Mithilesh Kumar vs Rita Devi

Per Sujit Narayan Prasad, J.

The instant appeal under Section 19(1) of the Family Court Act, 1984 is directed against the order/judgment dated 19.03.2025 passed by the learned Additional Principal Judge, Additional Family Court-I, Ranchi in Original Suit No. 270 of 2019, whereby and whereunder, the petition filed under Section 13(1) (1-A) (ii) of the Hindu Marriage Act by the appellant/appellant seeking a decree of divorce against his wife, has been dismissed.

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

The learned Family Judge has called upon the respondent-wife. The wife has filed written statement and altogether five issues had been framed which are as follows:

The evidences have been laid on behalf of both the parties. Thereafter, the judgment has been passed dismissing the suit by holding that the petitioner/appellant (appellant herein) has not been able to prove his case against the respondent even to the extent of preponderance of probabilities.

Mr. Anurag Kashyap, learned counsel has contended on behalf of the appellant/petitioner that the factual aspect which was available before the learned Family Judge supported by the evidences adduced on behalf of the appellant/petitioner has not properly been considered and as such, the judgment impugned is perverse, hence, not sustainable in the eyes of law.

It has been submitted that the appellant himself filed an application under Section 9 of the Hindu Marriage Act which was allowed ex-parte and after passing of the decree of conjugal rights, the respondent has been living separately since the year 2017 which itself shows that the respondent has deserted the appellant for a long period and the same has not been taken into consideration in right perspective by the learned Family Court.

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

Per contra, Mr. Sanjay Prasad, learned counsel for the respondent-wife, while defending the impugned judgment, has submitted that there is no error in the impugned judgement. The learned Family Judge has considered the issue of restitution of conjugal rights and desertion and having come to the conclusion that no evidence has been adduced to establish either desertion, has dismissed the petition.

It has been submitted that the respondent was subjected to matrimonial cruelty at the hands of the appellant and his family members for demand of dowry, hence, she filed a criminal case u/s 498A along with other sections.

It has further been submitted that after the compromise taken place in between the parties at Mediation Centre at JHALSA in ABA No.708/2014 arising out of C.P. Case No.1205 of 2013, both the parties lived together but, the respondent was tortured and thrown out of the matrimonial house along with the minor children, thereafter, she filed a maintenance case which was allowed.

So far as the decree of conjugal rights is concerned, it has been submitted that the appellant had filed the said case and the same was disposed of ex-parte by suppressing the fact of settlement in between the parties in C.P. Case No.1205 of 2013.

It has been further submitted that the respondent is willing to live together with the appellant but it is due to compelling circumstances that she has to live separately.

Learned counsel, based upon the aforesaid ground, has submitted that if on that pretext, the factum of desertion has not been found to be established, based upon which the decree of divorce has been refused to be granted, the impugned judgment cannot be said to suffer from error.

This Court has heard the learned counsel for the parties and gone through the finding recorded by the learned Family Judge in the impugned judgment.

The case has been heard at length. The admitted fact herein is that the suit for divorce has been filed mainly on the ground of desertion in respect of the fact that the respondent has chosen not to live together with the appellant even after passing of the decree of conjugal rights, i.e., by filing an application under Section 13(1)(1-A)(ii) of the Hindu Marriage Act, 1955.

It is evident from the factual aspect that the appellant/petitioner had a motion by filing a petition under Section 13(1)(1-A)(ii) of the Hindu Marriage Act, 1955 for decree of divorce on the background of the fact, as has been pleading in the suit, that after solemnization of the marriage in between the parties on 11.05.1995, they have been living together and out of their wedlock two male children took birth.

It has been pleaded that since 2013 because of persuasion of her parents, respondent started pressurizing the appellant to settle with her retired old parents at Bhuli, Dhanbad which was not agreeable to the appellant. It has further been pleaded that on 13.04.2013 all of a sudden, the respondent left Ranchi along with the children and went to her parental house at Bhuli, but at the instance of parents of respondent, she never agreed to come to Ranchi, rather she insisted the appellant to get herself settled at Bhuli alongwith their children and insisted the appellant to provide all the amenities.

It has further been pleaded that the appellant filed a petition before the Principal Judge, Family Court, Ranchi u/s 9 of Hindu marriage Act for restitution of conjugal rights being M.T.S. No. 197/13 which has been allowed ex-parte on 11.11.2016. Thereafter, the appellant in the month of September 2013 came to know that respondent has filed one complaint case being case no. 1205/13 before the Court of Ld. C.J.M., Dhanbad against the appellant u/s 498A, 323, 506 of IPC.

Thereafter, through the Mediation Centre at JHALSA, Ranchi is connection with A.B.A. 708/2014 both the parties agreed to live together along with their children at Ranchi but again the respondent has taken ‘U’ turn and started putting several conditions.

It is the case of the appellant that because of the best effort made by appellant and his well-wishers as per the terms of compromise the respondent and the younger son namely Rohit Kumar were brought to Ranchi and appellant re-admitted his son in a School at Ranchi after payment of more than Rs.10,000/- as admission fee and other miscellaneous expenses and due to non-cooperative and argument attitude of respondent, the appellant and his two minor children have been facing odd and adverse situation.

It has been pleaded that when the mother of appellant died, he went to ask the respondent to attend her funeral by coming to his native village along with the children, but instead of going there she again came to her father 's house along with their school going son and since the matter was pending before the learned court in which respondent has appeared and the matter has been compromised/settled hence, there was no occasion for the appellant to pursue and file show cause in M.P. Case no. 104/2014 and respondent agreed to withdraw all the cases filed by her and she started living with appellant at Ranchi.

It has been pleaded that on the one hand the respondent has stayed with appellant after mediation and has agreed to withdraw all the cases filed by her but on the other hand, she was pursuing M.P. case no. 104/2014.

It has been pleaded further that in spite of all the efforts made by appellant and his well-wishers she has not come to appellant and decided to live at her parental house for no reason and the respondent has deserted the appellant without reasonable cause and without consent and against the wish.

Written statement was filed by the respondent/wife wherein all allegation has been refuted and accordingly, issues have been framed wherein primarily issue nos.3 and 4 pertains to whether the restitution of conjugal rights as between the parties was made after passing of a decree for restitution of conjugal rights and on the ground of desertion whether petitioner entitled for divorced, respectively.

The evidence has been led on behalf of both the parties. For ready reference, the evidence led on behalf of the appellant/petitioner is being referred as under:

The respondent-wife has also been examined as D.W.-1. For ready reference, her evidence is being referred as under:

The learned Family Judge after assessing 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 appellant has not been able to prove the case against the respondent even to the extent of preponderance of probabilities and accordingly dismissed the said suit against which the present appeal has been filed.

The learned counsel for the appellant/petitioner has argued that the evidence put forth before the learned Family Court has not properly been considered and as such, the judgment suffers from perversity, hence, not sustainable in the eyes of law.

While on the other hand, argument has been advanced on behalf of the respondent has submitted that the judgment is well considered one and merely by committing fraud, the suit for divorce has been filed.

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 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 any order said to be perverse 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.

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.

It needs to refer herein that since appellate jurisdiction has been invoked herein, therefore, before entering into merit of the case, at this juncture it would be purposeful to discuss the appellate jurisdiction of the High Court.

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 like this.

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.

Since this Court is 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 is an admitted position that the appellant has preferred the suit for dissolution of marriage under Section 13(1-A) (ii) of the Hindu Marriage Act, 1955, asserting that the decree for restitution of conjugal rights, passed earlier, has not complied with by the respondent-wife.

In order to appreciate the aforesaid ground, it would be apt to refer herein the Section 13(1-A) (ii) of the Hindu Marriage Act, 1955:

Thus, from the aforesaid it is evident that Section 13(1-A)(ii) of the Hindu Marriage Act, 1955 confers an independent right upon either spouse to seek dissolution of marriage by a decree of divorce where, despite the passing of a decree for restitution of conjugal rights, there has been no resumption of cohabitation between the parties for a continuous period of one year or more thereafter. The legislative intent behind the provision is that when a decree for restitution of conjugal rights fails to achieve its object of restoring matrimonial harmony and the parties continue to live separately even after the decree, the marriage may be treated as having irretrievably broken down in substance. The continued non-restoration of conjugal relations for the statutory period constitutes a valid ground for seeking divorce, irrespective of which party had initially obtained the decree for restitution of conjugal rights.

Thus, Section 13 (1A) (ii) of the Act 1955, provides that in case there is no restitution of conjugal rights despite a Decree under section 9 of Act 1955 for a period of one year, either party can seek dissolution of marriage.

In the backdrop of the aforesaid factual and legal circumstances, this Court has carefully examined the impugned judgment and decree passed by the learned Family Court in order to ascertain whether the findings recorded therein suffer from perversity, arbitrariness, or any patent illegality warranting interference in the exercise of appellate jurisdiction.

Admittedly, the respondent is the legally wedded wife of the appellant, and their marriage was solemnized on 11.05.1995 at Jehanabad, Bihar, in accordance with Hindu rites and customs. It is also an admitted position that out of the said wedlock, two sons were born, both of whom are presently residing with the respondent-mother.

The evidence adduced by the respective parties reveals that the appellant had instituted a petition under Section 9 of the Hindu Marriage Act, 1955, being M.T.S. No. 197 of 2013, before the Family Court at Ranchi, seeking restitution of conjugal rights. The said proceeding ultimately culminated in an ex parte decree in favour of the appellant on 11.11.2016.

The records further disclose that the respondent-wife had instituted Complaint Case No. 1205 of 2013 under Section 498A of the Indian Penal Code and allied provisions against the appellant. In connection therewith, the appellant had preferred A.B.A. No. 708 of 2014 before this Court seeking anticipatory bail. During the pendency of the said proceeding, the dispute between the parties was referred to the Mediation Centre, JHALSA, where an amicable settlement was arrived at and both parties agreed to resume cohabitation along with their children. It is the case of the appellant that only after considerable persuasion by him and his family members, the respondent, along with their younger son, came to Ranchi, whereupon he secured the admission of the child in a school.

It is the further case of the appellant that, during the aforesaid period, his mother passed away at their native village. The appellant proceeded to attend her funeral rites and requested the respondent to accompany him with their children. However, instead of attending the funeral of her mother-in-law, the respondent allegedly left for her parental home along with the children without informing the appellant.

Per contra, the respondent has asserted that the settlement before the Mediation Centre, JHALSA, was entered into by the appellant only with a view to securing anticipatory bail and that, after she returned to her matrimonial home pursuant thereto, she was once again subjected to torture and humiliation. According to her, being left with no alternative, she returned to her parental home along with her minor children and, with the assistance of her aged retired father, pursued Maintenance Petition No.104 of 2014 under Section 125 Cr.P.C. before the Principal Judge, Family Court, Dhanbad. The said proceeding was allowed vide order dated 10.06.2016, whereby the appellant was directed to pay maintenance of Rs.6,000/- per month to the respondent and their children.

It is evident from record that the appellant had challenged the order passed in the maintenance proceeding by filing Criminal Revision No. 1043 of 2016 before this Court, which came to be dismissed on 01.07.2020 and only after dismissal of the said revision petition, the appellant commenced payment of maintenance to the respondent and the children. Thus, from the aforesaid factual aspect it is apparent that such conduct reflects the appellant's lack of concern towards the maintenance and educational needs of his wife and children.

It is evident from record that although M.T.S. No. 197 of 2013 was decreed ex-parte on 11.11.2016, the suit before the learned Family Court for dissolution of marriage had been instituted by the appellant on 29.04.2019, i.e., after a lapse of more than two and a half years from the date of the decree.

Further it is evident from the impugned judgment that the learned Family Court has also noted the aforesaid factual aspect while passing the impugned judgment and has observed that no material was brought on record by the appellant to demonstrate that he had taken any steps whatsoever to execute or enforce the decree for restitution of conjugal rights with a bona fide intention of restoring matrimonial cohabitation with the respondent.

It needs to refer herein that the judgment rendered in M.T.S. No. 197 of 2013 does not reflect any disclosure by the appellant regarding the settlement arrived at before the Mediation Centre, JHALSA, or the fact that the parties had resided together for a certain period during the pendency of the said proceeding.

On the other hand, the respondent, in her oral testimony before the learned Family Court, categorically asserted that she had no knowledge of the ex parte judgment and decree passed in M.T.S. No. 197 of 2013.

The learned family Court has taken into consideration the aforesaid factual aspect also and has observed that there was no material on record to establish that the respondent had ever been made aware of the said decree, nor had the appellant produced any documentary evidence to prove such knowledge on her part.

Further from the impugned judgment it is evident that the respondent, in clear and unequivocal terms, stated in her deposition that she is willing to reside with the appellant.

The aforesaid factual aspect led the learned Family Court, to drew an inference that the respondent's separate residence was neither deliberate nor motivated by an intention to permanently terminate cohabitation. Rather, such separation was held to be a consequence of compelling circumstances arising out of prolonged matrimonial discord and continuous litigation between the parties, which had rendered their relationship strained and non-cordial.

It is evident from perusal of the impugned judgment that the learned Family Court based upon the aforesaid circumstances has concluded that the appellant (petitioner therein) failed to adduce any cogent and trustworthy evidence to establish that the respondent-wife, despite having knowledge of the judgment and decree passed in M.T.S. No. 197 of 2013, had wilfully refused to resume matrimonial life with him. In the absence of any such evidence, the allegation that the respondent had deliberately declined to comply with the decree for restitution of conjugal rights was held to be unsubstantiated.

Thus, based upon the discussion made hereinabove, this Court, is of the considered view, that the appellant has not adduced any cogent and reliable evidence that the respondent-wife had not resumed her conjugal life with the appellant despite knowing about the judgement and decree passed in M.T.S. No. 197/2013.

Further, in the facts of the present case, although the factum of separation between the parties stands established, the appellant has failed to prove that the respondent had the requisite intention to bring matrimonial cohabitation permanently to an end. The evidence available on record does not disclose the existence of animus deserendi on the part of the respondent. Rather, the materials on record, including her categorical assertion expressing willingness to reside with the appellant, indicate that her separate residence was not driven by an intention to forsake the marital relationship permanently, but was a consequence of the prevailing circumstances. As such, one of the essential ingredients constituting desertion remains unproved, and the plea of desertion advanced by the appellant cannot be said to have been established in accordance with law.

This Court, based upon the aforesaid discussion, is of the view that the appellant/petitioner has failed to establish the element of perversity in the impugned judgment as per the discussion made hereinabove, as such, the instant appeal deserves to be dismissed.

Accordingly, the instant appeal fails and is dismissed.

Pending interlocutory application(s), if any, also stands disposed of.