

Thereafter, respondent sent Advocate's Notice to the appellant on 16.08.2021 for settlement of disputes but instead of resolving the dispute the appellant filed Complaint Case No.9044/2021 against the respondent, her father and brother on the false and frivolous grounds. The respondent has brought her medical prescription and reports which have been marked as Y/2 to Y/6 for identification.

The respondent has deposed that it is wrong to say that she does not want to live with the appellant and without giving any information she used to go to her parental home. The respondent is living separately from appellant and his family members since 20.07.2021 and it is also wrong to say that respondent is not capable to lead conjugal life with appellant.

During cross-examination the respondent has deposed that during life time of father-in-law her conjugal life was running smoothly she had no complain against anyone but after his death in the year 2017 in presence of her husband (appellant) respondent was tortured.

This witness has further deposed that after retirement, father of respondent constructed house at Sanskritik Vihar Colony, Bariatu. She stated that distance between her Sasural and Maika was very less, but she used to visit her Maika very less.

This witness has stated that it is wrong to say that without giving any information she used to go her parental home and lived there for 10-15 days. She stated very clearly that after their marriage her husband used to establish physical relations with her, and she was consulted with doctor as she could not conceive but even after treatment, she could not conceive.

She denied the suggestion that she avoided to establish physical relation with her husband as a result she could not bear child. She has even stated that her husband used to establish physical relations with her till she left her Sasural on 04.07.2020 and even thereafter she tried to establish physical relations with him. The respondent has an unmarried brother-in-law (Dever) and a married sister-in-law whose marriage has been solemnized at Dhanbad.

This witness has further deposed that Complaint Case No. 9044/2021 is pending. She has also stated in para-67 of cross-examination that she has filed criminal case against the appellant in the year 2022 and also case of Maintenance and Domestic Violence Act case from Aurangabad as her ancestral house is situated at Aurangabad, Bihar.

She has deposed in her cross-examination that she still wants to live in her Sasural. provided behaviour of her mother-in-law gets proper.

During cross-examination, R.W.-2 father of respondent has deposed that from his salary he maintained and educated his children, he is an Income Tax Payee.

This witness has further deposed that after the death of his Samdhi there are three members in the Sasural of his daughter who are his son-in-law, younger brother and widow mother of his son-in-law.

He has deposed that when his daughter was leaving her matrimonial home he came to his house from there, he sent her to his parental home at Aurangabad. His son-in-law never went to Aurangabad. It is true that his daughter has filed criminal case u/s 498A I.P.C. and maintenance case which are pending.

This witness has denied the suggestion that without any reason and torture his daughter has filed 498A case against the appellant. He is on bail in Complaint Case No.9044/2021. This witness has also deposed that till the life of his Samdhi everything was going on smoothly but after his. death the appellant and his mother started torturing his daughter.

This witness has denied that his daughter was not agree to keep the mother of appellant and for which she used to torture the appellant and they instigated his daughter through mobile due to which his daughter left her matrimonial home. He stated that he has left his daughter at parental place due to shame of society.

Besides oral evidence, documentary evidences were also adduced, which were marked as exhibits.

The learned Principal Judge, from the statements of the witnesses so produced on behalf of the parties, has come to the conclusion that appellant/petitioner has miserably failed to prove the grounds of alleged cruelty and desertion pleaded by him in his petition.

It has been observed by the learned Family Court that the appellant has claimed that the respondent was subjecting him with cruelty and she used to abuse and threatened the appellant and his family members to implicate and send them to jail in false case, but, in his entire evidence the appellant has not disclosed any such specific incident from which it can be even remotely inferred that the conduct of the respondent was so cruel that it has become impossible for the appellant to live with her and the assertions made by the appellant are quite general in nature.

From the testimony so recorded of the appellant-husband, the learned Principal Judge, Family Court has come to the conclusion that in the instant case, except the general and omnibus allegations made by husband against his respondent-wife, no cogent convincing, clinching evidence, no concrete documentary evidence has been led to substantiate the charges of cruelty and desertion. The onus to prove the grounds taken for divorce squarely rests on the husband which are required to be discharged by leading a cogent, tangible and reliable evidence.

The learned Family Judge has gone into the interpretation of the word “cruelty” and “desertion” and assessing the same from the material available on record as also the submission made in the pleading, has found that the element of cruelty and desertion has not been established. The said finding of the learned Family Court has been assailed herein by way of filing the instant appeal.

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).

Sub-section (1) to section 19 of the Family Courts Act provides that an appeal shall lie from every judgment or order not being an interlocutory order of a Family Court to the High Court “both on facts and on law”. Therefore, section 19 of the Family Courts Act is parallel to section 96 of the Code of Civil Procedure, the scope of which has been dealt with by the Hon'ble Apex Court in series of judgments.

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:

Further, it needs 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 but herein since grave allegation of extra-marital affair has been alleged therefore cogent evidence is required to be laid by the plaintiff/appellant.

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.

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.

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.

It needs to refer herein that 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:

Thus, from the aforesaid it is evident that if any order made in conscious violation of pleading and law then it will come under the purview of perverse order. Further “perverse verdict" may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.

Thus, “perversity” refers to a finding or decision so unreasonable or irrational that no reasonable person acting judicially could have reached it. It signifies a gross and unreasonable assessment of evidence or law by a court.

Further Perversity is a high threshold for intervention, distinguishing it from a mere error of fact or law. The "safest approach on perversity is the classic approach on the reasonable man's inference on the facts but inadequacy of evidence or a different reading of evidence is not perversity, reference in this regard be made to the judgment rendered by the Hon’ble Apex Court in the case of Damodar Lal v. Sohan Devi, (2016) 14 SCC 197.

In the backdrop of the aforesaid settled position of law this Court is now adverting to examine that whether the prayer of the appellant for dissolution of marriage is fit to be allowed on the ground of cruelty and desertion alleged to be committed by the respondent wife.

Now this court is adverting to the issue of cruelty. It needs to refer herein that 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.

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.

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.”

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.”

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.

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 Apex Court held these allegations against the husband to constitute “cruelty^”.

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.

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.

Further in the case of Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288, the Hon’ble Apex Court has held as follows:—

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: —

The Hon’ble Apex Court in the case of K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226 has observed that cruelty is evident where one spouse so treats other and manifests such feelings in other, as to cause reasonable apprehension in mind of other that it would be harmful or injurious to reside with other spouse and cruelty may be physical or mental. It has further been observed that staying together under the same roof is not a precondition for mental cruelty. Spouse can cause mental cruelty by his or her conduct even while he or she is not staying under the same roof.

In matrimonial relationship cruelty mean absence of mutual respect and understanding between spouses which embitters relationship. Sometimes it may take form of violence, or at times may just be an attitude or approach. Silence in some situations may also amount to cruelty reference be made to the case of Ravi Kumar v. Julmidevi, (2010) 4 SCC 476.

For considering dissolution of marriage at instance of a spouse who alleges mental cruelty, result of such mental cruelty must be such that it is not possible to continue with matrimonial relationship reference may be taken from the judgment rendered by the Hon’ble Apex Court in the case of Joydeep Majumdar v. Bharti Jaiswal Majumdar, (supra).

Further, the word ‘cruelty’ is used relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted, reference in this regard be made to the judgment rendered by the Hon’ble Apex Court in the case of Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778.

Further, in the case of Manish Tyagi v. Deepak Kumar, (2010) 4 SCC 339 the Hon’ble Apex Court has categorically observed that to constitute ‘cruelty’, it is enough that conduct of one of parties is so abnormal and below accepted norm that another spouse could not reasonable be expected to put up with it. Conduct is no longer required to be so atrociously abominable which would cause reasonable apprehension that it would be harmful of injurious to continue cohabitation with another spouse. Hence, it is not necessary to establish physical violence. Continued ill-treatment, cessation of marital intercourse, studied neglect, indifference may lead to inference of cruelty.

Thus, the word “cruelty” under Section 13(1) (i-a) of the Act has got no static connotation, and therefore, gives a very wide discretion to the Court to apply it liberally and contextually. What is cruelty in one case may not be the same for another and has to be applied from person to person while taking note of the attending circumstances. Harm or injury to health, reputation, the working-career or the like, would-be important considerations in determining whether the conduct of the defending spouse amounts to cruelty. It has to be shown that the defending spouse has treated him with cruelty to cause reasonable apprehension in his/her mind that it will be harmful or injurious to live with the contesting spouse.

Thus, from the aforesaid settled position of law it is evident that “Cruelty” under matrimonial law consists of conduct so grave and weighty as to lead one to the conclusion that one of the spouses cannot reasonably be expected to live with the other spouse. It must be more serious than the ordinary wear and tear of married life.

Cruelty must be of such a type which will satisfy the conscience of the Court that the relationship between the parties has deteriorated to such an extent that it has become impossible for them to live together without mental agony. The cruelty practiced may be in many forms and it must be productive of an apprehension in the mind of the other spouse that it is dangerous to live with the erring party. Simple trivialities which can truly be described as a reasonable wear and tear of married life cannot amount to cruelty. In many marriages each party can, if it so wills, discover many a cause for complaint but such grievances arise mostly from temperamental disharmony. Such disharmony or incompatibility is not cruelty and will not furnish a cause for the dissolution of marriage.

Herein allegations of cruelty have been specifically made by the appellant wherein it has been stated that the differences arose between him and respondent (wife) as the respondent used to go to her parental house frequently without informing the appellant and his family members and used to stay there for 2 to 10 days.

From the record it appears that the appellant has claimed that the respondent was subjecting him with cruelty. But, in his entire evidence the appellant has not disclosed any such specific incident from which it can be even remotely inferred that the conduct of the respondent was so cruel that it has become impossible for the appellant to live with her.

However, in the instant case whatever assertions have been made by the appellant against the respondent are quite non-specific and of quite omnibus in nature and further, the appellant has not been able to prove the same. In his evidence the appellant has not asserted any such act which can be said to be so grave as to enable the appellant for seeking a decree of divorce on the said ground. Further, he has also failed to show that the respondent had committed such cruelty upon the appellant which has made it impossible for the appellant to live with the respondent.

As regards the filing of a case by the respondent under Section 498 A of the Indian Penal Code is concerned, mere seeking a legal remedy by the wife against her husband can't be termed as cruelty unless it is proved that the said proceeding was launched maliciously without any reality.

Thus, on the basis of the pleading and evidence on the record, this Court is of the view that the ground of cruelty has not been substantiated by the appellant and further it has also not been proved that the extent of cruelty is so much that it appears absolutely not possible and safe for the appellant-husband to live together with respondent-wife and continue with their married life.

Thus, on the basis of the discussion made hereinabove this Court is of the view that the appellant has failed to substantiate the commission of alleged cruelty of respondent upon him and since the learned Family Court while negating the claim of cruelty has duly appreciated the evidences brought on record, therefore the finding of the learned Court on the alleged act of cruelty, is not perverse.

So far desertion is concerned it needs to refer herein that the word ‘desertion’ has been given in Explanation to Section 13 (1) wherein it has been stated that “the expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”

It is pertinent to note that the word ‘desertion’, as has been defined in Explanation part of Section 13 of the Act, 1955, means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wishes of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.

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:

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:

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 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.

It is, thus, evident from the aforesaid reference of meaning of desertion that the quality of permanence is one of the essential elements which differentiate desertion from willful 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.

Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to from the necessary intention aforesaid.

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 the Court.

The law consistently has been 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.

Here in this case, it has been stated by the appellant that the respondent herself left her matrimonial house but so far as not-living of the respondent in the appellant’s house is concerned, from the evidence of the witnesses it appears that respondent- wife has lodged criminal case u/s 498A I.P.C., 3/4 D.P. Act and 125 Cr.P.C which suggests that everything was not going on smoothly between the parties and respondent willfully and without any reasonable excuse has not deserted the appellant, there must be some strong reason behind this. This fact alone is sufficient to demolish the entire plea of appellant.

The appellant has tried to make out a case that the respondent on her own free will has left her matrimonial house but it is the case of respondent, that she had never left her matrimonial home at her own will rather it was the appellant and his family members who were always subjecting the respondent with cruelty for the fulfillment of their illegal demand of dowry, for which the respondent has already filed cases against the appellant.

From the impugned order as well as material available on record, it is evident that admittedly the parties are living separately from one another and it has come on record from the oral as well as the documentary evidence of the parties also but the appellant has not shown anywhere in his entire evidence that he had ever tried to bring his wife back.

Here in this case, it has been stated by the appellant himself in his petition and in his evidence that respondent left the matrimonial home on 20.07.2021. This case has been filed on 18.11.2021, so, the statutory requirement of Sec.13(1) (ib) of Hindu Marriage Act, 1955 for desertion to be a ground of divorce is not satisfied and appellant is not entitled to get his marriage dissolved on the ground of desertion.

Thus, from the aforesaid it appears that respondent wife was compelled to leave her matrimonial house and she has not left her matrimonial house on her own free will therefore, it is considered view of this Court that finding of the learned Family Court on the issue of desertion requires no interference.

The appellant has alleged that the respondent did not allow him to establish physical relations since their marriage, resulting in her inability to conceive. However, as the respondent was undergoing medical treatment for this issue, the allegation appears false and indicates that the appellant is attempting to rid himself of her by making baseless claims. Moreover, the respondent herself stated that her husband continued to have physical relations with her until she left her matrimonial home and even thereafter, she tried to maintain such relations with him.

It has further been stated that the respondent/wife is always ready and willing to live and start her conjugal life with her husband (appellant) as earlier, but it is the appellant himself who has deserted his wife.

This Court, based upon the aforesaid discussions is of considered view that the issue of cruelty and desertion as has been alleged by the appellant-husband against his wife could not be proved because no cogent evidence to that effect has been produced by the appellant and, as such, this Court has no reason to take different view that has been taken by the learned Family Court observing that the petitioner has not been able to prove the willful desertion by the respondent wife and neither prove that respondent subjected him with cruelty to the extent required by law.

On the perusal of the impugned judgment, it is considered view of this court that learned Family Court after due deliberation of factual aspect as well as evidence led by both the parties has recorded its finding, therefore, the contention of learned counsel for the appellant that impugned judgment is suffering from perversity, is not fit to be accepted, hence rejected.

This Court, on the basis of discussions made hereinabove, is of the view that the judgment dated 01.08.2024 and Decree signed on 08.08.2024 passed by the learned Principal Judge, Family Court, Ranchi, whereby and whereunder the Original Suit No.699 of 2021 filed by the appellant-husband under Section 13(i-a), (i-b) of the Hindu Marriage Act, 1955 for a decree of divorce has been dismissed, requires no interference by this Court.

Accordingly, the instant appeal fails and is dismissed.

Pending interlocutory application, if any, also stands disposed of.