2025:JHHC:32392-DB IN THE HIGH COURT OF JHARKHAND AT RANCHI First Appeal No.11 of 2024 ----- Kunal Kishor Shastri, aged about 42 years, son of Late Rajeshwar Prasad Shastri, resident of Village + P.O. -Pakri, P.S.- Ara Nawada District- Bhojpur, State-Bihar, Pin code-802301 .......… Appellant/Petitioner Versus Sarita Devi W/O Kunal Kishor Shastri, D/O Ramdhani Pandit, resident of Village P.O.-Chorsua, P.S. Giriyak, District- Nalanda, State-Bihar, Present Address of parents- At.Q.No.C/1-4, Guest House, P.O.+P.S.- Saraikella, Distt. - Saraikella-Kharsawan, Jharkhand . … … Opp. Party/Respondent ------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE ARUN KUMAR RAI ------- For the Appellant : Mr. Akhilesh Prasad, Advocate For the Respondent : -------------- ------ Order No.05/Dated:17th October, 2025 Per Sujit Narayan Prasad, J. The instant appeal under section 19(1) of the Family Courts Act, 1984 is directed against the judgment dated 20.10.2023 and the decree dated 30.10.2023 passed in Original Suit No.32 of 2020 by the learned Principal Judge, Family Court, Seraikella-Kharsawan (in short, Family Judge) whereby and whereunder the petition filed under section 13 of the Hindu Marriage Act, 1955 by the appellant-husband against the respondent-wife has been dismissed on contest . 2. The brief facts of the case as pleaded in the plaint having been recorded by the learned Family Judge, needs to be referred herein as: (i) This Suit was originally filed before the Family Judge, Bhojpur, Ara bearing Matrimonial Case No. 292 of 2017 and by the order of the Hon’ble Supreme Court passed in Transfer Petition (Civil) No. 885 2025:JHHC:32392-DB 2 of 2019 dated 29.05.2020 the case has been transferred to the Court of Principal Judge, Family Court, Seraikella-Kharsawan where the respondent-wife appeared on 13.04.2022. (ii) It has been pleaded in the plaint that the marriage between the petitioner and the respondent was solemnized on 15.05.2011 at Patna, the respondent went to her matrimonial home and started living there and from the wedlock one son begotten on 15.08.2012, namely, Golu who is being maintained by the petitioner by mentioning his name in his service book also. (iii) It is pleaded that the petitioner used to work in Prasar Bharti at Tripura and kept the respondent there and after transfer where he went with the family and got the name of his son admitted in a good school but on 12.09.2014 on the pretext to see her mother on account of her illness, respondent went Bokaro by taking all her ornaments and belongings and did not return for a considerable period and by taking assistance of Mahila P.S. Bokaro after mediation he managed to bring his wife back in the month of March 2015 at Guwahati where the petitioner was working at that time. But she always remained adamant to behave with cruelty with the petitioner and always used to make quarrel for living with her parents and finally on 06.06.2016 she again went to Seraikella without informing to the petitioner along with the child. (iv) It is pleaded that at present father of the respondent after transfer is residing at Seraikella and it was told that since her father is in government job and the respondent also doing job and as such she does not want to come with him and when on 24.08.2016 he 2025:JHHC:32392-DB 3 attempted to bring his wife, she refused to come with him and now the relationship between husband and wife has come to an end. (v) It is pleaded that his wife has deserted him and even the parents of the respondent on being contacted, they also refused to send their daughter with him. 3. On the aforesaid ground of cruelty and desertion, the appellant- husband has prayed for a decree of dissolution of the marriage between him and the respondent-wife. 4. After issuance of notice, the respondent-wife has appeared in the suit and filed her written statement on 20.07.2022 denying the allegations as levelled in the plaint against her. 5. In the written statement, the factum of marriage between the parties is accepted. 6. It is alleged in the written statement that since beginning the nature of the petitioner was adverse towards respondent and she could hardly live in her matrimonial home at Ara for 15 days. 7. It is alleged that demand of a four wheeler and other household articles was made by the petitioner-husband and his family members and during the period she was made captive in a small room and on 28.05.2011 she was forcefully sent to Bokaro and left there for 6 months and after making several requests she was taken to Tripura Office on 11.11.2011 where she was forced to live in the office and to sleep on the bench of the office and demand was persisted again and even in stage of her pregnancy she was subjected to several atrocities. 8. 8. It is alleged that at the time of delivery she was brought on 07.06.2012 at Ara but she was not accepted there by the family members 2025:JHHC:32392-DB 4 of the petitioner-husband and they refused to get her delivery there and ultimately by calling her father she was compelled to come to Bokaro on 11.06.2011 where she gave birth a male child in the private hospital on 15.08.2012 which costed Rs. 40,000/- but not a single penny was paid by the petitioner. 9. It has further been stated that for six month her husband or his family members did not come to see her and child but on several requests, petitioner send his brother who on 23.10.2012 brought her back to the matrimonial house but at that place again she was subjected to several atrocities for demand of dowry and was again sent back to her maike by calling her father on 30.10.2012. 10. It is further alleged that she was brutally assaulted when she went to Guwahati office of petitioner which caused injury on her nose and petitioner tried his best to declare her a lady of unsound mind and she on the same date was returned to Bokaro. It has further been alleged that she again visited Guwahati but similar situation continued and she filed a complaint before Dispur P.S. where the petitioner gave in writing and compromised the matter but just after coming from the police station, he became angry and on the next date he sent the respondent to Bokaro with her maternal uncle. 11. It is also alleged that on the written statement of the respondent, the petitioner was warned from the office by issuing two office memos to keep the respondent properly and again a written compromise letter was executed and the respondent was taken to Bhojpur from where after 10 days she was taken to Guwahati and there again she was brutally assaulted 2025:JHHC:32392-DB 5 and treated like animal which compelled her to file a petition before Dispur P.S. on 10.01.2016 which was registered as a case u/s 498A IPC. 12. It is alleged that it is the petitioner who does not want to keep the respondent and has never contacted for taking her to his house. It has further been stated that in a maintenance case being No. 37 of 2016 an order was passed on 22.05.2018 to deduct 30% from his salary but the petitioner by filing appeal get this order revised and the direction of High Court to pay arrears 2,00,000/- has also has not been paid till date and the maintenance amount is also not being paid. 13. The learned Family Judge, after institution of the said case, taking into consideration of the pleadings of the parties has formulated the issues and has decided the lis by refusing to grant divorce to the petitioner/appellant. 14. The aforesaid judgment by which divorce has not been granted is under challenge by filing the instant appeal. Submission of behalf of the appellant-husband: 15. Mr. Akhilesh Prasad, the learned counsel appearing for the appellant-husband has taken the following grounds: (i) There is an error in the impugned judgment, since, each and every aspect of the matter has not been taken into consideration based upon the documentary evidences as well as ocular evidences and, as such, the same is perverse and fit to be quashed. (ii) The element of cruelty and desertion has been found to be there if the evidences adduced on behalf of the appellant-husband will be taken in to consideration but without properly appreciating the same the learned Family Judge has come to the finding by 2025:JHHC:32392-DB 6 holding that no element either of cruelty or desertion is there and, as such, the impugned judgment and decree suffer from an error. (iii) It has been contended that the appellant-husband has been meted out with the cruelty as also the respondent-wife is living separately and, as such, both the grounds are available as would be evident from the evidence adduced on behalf of the appellant- husband, but the same has not been taken into consideration by the learned Family Judge. (iv) It has been contended that the learned Family Judge has failed to consider that the respondent always quarreled with the appellant and never gave comfort of marriage to the appellant and she had also given threatening to implicate him and his family members in a false dowry case. 16. The learned counsel, based upon the aforesaid ground, has submitted that the impugned judgment and decree, therefore, needs interference said to be perverse. Analysis: 17. It needs to mention herein that vide order dated 11.07.2024 notices were issued to the respondent-wife by a co-ordinate Bench of this Court which has been received by the respondent-wife herself as per the report of process-server but she did not appear in the present proceeding and the instant appeal was admitted as also the trial Court records was called for vide order dated 12.11.2024 passed by a co-ordinate Bench of this Court. 18. Since the appeal has been admitted but there is no appearance of the respondent-wife, therefore, this Court is to consider the material 2025:JHHC:32392-DB 7 available on record as per the stand taken by the respondent-wife in her written statement supported by the evidence adduced on her behalf coupled with the question as has been put on her behalf during cross- examination. 19. We have heard the learned counsel appearing for the appellant, gone through the trial Court records, the impugned judgment, as also the testimonies of the witnesses and the documents exhibited therein. 20. The learned Family Judge has formulated altogether five issues, for ready reference the same are being quoted hereinbelow: (1) Whether the suit is maintainable in its present form? (2) Whether the petitioner has got valid cause of action for the suit? (3) Whether the petitioner is entitled for a decree of divorce u/s 13(1) (ia) of the Hindu Marriage Act, 1955? (4) Whether the petitioner is deserted by the respondent and both the petitioner and the respondent are living separately since 2016? (5) Whether the petitioner is entitled for any other relief? 21. The issue pertaining to ground for divorce is by formulating a specific issue whether the petitioner is entitled for a decree of divorce u/s 13(1) (ia) of the Hindu Marriage Act, 1955 and whether the petitioner is deserted by the respondent and both the petitioner and the respondent are living separately since 2016 as issue no.3 and 4, respectively. 22. But first of all, the learned Family Judge has taken into consideration the issue no.(3), i.e., whether the petitioner is entitled for a decree of divorce u/s 13(1) (ia) of the Hindu Marriage Act, 1955. The learned Family Judge has considered the evidence adduced on behalf of the parties for deciding the issues involved in Original Suit No.32 of 2020. 2025:JHHC:32392-DB 8 23. This Court in order to appreciate the aforesaid rival submission before entering into the legality and propriety of the impugned judgment needs to discuss herein the relevant part of the evidences adduced on behalf of the appellant wherein the element of cruelty and desertion has been shown by the petitioner-husband. 24. During the trial, two witnesses have been examined on behalf of the appellant-husband, who himself has been examined as P.W.1 and produced photocopy of information supplied under the R.T.I. regarding monthly remuneration of respondent which been exhibited as Ext.1 without objection. Brother of the petitioner/husband, namely, Shatish Kumar has been examined as P.W.2. 25. The respondent-wife has also examined two witnesses in support of her contention including herself as D.W.1 and also produced the following documents which have been exhibited during trial: (i) Ext. A to A/4 – Photocopy of counter-foil of amount given in account of Rajeshwar Prasad Shashtri of SBI – without objection. (ii) Ext. B- Photocopy of prescription of doctor along with report in four pages- without objection. (iii) Ext.C – Photocopy of compromise letter before O.C before Dispur P.S dated 09.09.2014 in two sheets – without objection. (iv) Ext. D and D/1 – Two memorandums issued by office of the petitioner vide Letter No.5340 dated 11.09.2014 and letter no.3496 dated 24.09.2014 – without objection. (v) Ext.E to E/2 - Three copies of cheque given by the petitioner in the name of respondent – without objection. 2025:JHHC:32392-DB 9 (vi) Ext. F – Written complaint for FIR before O.C Dispur P.S for making allegation of theft by the petition er against the respondent- without objection. 26. In his evidence, the appellant-husband has narrated the entire facts as pleaded in his plaint. He has stated in his examination-in-chief on oath that his marriage was solemnized with the respondent on 15.05.2011 as per Hindu rites and custom at Patna and thereafter they lived together as husband and wife and out of the said wedlock a son, namely, Kislay Kumar Sharstri @ Golu was born on 15.08.2012. 27. It is stated that the petitioner-husband took the respondent to his work place at Tripura and thereafter on transfer brought her to new place of posting at Guwahati. It has been stated that on 12.09.2014 on the pretext to see her mother on account of her illness, the respondent wife went to Bokaro by taking all her ornaments and belongings and did not return for a considerable period. Thereafter, by taking assistance of Mahila P.S, Bokaro he managed to bring his wife back in the month of March, 2015 at Guwahati but she always remained adamant to behave with cruelty with him and always used to make quarrel for living with her parents. Finally, on 06.06.2016 she again went to Seraikella at her maike without informing to the petitioner along with the child. 28. It is stated that since the respondent is doing the job at Seraikella, as such, she did not want to come back to the petitioner and on 24.08.2016 when he attempted to bring back the respondent she refused to come with him to his workplace. 2025:JHHC:32392-DB 10 29. It is stated that on 02.07.2017 the respondent told over phone to the petitioner that she does not want to live with him and being compelled, he has no option but to file a suit for dissolution of his marriage. 30. P.W.2 is the younger brother of the petitioner-husband and he has stated the similar facts as stated by the petitioner in his examination- in-chief. At para-20 he has stated that in the year 2015, he along with his brother went to bring the respondent by giving information to the Mahila P.S, then the respondent came, but again she went in 2016 and never returned thereafter. 31. The respondent herself has examined on oath as D.W.1 and narrated the entire things. At para-4 and 5 of the deposition she has stated that she was assaulted and tortured by her husband and in-laws due to demand of dowry and when the information was given to her husband about the birth of son, he stopped to talk with her. She has stated at paragraph 6 that after birth of the child her husband never visited to see her or his son. At para-7 she has stated that her husband for demand of dowry has assaulted her physically due to which her nose bone was fractured and wanted to declare her insane. At para-8 she has narrated the torture meted out to her at the hands of the petitioner at Guwahati. At para- 9 she has stated that on complaint being made in the office of the petitioner, the same has also been taken note of and gave warning to the petitioner by issuing memorandum. At para-12, she has stated that when she lodged a criminal case against the petitioner, he got angry and stopped to give money for their maintenance and even stopped paying school bus fares of his son and when she asked for money he used to assault her physically. 2025:JHHC:32392-DB 11 In cross-examination, she has again repeated the entire facts by saying that she was subjected to torture by assault to the extent by attempting taking her life for demand of dowry by her husband and even after compromise in police station the behaviour of the petitioner has not changed. At para-23 of her cross-examination, she has stated that the arrears amount of maintenance has not yet been paid by the petitioner. She has further stated that a false case of theft was field by the petitioner against her after compromise made in Dispur police station. 32. D.W.2, who is the father of the respondent, has corroborated the entire facts during deposition on oath and in cross-examination he has fairly admitted that all the facts of torture, physically and mentally, were narrated by his daughter and when she was informed that respondent is serious, he brought her with him. He has further stated that again he sent his daughter with his brother-in-law to Guwahati but at that time also she was resisted to enter into the rented house but anyhow it was managed on the assurance of landlord but in the night the petitioner attempted to press her neck and his brother-in-law managed to save her and thereafter a complaint was filed in Dispur P.S. and for the reason of instituting the criminal case, the appellant-husband was again forced her to leave the work place. 33. The learned Family Judge has appreciated the entire evidence as well as the documents exhibited on behalf of both the parties and has come to the conclusion that the appellant-husband has failed to make the ground either cruelty or desertion and, as such, has dismissed the suit which is under challenge in the instant appeal. 2025:JHHC:32392-DB 12 34. The fact about filing of suit on the ground of cruelty and desertion is admitted one as per the evidences adduced on behalf of the appellant. He has tried to establish the element of cruelty and desertion upon him at the hands of the respondent-wife. 35. The appellant-husband all along has alleged the issue of cruelty and desertion which he was subjecting to by the respondent-wife and in order to establish the same the evidences has been laid as has been referred hereinabove. 36. This Court while appreciating the argument advanced on behalf of the appellant 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. 37. 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 2025:JHHC:32392-DB 13 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. “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.) 2025:JHHC:32392-DB 14 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.” 38. In the instant case, the ground for divorce has been taken on the ground of cruelty and desertion. 39. This Court after considering the argument advanced on behalf of the appellant-husband needs to consider the issue no.1 which pertains to the ground of cruelty. 40. 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. 41. 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 appellant-husband and his parents demanded dowry. The Hon’ble Apex Court emphasized that “cruelty” can have no fixed definition. 42. 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. 2025:JHHC:32392-DB 15 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.” 43. 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.” 44. 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. 45. 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”. 46. 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. 2025:JHHC:32392-DB 16 These allegations, given the context of an educated Indian woman, were held to constitute “cruelty” itself. 47. It requires to refer herein that the Hon’ble Apex Court in Joydeep Majumdar v. Bharti Jaiswal Majumdar, (2021) 3 SCC 742, has observed 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. 48. Since the ground of desertion has also been taken as a ground by the petitioner husband for dissolution of marriage as such at this juncture, it would be apt to refer the definition of desertion 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. 49. 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.” 2025:JHHC:32392-DB 17 50. 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. 51. Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, ‘the home’. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion. 52. 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. 2025:JHHC:32392-DB 18 53. 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. 54. 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. 55. 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 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 2025:JHHC:32392-DB 19 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.” 56. This Court, on the premise of the interpretation of the word “cruelty” and “desertion” has considered the evidences of the witnesses as has been incorporated by the learned trial Court in the impugned judgment. 57. It is evident from the interpretation of the word cruelty that the same is to be considered on different parameters depending upon the material, if available on record. 58. The appellant-husband although has taken the ground of cruelty meted to him by his wife but, in course of trial he has failed to establish the element of cruelty meted out to him at the hands of the respondent-wife as discussed hereinabove. 59. The desertion while, on the other hand, has been defined that if either of the parties on its own has left the house without any compulsion or coercion, then only such type of separation will come under the fold of desertion. But what we have seen from the evidence of the appellant and the witnesses adduced on his behalf during the trial that the appellant has 2025:JHHC:32392-DB 20 committed cruelty upon the respondent-wife by demanding dowry as also by beating her in brutal manner and, as such, she was forced to leave the house due to mental and physical torture. 60. This Court after discussing the aforesaid factual aspect along with the legal position and adverting to the consideration made by the learned Family Judge in the impugned judgment has found therefrom that the issue of element of cruelty and desertion has well been considered by the learned Family Judge. 61. On consideration of the evidence, the learned Family Judge has come to conclusion that the appellant-husband has miserably failed to establish the ground of cruelty and desertion against the respondent-wife, rather it is the appellant-husband, who himself has committed cruelty upon the respondent and forced her to leave him. 62. It is evident from the evidence as recorded that the respondent- wife, initially, in the written statement has denied the element of desertion rather, it has been brought on record in her evidence that it is due to the torture casted upon her by the appellant-husband, she was forced to leave the matrimonial house. 63. The appellant-husband has failed to bring on record any evidence which clarifies that it is the respondent-wife who herself has left the matrimonial house. However, the learned trial Court has not gone into the aforesaid fact rather, the learned trial Court has gone into the issue of time period i.e. two years from date of pleaded desertion as stipulated in Section 13(i) (ib) of the Hindu Marriage Act, 1955. 64. It has been considered by the learned trial Court that plea of desertion has been taken from 06.06.2016 the day when the respondent- 2025:JHHC:32392-DB 21 wife has said to leave the house of the appellant-husband and deserted him but the suit has been filed on 09.08.2017 which is within the period of two years of pleaded desertion. The learned trial Court after taking into consideration the aforesaid period has refused to accept the availability of ground of desertion. 65. This Court coupled with the fact that the appellant-husband has failed to bring any material on record as also that the respondent-wife herself has left out the house of the petitioner including the ground that the suit has been filed within the period of two years and, as such, if on that pretext the learned trial Court has taken a ground that the plea of desertion is not available to be agitated within a period of two years from the date of cause of action, i.e, the ground of desertion which has been taken to be 06.06.2016 and the aforesaid reason has led the learned Family Judge to dismiss the suit. For ready reference, the relevant paragraphs of the impugned judgment are being quoted hereunder as: “16. From the analysis of evidence discussed above I find that the plaintiff has to stand on his own legs to prove and establish the three main facts as stated above in the ambit of cruelty for getting relief for divorce as available u/s 13 of the H.M.A. and more fully under Section 13(1) (ia) of the Act. Para 4 of the plaint contains the summary of allegations of torture by leaving the matrimonial house on the pretext to see her ailing mother, always has the tendency to live with her parents and making dispute on petty matters and finally on 06.06.16 she left for Seraikella. No independent witness has been produced by the petitioner regarding any cruel behaviour of the respondent either from nearby people of the matrimonial home or any of the colleagues or the person residing nearby the house at Guwahati. It has also been pleaded that he tried his best to bring the respondent in his house, but admittedly except his brother no persons have come to support this fact. He has admitted that he never filed any case u/s 9 but sent legal notice. That legal notice or its copy has not been brought on record. The allegations are not so grave as would amount to come under the term mental cruelty as interpreted in the decision referred above. On the other hand it has been brought on record by the respondent that virtually she is the victim of cruelty of serious nature at the hands of the petitioner and it has also been brought on record by her that on account of those cruelty the petitioner admitted his guilt and gave 2025:JHHC:32392-DB 22 undertaking before the police and his office also issued warning by office memo. Having regard to the discussed facts in the backdrop of the evidence on record, I find that the petitioner has not been able to prove cruelty as pleaded in the form of mental cruelty attributed to him in such a manner, that conduct of the respondent might have inflicted such mental pain and suffering, as would make it not possible for the petitioner to live with the respondent. On the other hand, it has come in evidence that the petitioner himself has attributed several kinds of cruelty with the respondent for which he is facing cases as well. It is also an admitted fact that by a competent Court, an order of maintenance has also been passed and it has been upheld by Hon'ble High Court with certain modification on the quantum of maintenance. Accordingly this issue No. 3 is decided against the petitioner and in favour the respondent. 17. Findings on Issue No. 4: Whether the petitioner is deserted by the respondent and both the petitioner and the respondent are living separately since 2016? A date for the purpose of suit has been pleaded that on 06.06.16 the respondent left the house of the petitioner giving him cause of action for the suit and from that day he has been left deserted. By pleading this aspect the petitioner has made a case of desertion also as ground of divorce, though not specifically mentioning the provision of law but nevertheless his case has been filed u/s 13 of H.M.A. Let us see that whether this date from which there is severance of relationship of husband and wife as pleaded give any ground of divorce to the petitioner which comes for discussion u/s 13(1) (ib) of the H.M.A. 18. Though this issue has not been worded as required u/s 13(1) (ib) of the H.M.A. but the period from which the case of desertion has been pleaded and denied is required to be seen in the backdrop of the provision as stated above. Section 13(1) (ib) of H.M.A. postulates the ground of divorce on the ground of desertion as hereunder: (1) -----Any marriage------ be dissolved by a decree of divorce on the ground that the other party- (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; It has to be read with the explanation as hereunder- [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 willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly] 2025:JHHC:32392-DB 23 From the plain reading of the section the period of two years is the fundamental criteria to be fulfilled for bringing the sit for divorce on the ground of desertion before institution of the suit. In para 4 and 7 of the plaint, a specific date of desertion has been pleaded as 06.06.2016 when the respondent allegedly left the house of the petitioner and deserted him. Admittedly suit has been filed on 09.08.2017, within two years of pleaded desertion and as such on this ground itself, the issue has no relevance for giving any impact as ground of divorce. 19. Having regard to the discussed facts in the backdrop of the evidence on record vis a vis, the parameters as ingredients required for desertion in the judgments supra, I find that the petitioner has not been able to prove desertion by the respondent. Accordingly, this issue No.4 is decided against the petitioner and in favour of the respondent. 20. Findings on Issue No. 1 Whether the suit maintainable in its present form? So far as maintainability aspect of the pleading in its present form is concerned, there appear no defect and being found in order complying the provisions of order VII C.P.C and format prescribed for filing matrimonial suit, the same was admitted and the case proceeded. Having found no technical defect, this issue is decided in favour of the petitioner. 21. Findings on Issue No. 2 Whether the petitioner has got valid cause of action? In the pleading the cause of action has been shown to be arisen on 06.06.16 when allegedly the respondent deserted the petitioner and never returned by seizing the matrimonial relationship as the ground for divorce, which has appropriately been dead while discussion of issue No. 4 which has been decided against the petitioner. The petitioner has not mentioned any other date of attributing cruelty to him for making those dates of specific cruelty as ground for divorce u/s 13(1) (ia) of the H.M.A. and as such I hold this issue also against the petitioner. 22. Whether the petitioner is entitled to get relief or reliefs as claimed for in the suit? Since the pivotal issues No.2, 3 & 4 have been decided against the petitioner and as such on the basis of discussion and findings, I find that the petitioner is not entitled to any relief or reliefs in this suit. 23. In view of the discussion made above I come to the finding that the petitioner has not been able to prove his case for divorce on the grounds of cruelty and desertion against the respondent on the touchstone of preponderance of probabilities. 2025:JHHC:32392-DB 24 24. Accordingly, it is ORDERED that, the suit is dismissed on contest. There shall be no order so as to cost. Let a decree be prepared. Office to consign the record thereafter, to the record room.” 66. This Court, on consideration of the finding arrived at by the learned Family Judge and based upon the aforesaid discussion, is of the view that the judgment and decree passed by the learned Family Judge is not coming under the fold of the perversity, since, the conscious consideration has been made of the evidences, both ocular and documentary, as would be evident from the impugned judgment. 67. This Court, therefore, is of the view that the judgment dated 20.10.2023 and the decree dated 30.10.2023 passed in Original Suit No.32 of 2020 by the learned Family Judge need no interference and, accordingly, the instant appeal stands dismissed. 68. Pending I.As, if any, stands disposed of. (Sujit Narayan Prasad, J.) (Arun Kumar Rai, J.) Dated:17/10/2025 Sudhir AFR