2026:JHHC:16990-DB 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI F.A. No.231 of 2024 ------------ 1. Pramod Kumar, Aged about 40 years, S/O-Late Keshaw Prasad, R/O- Binod Nagar, Near Trimurti Mandir, Gali No.10, P.O+P.S-Dhanbad, District-Dhanbad. … … Petitioner/Appellant Versus 2. 1. Anjana Devi, Aged about 35 years, W/O-Pramod Kumar, R/O-Laheria Tola, Krishna Engg. Workshop Gaya, P.O + P.S-Gaya, District-Gaya (Bihar). 3. 2. Union of India represented through Eastern Central Railway represented by D.R.M. … … Respondent/Respondent ------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY ------- For the Appellant : Mr. Pratiush Lala, Advocate For Res. No.1 : Mr. Abhijeet Kumar Singh, Advocate For Res. No.2 : Mr. Prashant Pallav, A.S.G.I. Mr. Bajrang Kumar, AC to A.S.G.I. ---------------------------- CAV on 08.05.2026 Pronounced on 11/06/2026 Per Sujit Narayan Prasad, J. Prayer 1. The instant appeal under Section 19(1) of the Family Courts Act, 1984 is directed against the Judgment dated 03.09.2024 and Decree dated 10.09.2024 passed by the learned Addl. Principal Judge, Family Court No.II, Dhanbad in Original Suit No.569 of 2019, whereby and whereunder, the petition filed against the respondent-wife under Section 13(1)(1-b) of the Hindu Marriage Act, 1955 for dissolution of marriage on the ground of desertion, has been dismissed. Facts 2026:JHHC:16990-DB 2 2. The brief facts of the case, as per the plaint, required to be referred herein, as under: 3. It is the case of the plaintiff/petitioner, appellant herein that he is legally married with the respondent-wife and their marriage was solemnized on 28.11.2004 at Dhanbad, according to Hindu Rites and Customs. After the marriage both the petitioner and respondent had been living together as husband and wife at Dhanbad. Out of the said wedlock the couple was blessed with two children. 4. It has further been stated that after marriage the behaviour of respondent/wife was much rude and abnormal and she always ill-treated with the petitioner. It is further stated that the petitioner always tried to pacify to lead normal life with his wife and tried to consult the several doctors but she refused to visit any doctor. 5. It has also been stated that the petitioner has filed original suit before the learned Family court and the same was dismissed by the court thereafter he has filed appeal before this Court but the same was dismissed on the ground of 484 days delay in filing the appeal. It has further been stated that the respondent is residing separately with her husband and there is no any relation between both parties as husband and wife and she has deserted the petitioner from 06-02-2010. The cause of action for the present petition arose on 28-11-2004 and 06-02-2010 when she deserted her husband and it also arose on several occasion when the respondent committed ill behaviour with him. 6. After service of summon, respondent/wife had appeared and contested the suit by filing a written statement and stated that the suit filed by the 2026:JHHC:16990-DB 3 plaintiff/husband/petitioner is not maintainable either in facts or in law. It has further been stated that the suit as has been filed by the petitioner/plaintiff only to harass and humiliated the respondent. The admitted fact that the marriage of the respondent/wife and petitioner/husband was solemnized on 28.11.2004 according to Hindu Rites and Customs. 7. It has further been stated that the allegation made by the petitioner/plaintiff/husband was totally denied by the respondent/wife. It has further been stated that just after few days of marriage, the petitioner/husband and his family members started torturing the respondent for non-fulfillment of demand of dowry and lastly ousted her from her matrimonial home. Thereafter, she has filed a criminal case against the petitioner/plaintiff and his family members which got ended on the basis of compromise and they were ready to live together as husband and wife at Railway Quarter. But after sometime, the petitioner/husband again started torturing her and the matter was reported before the Mahila Thana on 05.12.2013. It has further been stated that the petitioner/husband refused to maintain the respondent/wife and her two minor daughters for which the respondent/wife had filed MP Case No.269/14 for maintenance under Section 125 of the Cr.P.C. 8. It has further been stated that earlier the petitioner/husband has filed divorce case bearing case no.526/14 and the same was dismissed vide order dated 04.04.2016 on merit. On the aforesaid grounds the respondent-wife has prayed to dismiss the suit. 2026:JHHC:16990-DB 4 9. On the basis of the pleadings of the parties, the following issues have been framed by the learned Family Judge for adjudication of the suit, which are as follows: - (i) Whether the suit is maintainable in it’s present form? (ii) Whether the petition has got valid cause of action for the suit? (iii) Whether the respondent has deserted the petitioner? (iv) Whether the petitioner is entitled for any other relief? 10. The evidences have been made on behalf of both the parties. Thereafter, the judgment has been passed dismissing the suit filed under Section 13(1)(i-b) of the Hindu Marriage Act, 1955 for a decree of divorce by the petitioner, appellant herein, which is the subject matter of the present appeal. Submission of the learned counsel for the appellant-husband: 11. It has been 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. 12. It has been submitted that after marriage, the behaviour of the respondent/wife was much rude and abnormal and she always ill-treated with the petitioner/husband. The petitioner always tried to pacify to lead normal life with his wife and tried to consult the several doctors but she refused to visit any doctor. 13. It has further been submitted that the respondent-wife has deserted the appellant/husband for a continuous period of more than ten years and living 2026:JHHC:16990-DB 5 separately at her parental house and she refused to co-habit with the appellant since the year 2010. 14. It has also been contended that the respondent-wife is not leading the conjugal life with the petitioner since the year 2010 and now there is no any possibility to reunite in near future. 15. It has further been submitted that the issue of desertion has not been taken into consideration in right perspective by the learned Family Court, hence, the judgment impugned suffers from an error. 16. Learned counsel for the appellant/petitioner, based upon the aforesaid grounds, has submitted that the judgment impugned suffers from perversity, as such, not sustainable in the eyes of law. Submission of the learned counsel for the respondent-wife 17. Per contra, 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 desertion and has come to the conclusion that no evidence has been adduced to establish the issue of desertion, hence, has dismissed the suit. 18. It has been contended that just after few days of marriage, the petitioner and his family members started torturing the respondent-wife for non- fulfillment of demand of dowry and lastly ousted her from her matrimonial home. 19. It has also been contended that her husband is having illicit relationship with another lady, namely, Gudiya Devi and there is child also, therefore, he has filed the suit for divorce. 2026:JHHC:16990-DB 6 20. It has further been contended that the suit was filed by the appellant/petitioner, is only to harass and humiliate the respondent-wife. 21. It has also been submitted that she was ready to live together as husband and wife but after sometime, the appellant again started torturing her and the matter was reported before the Mahila Thana on 05.12.2013. 22. It has also been contended that the appellant/petitioner has refused to maintain the respondent-wife and her two minor daughters for which the respondent filed M.P. Case No.269/14 for maintenance under Section 125 Cr.P.C. 23. Learned counsel, based upon the aforesaid grounds, has submitted that if on that pretext, the factum of desertion has not been found to be established, hence, the impugned judgment cannot be said to suffer from an error. Analysis: 24. 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. 25. Before entering into the merits of the case, it is necessary to advert to the import of the order dated 8th May, 2026, from which it is evident that this Court made an earnest attempt to reconcile the parties. However, as no substantial outcome emerged and the parties did not agree to reconciliation, this Court has thought it appropriate to proceed to adjudicate the matter on merits. For ready reference, the order dated 8th May, 2026 is being quoted as under: 2026:JHHC:16990-DB 7 “Order No.07/Dated: 8th May, 2026 1. Although we have referred in the order dated 06.04.2026 that there is chance of settlement in terms of money as has been referred by the learned counsel appearing for the appellant-husband by pointing out para-9 as referred in the order dated 06.04.2026. 2. The respondent-wife is present in the Court and when she has heard the aforesaid submission made on behalf of the appellant-husband, then she has seriously opposed that she is not concerned with the settlement in terms of money, rather she wants the matter to be decided on merit. 3. This Court, therefore, is of the view that when one of the parties is not agreeing to the settlement in terms of money, then the Court is having no option but to decide the matter on its own merit. 4. Accordingly, the learned counsel for both the parties have invited to argue the matter on merit. 5. Heard the learned counsel appearing for the parties at length. 6. Argument concluded. 7. Judgment reserved.” 26. The case has been heard at length. The admitted fact herein is that the suit for divorce has been filed on the ground of desertion, i.e., by filing an application under Section 13(1) (i-b) of the Hindu Marriage Act, 1955 and accordingly, issues have been framed wherein primarily issue no. III which pertains to desertion. 27. The evidence has been led on behalf of both the parties. For ready reference, the evidences led on behalf of the parties are being referred as under: List of petitioner(s) witness(s) P.W.1, Pramod Kumar P.W.2, Raj Kumar Vishwakarma The petitioner/appellant herein has not produced documentary evidence on his behalf. P.W.1, Pramod Kumar (petitioner himself), has deposed in his examination-in-chief that he has filed this divorce case against his wife Anjana 2026:JHHC:16990-DB 8 Devi, with whom, he was married dt. 28-11-2004. Out of the wedlock two children were born. Since the beginning of the marriage his wife refused to lead conjugal life peacefully with him. He always tried to maintain good relationship with his wife but she does not want to live with him. Since after marriage his wife lives in her maika at district Gaya Bihar. He has tried several times for mediation but could not succeeded. His wife has filed maintenance case in which as per order of learned Family Court he is paying maintenance Rs.9000/- per month to his wife. He always tried to lead conjugal life with his wife but she has filed criminal case against him u/s 498A IPC bearing case no-2793/14. His wife has filed another criminal case against him and his brother no-2382/18. Both the cases are still pending. Due to continuous harassing by his wife to him he also has filed complaint case no-1579/17 and also, he has filed divorce case against his wife. For last few months she used to abuse him while he was on his duty and due to which he got mentally puzzled and as a result of which as Loco Pilot in rail Engine he crossed the red signal for which he was punished by railway department and department proceeding is still going on against him. He and his family were being tortured physically mentally and economically by the respondent. He has further stated in his evidence that his wife and children are residing separately with him from dt. 26-11-2014 and during this period there is no any relation and he heard that she is residing in live in relationship with another person. He has been totally deserted by the respondent. Both parties are residing separately for many years and he was tortured physically and mentally by his wife so he has filed this divorce case. In his cross-examination, he has deposed that he has two children who are residing with his wife who took them forcibly. He has not filed any case for 2026:JHHC:16990-DB 9 the guardianship of children. He is doing job as Loco Pilot in railway department. It is not true that he has molested his sister-in-law (Sali) in civil court and for that GR case no-2382/18 was filed by his wife. His wife has filed a case no-2793/14 for demand of dowry and cruelty against him and thereafter another case no 2382/18 was also filed against him. He also has filed CP case no-1579/18 against his wife and her family members. He has further deposed that in her evidence that earlier he had filed divorce case no-526/14 which stood dismissed by the then Family court and he has filed revision before the Hon'ble high court which also stood dismissed by the Hon'ble High Court. He has not challenged the order of Hon'ble high court before the Hon'ble Apex court. The statement made in para-5 & 7, 10, 11 & 12 of affidavit has not been mentioned in his plaint. He is suffering from skin disease. On her instigation to the children by his wife, they abused him. He has made complaint in Thana after the aforesaid incident. The copy of complaint s not been filed in court. He has not made any Dhanbad complaint in Thana regarding the allegation as mentioned in para-13 of the affidavit. He does not have remember that in plaint he has mentioned the date of separation as dt. 06-02-2010 whereas in affidavit for evidence he has mentioned the date of separation as dt. 26-11-2014. He has not witnessed that his wife is living in living relationship. But he heard about the same with other people. He cannot say the name of those people. He does not have remember that aforesaid fact of living relationship has been mentioned in his plaint or not. It is not true that he himself had beaten to his wife and after being tortured he ousted her from his house. P.W.2, Raj Kumar Vishwakarma (brother of the petitioner/appellant herein) who has supported the evidence of P.W.1 and 2026:JHHC:16990-DB 10 has deposed that he is the brother of Pramod Kumar and residing in District Gaya. The marriage of his brother was solemnized in the year 2004. He cannot say the date when quarrel took place between both the parties. Anjana had filed the case for dowry and cruelty against her husband and others in which the petitioner/appellant Pramod was convicted. Pramod has deserted Anjana since 2014. List of Respondent(s) witness(s) R.W.-1, Anjana Devi R.W.-2, Sister of the respondent-wife The documentary evidence has been produced on behalf of the respondent- wife which are as follows:- Exhibit No Description of documents Ext.-A to C C.C. of order-sheet, Plaint, Judgment of TMS Case no.526/14 Ext.-D to F C.C. of FIR, order-sheet, compromise petition of Dhanbad PS 115/10 Mark-Y & Y/1 Two coloured photographs Mark-2 Copy of RTI letter with medical report Mark-Y/3 to Y/7 Copy of order sheet, plaint, show cause, petition dt.04.08.2018, order dt. 10.11.2022 in Misc. Case no.48/18 of Family Court Gaya. 2026:JHHC:16990-DB 11 Mark-Y/8 to Y/9 Copy of order sheet, judgment of CP Case No.2793/14 Mark-Y/10 & Y/11 Copy of after charge cross examination of Atul Kumar and Anjana Devi in CP Case No.2793/14 R.W.-1 Anjana Devi (respondent herself) has deposed in her examination-in-chief that she was married with Pramod Kumar on dt. 28-11- 2014 with Hindu Rites and customs. After marriage she came to her sasural at District Gaya where she resided in joint family. After six months of marriage her in laws started torturing her due to demand of dowry. While living in Dhanbad with her husband she was demanded Rs. 25,000/- as dowry which increased gradually and on nonfulfillment of demand of dowry he was beaten with belt. The age of the children are 17 years and 11 years. She has further deposed that while living in Dhanbad in year 2011 she was ablezed by pouring kerosine oil over her body and he tried to kill her and she was admitted by the other people of the quarter in railway hospital Dhanbad. She has not filed any case regarding the incident as because she was forbidden considering the future of the children. Her husband has filed divorce case in year 2014 which was dismissed. In year 2015 she was driven out along with the children and since then she is residing in her maika. In maintenance case an order was passed to pay Rs. 9000/ by the petitioner to her and again in alteration case filed by her and the said maintenance amount was enhanced Rs. 22,000/-per month but in spite of order of court no maintenance is being provided to her. Her husband is bad having illicit relationship with another lady namely Gudiya Devi and there is child also and so he has filed this 2026:JHHC:16990-DB 12 divorce case. He is ready to reside with her husband provided he will keep her with full dignity and honour. In course of pending of this case also her husband had established sexual relationship with her. Further, in her cross-examination, this witness has deposed that she has stated that she has filed three cases against him and her husband has filed two cases against her. He is residing separately with her husband when she was driven out from her matrimonial home. After being disposed off of the divorce case in year 2015 she was kicked out from her matrimonial home. She resided in Dhanbad till year 2015. In year 2023 her husband had come to her house but she cannot say the date and time when he visited to her maika. It is not true that she is residing separately with her husband since the date of filing of the case in year 2010. R.W.-2 (sister of respondent-wife) has supported the evidence of R.W.1 in examination in chief and in cross-examination. She has deposed that her sister is residing in her maika since 2016 and since thereafter, she did not meet with her husband. Her jija provides maintenance to her sister. Pramod Kumar has performed second marriage and there is child also with second marriage. 28. The learned counsel for the appellant/petitioner has emphatically argued that the evidence of desertion has not properly been considered and as such, the judgment suffers from perversity, hence, not sustainable in the eyes of law. 29. While on the other hand, argument has been advanced on behalf of the respondent-wife that the judgment has well been considered and merely by committing fraud, the suit for divorce has been filed. 2026:JHHC:16990-DB 13 30. 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. 31. The Hon'ble Apex Court in Arulvelu and Anr. vs. State [Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206 while elaborately discussing the word perverse has held that it is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27 of the said judgment reads as under: “24. The expression “perverse” has been dealt with in a number of cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501] this Court observed that the expression “perverse” means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity. 25. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [AIR 1966 Cal 31] the Court observed that “perverse finding” means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341] the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings. 26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed that a “perverse verdict” may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey [106 NW 814] the Court defined “perverse” as turned the wrong way, not right; distorted from 2026:JHHC:16990-DB 14 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.) 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.”” 32. Thus, a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. Further “perverse” means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity. 33. Herein, the desertion has been taken as a ground for divorce by the appellant/petitioner, therefore it would be apt to refer herein the meaning of the desertion. 2026:JHHC:16990-DB 15 34. Therefore, the definition of “desertion” is required to be referred herein as defined under explanation part of Section 13 which means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage. 35. Rayden on Divorce which is a standard work on the subject at p. 128 (6th Edn.) has summarised the case-law on the subject in these terms: “Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party.” The legal position has been admirably summarised in paras-453 and 454 at pp. 241 to 243 of Halsbury's Laws of England (3rd Edn.), Vol. 12, in the following words: “In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, ‘the home’. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not 2026:JHHC:16990-DB 16 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. 36. 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. 37. It needs to refer herein that the "Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words, it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. 38. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself; it is a continuous course of conduct to be determined under the facts and circumstances of each case. 2026:JHHC:16990-DB 17 39. After referring to host of authorities and the views of various authors, the Hon’ble Apex Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati [AIR 1957 SC 176] held that if a spouse abandons the other in a state of temporary passions, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. 40. For the act 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 (animus deserendi). 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. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. 41. The act of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus ort it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons 2026:JHHC:16990-DB 18 the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. 42. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court. 43. Following the decision in Bipinchandra's case (supra) the Hon’ble Apex Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena alias Mota [AIR 1964 SC 40] by holding that 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. For holding desertion proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. 44. In the case of Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, reported in AIR 2002 SC 88 the Hon'ble Supreme Court has observed which reads as under : "The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include 'wilful neglect' of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the 2026:JHHC:16990-DB 19 Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes wilful neglect of the petitioner by the other party to the marriage, therefore, 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 (animus deserendi). Similarly, no elements are essential so far as the deserted spouse is concerned; (1) absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period." 45. In the case of Savitri Pandey v. Prem Chandra Pandey, reported in 2002 AIR SCW 182, the Hon'ble Supreme Court in has observed as under : "Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words, it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case " 46. 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 2026:JHHC:16990-DB 20 of separation, and (2) the intention to bring cohabitation permanently to an end. 47. 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. 48. 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 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) … 2026:JHHC:16990-DB 21 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.” 49. This Court, on the premise of the interpretation of the word “desertion” has considered the evidences of the witnesses as has been incorporated by the learned Court in the impugned judgment. 50. Herein, the ground of desertion has been taken by the appellant/petitioner that the respondent-wife has deserted the petitioner for a continuous period of more than ten years and living separately at her parental house and she refused to co-habit with the petitioner since the year 2010. 51. It is evident from impugned judgment that in order to substantiate the aforesaid fact, no material or cogent evidence has been put-forth before the learned Family Court. 52. It needs to refer herein that from perusal of impugned order it is evident that that the respondent-wife while living in her sasural had been harassed and tortured in various ways by the petitioner, appellant herein. Further, he has not made any complaint against his wife of torturing him either in Thana or any other form whereas the respondent has deposed that she herself was tortured by the appellant-husband and only to save himself he has filed divorce case as because he has illicit relationship with another lady namely, Gudiya Devi. 53. It further appears from the order impugned that prior to filing of suit, the appellant had earlier filed divorce case in the year 2014 bearing case no.526/14 which stood dismissed on the ground that the appellant could not 2026:JHHC:16990-DB 22 prove that he was subjected to cruelty by the respondent while living in sasural and the allegation made by the petitioner/husband against the respondent-wife was found to be false. Thereafter, the appellant again filed the divorce case on the ground of desertion against his wife by alleging that he was deserted by his wife since the year 2014. 54. In this regard, he has given contradictory statement. In his plaint he has mentioned at para-7 of the plaint that the respondent is residing separately with him from 06.02.2010 whereas in his evidence he has stated that his wife is residing separately with him since the year 2014. 55. Further, the brother of the appellant has also deposed in his cross- examination that Anjana (respondent) has filed a case for dowry and cruelty against her husband and in the aforesaid case, the petitioner has been convicted and further he has deposed in para-21 that the appellant Pramod himself has deserted to his wife since the year 2014. 56. In view of the testimony of the aforesaid witnesses, the allegation of desertion against the respondent-wife stands wholly discredited and cannot be sustained. 57. Thus, on the factual aspect aforesaid, it is evident that appellant/husband has failed to produce any material evidence in order to substantiate his claim of desertion against the respondent wife. 58. This Court has interpreted the word ‘desertion’ and the desertion has been defined and interpreted by the Hon’ble Apex Court that the desertion will be said to be desertion if either of the party, on his/her own wish, has left the matrimonial house. But no such evidence has been produced by the 2026:JHHC:16990-DB 23 appellant/petitioner to prove the element of desertion showing that the respondent-wife has left her matrimonial house without any reasonable cause. 59. Reference of Section 23(1)(a) of the Hindu Marriage Act needs to be referred herein wherein it has been provided that one cannot be allowed to take advantage of its own wrong. For ready reference, Section 23(1) reads as under: “23. Decree in proceedings.—(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that (a) any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and (b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and [(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and] (c) 4 [the petition (not being a petition presented under section 11)] is not presented or prosecuted in collusion with the respondent, and (d) there has not been any unnecessary or improper delay in instituting the proceeding, and (e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly. (2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about reconciliation between the parties: 5 [Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of section 13.] [(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated 2026:JHHC:16990-DB 24 by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report. (4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.]” 60. For proving desertion, it is onus upon the party who is taking the ground for seeking dissolution of marriage is to substantiate that the party has left the house on her own. Contrary to that, if the party has been compelled to leave the house on the basis of cruelty which has been meted out to her then the same will not come under the fold of desertion and in that view of the matter, Section 23(1)(a) of Hindu Marriage Act is to be made applicable that if the husband is at wrong, he cannot be allowed to take advantage of his own wrong. 61. This Court, on consideration of the impugned judgment as also the material available on record, has found that no such cogent evidence has been produced by the husband to prove the ground of desertion. 62. The learned Family Court after due appreciation of all the evidences available on record has come with the finding that there is non-availability of the ground for dissolution of marriage and therefore, dismissed the suit. 63. This Court, based upon the aforesaid discussions, is of the view that the appellant/petitioner has failed to establish the element of perversity in the impugned judgment as per the discussions made hereinabove, as such, the instant appeal deserves to be dismissed. 64. Accordingly, the instant appeal fails and is, dismissed. 2026:JHHC:16990-DB 25 65. Pending interlocutory application(s), if any, also stands disposed of. (Sujit Narayan Prasad, J.) I Agree. (Anubha Rawat Choudhary, J.) (Anubha Rawat Choudhary, J.) 11/06/2026 Rohit/A.F.R. Uploaded on 12.06.2026