SWARNA JHA Ž SWARNA MISHRA vs PARSOON KUMAR MISHRA

Neutral Citation No. ( 2026:JHHC:32540-DB )

IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 109 of 2011

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Swarna Jha @ Swarna Mishra, wife of Sri Prasoon Kumar Mishra
and daughter of Ganesh Jha, presently permanently residing at Qr.
No.189/2/6, Main Road, Chhota Govindpur, P.O. & P.S. Govindpur,
Town Jamshedpur, District East Singhbhum.
... ... ... Appellant
Versus

Prasoon Kumar Mishra, son of Sri Jaya Nand Mishra, resident of
B. Block, Pradeep Vihar, Ibrahimpur, Delhi-36, at present-address
resident of B-10/144, Pradeep Vihar, Ibrahimpur, Nathupura More,
New Delhi-110036. ….. … ... Respondent
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CORAM: HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE MANOJ PRASAD
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For the Appellant : Mrs Shilpi Sandil Gadodia, Advocate
Ms Shruti Shekhar, Advocate
Ms Nidhi Lall, Advocate
Ms Sejal Agarwal, Advocate
Ms Sakshi Kathuria, Advocate
For the Respondent : None
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Reserved On : 06/10/2026 Pronounced On: 05/11/2026
Per : Manoj Prasad, J.
1. Heard Mrs Shilpi Sandil Gadodia, learned counsel for the
appellant, who appears with Ms Shruti Shekhar, Ms Nidhi Lall,
Ms Sejal Agarwal and Ms Sakshi Kathuria, Advocates. None
appears for the Respondent.
2. The present appeal has been filed by the plaintiff-appellant
Swarna Jha @ Swarna Mishra, impleading her husband, who
was opposite party before the Court below as respondent.

3. The present appeal challenges the judgment and decree dated
th th
25 July 2011, decree signed on 29 July 2011 by the learned
Principal Judge, Family Court, Jamshedpur in Matrimonial Suit
No.21 of 2008, whereby, the application for dissolution of
marriage filed by the present appellant against the present
respondent under Sections 13(1) (i-a) and (i-b) of the Hindu
Marriage Act, i.e, on the grounds of cruelty and desertion was
dismissed.
4. Briefly stated the facts of the case are hereunder: -
The appellant filed an application for dissolution of marriage,
alleging, inter- alia that the parties were legally married
husband and wife, which marriage was solemnized on
10.03.2002 and that out of the wedlock, they were blessed with
a male child Arsh Utsav, who was born in the month of
December 2002. It is stated that after marriage, she lived
happily for a couple of months at her matrimonial home, but
soon after the birth of a child, she was subjected to cruelty and
was physically and mentally tortured for demand of dowry of
Rupees Four Lakhs for the purpose of business of the
respondent. Further stated that for non-fulfillment of the said
demand of dowry, the appellant was ousted from her
th
matrimonial home on 17 May 2003 and since then has been
residing with her parents. It is also stated that the respondent,
who is a practicing advocate at Delhi, practicing at the Lower
2 F.A. No.109 of 2011

Court, the High Court as well as the Supreme Court and had
earnings of more than Rs.50,000/- a month, neglected to take
care of his wife and infant child. Besides, allegations are
against the respondent of having abused, insulted and
physically and mentally tortured the appellant. On these
grounds, the prayer for dissolution of marriage was made.
5. On service of summons, the respondent appeared and filed a
detailed reply, including preliminary objection as well as
para-wise reply to the averments made in the application for
dissolution of marriage. It is stated that the appellant comes
from a rich family while the respondent was financially weak
and that became the dominant reasons for dispute between
the parties. Never any demand for dowry was made, rather the
appellant who was working in Maheshwari & Associates and
subsequently, is working with ICICI, had substantial earning,
but completely neglected her husband and tortured the entire
family members. It is stated that the present appellant
concealed the factum of marriage and even in official
documents did not disclose the name of her husband. She
even did not wear the sindoor, which are all religious bonds
indicating the marriage of a women. She also did not perform
the festivals which were meant for the longevity and prosperity
of the husband. The parents of the appellant, who were
neglected by their own sons, had the only support system of
3 F.A. No.109 of 2011

the present appellant and therefore, on their instigation and on
their brainwashing, the present appellant insulted and abused
the respondent and neglected his family members and refused
to perform her matrimonial duties. It is stated that the present
respondent had filed a complaint at Govindpur Police Station
for the reason that the parents of the appellant were illegally
demanding Rupees Ten Lakhs from the present respondent. It
is also stated that the respondent was a women rights activist,
and therefore, there was no question of the present respondent
abusing or insulting the present appellant. While giving para-
wise reply, every statement made in the plaint was denied. It is
stated that the appellant was never ousted from her
matrimonial home and alleged demand of dowry of Rupees
Four Lakhs was also denied. On the contrary, it is alleged that
on account of undue pressure created by the appellant and her
family members to bring Rupees Ten Lakhs, the respondent
lodged a complaint to the police at Govindpur Police Station,
Jamshedpur. Counter allegations are made that the appellant
used to intimidate the respondent and his family members with
threat of false implication in criminal cases. Despite admitting
that the respondent was a practicing advocate, it is stated that
the respondent was a struggler in legal profession and with
much difficulty was able to manage his days’ meals. The
respondent even agreed to live with the appellant at
Jamshedpur but was not allowed access. The respondent was
4 F.A. No.109 of 2011

not informed of any family function in the house of the
appellant, including the ‘ Mundan Sanskar’ of his own son. On
account of such acts on behalf of the respondent, it is alleged
that the respondent is suffering from mental and psychological
distress. It is stated that the respondent is a victim of the
cruelty, meted out by the appellant. In the detailed written
statement, it is also stated that the respondent saw the
appellant accompanying some other man while she was
undergoing training at Tata AIG Insurance Company and on
one occasion, when he reached the office to bring back his
wife, she no doubt accompanied him, but without disclosing
that the respondent was her husband. The allegations against
the parents of the appellant are also there of having abused
and insulted the respondent and his parents and other family
members. Thus, it is stated that no case of cruelty or desertion
is made out and the respondent was/is willing to restore the
conjugal life. Prayer was made to dismiss the suit.
6. Based on the pleadings, the following issues were framed: -
(i) Whether the petition as framed and filed is maintainable?
(ii) Whether after solemnization of marriage between the
parties, the respondent treated the appellant with
cruelty?
5 F.A. No.109 of 2011

(iii) Whether the respondent deserted the appellant for
continuous period of more than two years immediately
preceding the presentation of this petition?
(iv) To what relief/reliefs, is the petitioner entitled to?
7. After framing of issues, the witnesses were examined on
behalf of the parties. Five witnesses were examined on behalf
of the present appellant. P.W.1 was appellant herself, P.W.2
happens to be the mother of the appellant, P.W.3 is a neighbor
of the appellant namely Pradeep Kumar Singh, P.W.4 is a
colleague of the appellant namely Stephen Francis and P.W.5
is the father of the appellant namely Gangesh Jha. On behalf
of the respondent, the first witness is Parmanand Mishra, the
uncle of the respondent, the second witness is Hemant Kumar
the brother of the respondent, the third witness is Jayanand
Mishra the father of the respondent and last witness is the
respondent himself, i.e., Prasoon Kumar Mishra. The birth
certificate of the minor child, born on 21.12.2002, is Exhibit-A.
No other oral or documentary evidence is there on the record.
The learned Trial Court after hearing the parties considering
the oral and documentary evidence on record and also
considering the respective contentions of the parties as per the
pleading took up the issue of cruelty and desertion. While
examining the aspects of cruelty, the learned Trial Judge held
that it was alleged by the present appellant that demand of
6 F.A. No.109 of 2011

Rupees Four Lakhs was made and for non-fulfillment of the
said demand, she was subjected to cruelty. However, the
appellant in her cross-examination failed to disclose the date
and time of demand. The allegation of abuse was also made
but no specific dates and time have been given. The appellant
in cross-examination admitted that she never used to wear
sindoor, and it is also admitted that the respondent was not
informed in any family function, including the function of
‘ Mundan’ of the child. The appellant also admits that in the
form of Tata AIG Insurance Company, she did not disclose the
name of her husband. The witnesses of the appellant as well
as the respondent were discussed and finally, the learned Trial
Court concluded that the appellant failed to make out a case of
cruelty against the respondent and the essential ingredients to
make out a case of desertion was missing as the respondent
still was agreeable to restore the conjugal life. This amounted
to absence of the intention to desert, despite the fact that the
parties have been living separately for long. These issues,
accordingly were decided against the present appellant and
consequentially, the suit of the present appellant was
dismissed.
8. In the present case, it appears that efforts of settlement was
made by the Coordinate Benches of this Court several times,
but finally, it appears that by order dated 01.08.2025, when the
7 F.A. No.109 of 2011

appellant, respondent and their son were physically present,
pursuant to the orders of the Court, it was held that the
possibilities of settlement did not exist and willingness to re-
start their life was completely absent and therefore, the case
was ordered to be listed for ‘hearing’ on merits and the appeal
has been heard on its merits.
9. It is also important to mention that the appellant was
represented by her Learned Advocate, and the respondent
was appearing in person. However, on the last date, when the
matter was heard, the respondent was not present in person,
but as written arguments on behalf of the respondent were
available on record, the case was reserved for orders.
10. Written arguments have been filed on behalf of both parties
and are on record. Learned counsel appearing on behalf of the
appellant has submitted that for the last more than 23 years,
the parties are living separately. There has been no
resumption of conjugal life between the parties. The allegations
and counter-allegations are there, but if the allegation made by
the present respondent in the pleading, and also given by way
of suggestion to the present appellant while cross-examining
the appellant, is considered, the same are facets of cruelty that
do not require further proof. It is stated that the respondent
while cross-examining the witness has stated that the appellant
had given some declaration of having two sons. Such
8 F.A. No.109 of 2011

unsubstantiated allegations have imputations on the character
of the present appellant and is cruelty of the highest
magnitude. Similarly, in the pleading, it has been stated that
the appellant used to accompany some male friend, while
returning from the office, back to her home. Such allegation
ex-facie is imputation on the character of the appellant and is
also cruelty of the highest degree. P.W.4 who was a colleague
of the appellant, who had come to depose in the Court, was
also given a suggestion that he was supporting the case of the
appellant as he was also a bachelor. These all facts in the
case, amounts to character assassination of the present
appellant and such allegation themselves amounts to cruelty
which was ignored by the learned Trial Judge. Learned
counsel also submits that the learned Trial Judge ignored the
evidence of the appellant for certain hyper technical reasons.
11. The learned Trial Court held that though the allegation of
demand of dowry is there but the same has not been
corroborated as to when this demand of dowry was made. The
settled principle of law is that in matrimonial cases, like civil
suits, evidence on preponderance of probabilities has to be
examined unlike criminal cases where the standard of proof is
beyond shadow of reasonable doubt. Learned counsel also
submitted that the statements in isolation have been
considered by the learned Trial Judge. It is true that the
9 F.A. No.109 of 2011

appellant in her evidence had stated that she did not inform the
present respondent even during the family functions. But the
reason assigned therein was not considered by the learned
Trial Judge as the appellant had stated that he was not
informed for the reason that every time, when he used to come
to their house, he used to create mischief in presence of
guests and in public view by verbally abusing each and every
family member using filthy language.
12. Learned counsel submits that the law is settled that the
statements were to be taken as a whole or not at all. It could
not have been read in isolation and only a fragment of the
statement could not have been isolated for the purpose of
denying the relief. further submitted that it is true that in the
written statement and also in the oral evidence, the respondent
has stated that he was ready to restore the conjugal life but
merely making such bald statements without any genuine effort
to restore conjugal life should have been considered by the
learned Trial Judge.
13. Admittedly, till date, no application for restitution of conjugal
rights has been filed by present respondent and admittedly, till
date, the respondent has not bothered to pay a single penny
for the upbringing/ maintenance of his son, which ought to
have been considered by the learned Trial Judge.
10 F.A. No.109 of 2011

14. Thus, these aspects of the case are sufficient to set aside
the impugned judgment and decree and allow the present
appeal by dissolving the marriage between the parties by a
decree of divorce both on the grounds of cruelty and desertion.
15. In the written synopsis filed on behalf of the appellant, a
summary of facts has been mentioned. It is admitted that the
th
marriage was solemnized between the parties on 10 March
st
2002, and a male child was born out of the wedlock on 21
December 2002. The appellant alleges that she was ousted
from her matrimonial home for non-fulfilment of the illegal
demand of dowry of Rupees Four Lakhs, which occurred on
17.05.2003, and the present suit for dissolution of marriage
was instituted in the year 2008, which was dismissed by the
impugned judgment and decree on 25.07.2011. The statement
of witnesses examined by the appellant has been discussed. It
is stated that the brother of the respondent examined as
R.W.2, admitted that the respondent needed a separate
chamber, for which, they were trying to arrange money, which
in fact corroborates the case of the appellant that such demand
of money was made on the pretext of dowry demand for
purchasing a chamber by the present respondent.
16. Three questions of law have been formulated by the
learned counsel for the appellant in her written submission, i.e.,
firstly , whether the learned Family Court applied any
11 F.A. No.109 of 2011

impermissibly high standard of proof, secondly , whether the
unsubstantiated character assassination and defamatory
allegations made by the respondent during trial, constitute
mental cruelty under Section 13(1)(i-a) of the Hindu Marriage
Act and thirdly , whether the continuous separation of the
parties since May, 2003 has resulted irretrievable breakdown
of marriage, rendering, the refusal to sever the tie, an act of
mental cruelty.
17. While discussing the first question of law, it has been
stated that the Hon’ble Supreme Court in N.G. Dastane Vs. S.
Dastane, reported in (1975) 2 SCC 326, held that unlike the
standard of proof applicable for adjudicating the criminal
proceedings, in matters relating to matrimonial dispute, normal
rule governing the civil proceeding applies. The Court has to
determine whether on giving the evidence, a reasonable
person would conclude that the allegations are more likely to
be true or not.
18. On the second question of law, reliance has been placed
on the judgment in the case of Praveen Mehta Vs. Inderjit
Mehta reported in (2002) 5 SCC 706 , where the Hon’ble
Supreme Court has held that continuous demand of dowry,
ouster from the matrimonial home, prolonged neglect and
denial of maintenance to the wife and child and use of abusive
language are all acts of cruelty to satisfy the ingredients under
12 F.A. No.109 of 2011

Section 13(1) (i-a) of the Hindu Marriage Act. The same view
has also been held by the Hon’ble Supreme Court in Shobha
Rani Vs. Madhukar Reddi, reported in (1988) 1 SCC 105 .
Further, the Hon’ble Supreme Court in V. Bhagat Vs. D.
Bhagat, reported in (1994) 1 SCC 337 and further reiterated
in the case of K. Srinivas Rao Vs. D.A. Deepa, reported in
(2013) 5 SCC 226 , held that unsubstantiated imputation upon
the chastity of a woman made on oath and placed on the Court
records constitutes grave mental cruelty.
19. Further, leveling of false and reckless allegations
amounted to cruelty as decided in the matter of Raj Talreja Vs.
Kavita Talreja, reported in (2017) 14 SCC 194. On the third
question of law, reliance has been placed on the judgment in
the matters of Naveen Kohli Vs. Neelu Kohli, reported in
(2006) 4 SCC 558 ; Samar Ghosh Vs. Jaya Ghosh, reported
in (2007) 4 SCC 511 and K. Srinivas Rao Vs. D.A. Deepa,
reported in (2013) 5 SCC 226, where the Hon’ble Supreme
Court has held that when marriage has ruptured beyond repair
and the parties are living apart for prolonged period, forcing
them to preserve the legal status of marriage inflicts severe
psychological torture and constitutes mental cruelty. With these
submissions, the prayer is made to set aside the impugned
judgment and decree.
13 F.A. No.109 of 2011

20. The respondent had filed a reply to the appeal, reiterating
similar facts as stated in the written statement. Written
argument has also been filed on behalf of the respondent
where the respondent has stated the facts of the present case
which now does not remain to be in dispute. The respondent
has referred to the cross-examination of P.W.1, where the
appellant, while denying that her husband was present at
Tinplate Hospital, day and night, admits that in the consent
form for cesarean operation during the time of birth of their
son, signature of the respondent was taken on the form. At
para 41, the appellant admits that the respondent wrote
various letters to her, but she did not reply. At para 48, she is
unable to disclose the name of various paternal and maternal
uncles of the respondent. At para 49, she admits that she did
not inform the respondent about any function in her family,
including her son’s ‘ Mundan’ ceremony and also admits that
while filling the TATA AIG form, she did not put the name of
her husband. At para 73, she is unable to give the date when
demand of dowry was made and at para 79, admits of having
no written proof that the respondent demanded dowry from
her. At para 90, she says that she never enquired as to how
the respondent has been living at Delhi, since the last six years
nor made any inquiry with regard to the health condition of the
respondent. At para 114, she says that she sent message to
the respondent not to harass her as the respondent used to
14 F.A. No.109 of 2011

send messages having abusive words and threats, then,
reference is made to the cross-examination of P.W.2 which is
not very significant as there are only suggestions. Reference is
made to the evidence of P.W.4 who was a co-employee with
the present appellant, who in his evidence has stated that the
respondent used to make frequent calls during the office
working hours and used to even abuse and threaten the other
colleagues of the present appellant, however, he was unable to
bring on record the call details and the dates when such calls
were made. Certain documents have been referred which
though has not been marked as Exhibit but perhaps forms part
of the examination-in-chief of the present respondent being
journey tickets, showing the fact that the appellant with her son
had stayed with the respondent in the year 2007. He has also
brought on record the copy of a decree for restitution of
conjugal rights. It is stated that false allegation of demand of
dowry was made and false allegation of ouster of the appellant
th
on 17 May 2003 was also made. It has been stated that it is
a case where the appellant has admitted of having made false
statement of dowry as the same was not corroborated by any
corroborative evidence or any document. There is nothing on
record to show that any complaint was filed by the present
appellant against the respondent with regard to demand for
dowry or cruelty meted out on her. It is also stated that the
15 F.A. No.109 of 2011

parties lived together lastly in the year 2007 and hence,
allegation of desertion is also unfounded.
21. The written argument refers to the judgment of Hon’ble
Supreme Court in Vishwanath Agrawal Vs. Sarla
Vishwanath Agrawal, reported in (2012) 7 SCC 288, where
it is held that mere allegation of cruelty does not amount to
cruelty and allegation made in the pleading unless they travel
beyond ordinary defense cannot amount to cruelty. Further,
referring to the judgment of the Hon’ble Supreme Court in the
matter of V. Bhagat Vs. D. Bhagat (supra) , the respondent
submits that ordinary allegations and counter-allegations in
matrimonial litigation do not automatically constitute mental
cruelty. On the point of irretrievable breakdown of the
marriage, it has been stated that same is not a ground for grant
of divorce and the Hon’ble Apex Court in exercise of its extra-
ordinary jurisdiction under Article 142 of the Constitution,
exercises such power which cannot be exercised either by the
Trial Court or by this Court.
22. Referring to a judgment of the Hon’ble Supreme Court in
th
Dr. Anita Vs. Indresh Gopal Kohli, decided on 14
November 2025 , it has been mentioned that the Hon’ble
Supreme Court has held that irretrievable breakdown of
marriage is not an independent statutory ground for divorce
under the Hindu Marriage Act. Before granting relief, the Court
16 F.A. No.109 of 2011

must determine which spouse is responsible for the breakdown
of the matrimonial relationship. A spouse who is responsible
for the separation cannot claim equitable relief. Thus, it is
stated that the impugned judgment and decree do not warrant
any interference and the prayer is made to dismiss the appeal.
FINDINGS
23. Having heard the rival contentions raised by the parties,
the following points for determination falls for our
consideration: -
(i) Whether the appellant had made out a case of cruelty
so as to entitle her to a decree of divorce under
Section 13 (1) (i-a) of the Hindu Marriage Act?
(ii) Whether the appellant was entitled to a decree of
divorce on the ground of desertion?
24. Certain facts in the present case which are not in
dispute are hereinunder: -
The marriage between the parties, solemnised in the year
2002, is admitted, and it is also admitted that their son
was born out of wedlock. As of now, the parties are living
separately, and the possibility of the restoration of
conjugal life between the parties does not exist. It is not in
dispute that the appellant is also a working woman, and
the respondent is a practicing Advocate in Delhi. It is also
17 F.A. No.109 of 2011

not in dispute that, to date, the respondent has not paid
any amount for the upbringing or maintenance of his son,
who has now become a major.
25. With the above facts in the background, the zone of contest
is whether the present respondent inflicted cruelty on the
appellant, sufficient to entitle her to a decree of divorce. In her
application for dissolution of marriage, the appellant has
pleaded that she was subjected to physical and mental cruelty.
The respondent used to abuse her, and a demand for dowry
was made. On non-fulfilment of that demand, she was ousted
from her matrimonial house. The respondent, while defending
his case, has stated that the allegation of a demand for dowry
is false and that no such demand was ever made. It is stated
that the respondent, immediately after the marriage,
particularly after the birth of a son and when she was
undergoing training for employment, had no inclination to
continue the marital life, suppressed the factum of marriage
with the present respondent, both on record and by her
conduct, and that counter-allegations are that the appellant
and her family members made a demand for Rupees Ten
Lakhs and, as the same was not given, they were being
threatened, for which a complaint was filed at Govindpur Police
Station, District Jamshedpur. The respondent has also stated
in his written statement that his wife, i.e., the present appellant,
18 F.A. No.109 of 2011

used to accompany some other person while she was
undergoing training with Tata AIG Insurance Company Limited.
Such an allegation, though not mentioned specifically, has an
imputation on the character and chastity of the present
appellant.
26. Learned counsel appearing on behalf of the appellant has
strongly argued that the allegation of dowry was supported by
the appellant’s evidence and by her parents, examined as
P.W.2 and P.W.5. The inability to mention the date when this
demand of dowry was made does not falsify the statement that
such a demand was made. More so, when it is corroborated by
the statements of the respondent’s witnesses, i.e., the
respondent’s brother and other family members, who say that
the respondent was in dire need of money for the purpose of
having his own chamber in Delhi. These interlinked aspects of
the case were not considered by the learned Trial Judge, and
we are of the considered view that the standard of proof in civil
suits, including matrimonial cases, is different from that in
criminal cases. In matrimonial cases, the standard of proof is
not beyond shadow of doubt; rather, it is based on the
principles of preponderance of probabilities, i.e., whether a
sufficient case is made out to establish the claim of the party .
In this case, there are consistent statements by the appellant
19 F.A. No.109 of 2011

and her parents about the demand for dowry; however, they
have failed to disclose the date when the demand was made.
27. We are of the considered view that inability to disclose the
date was not fatal to the allegations of demand of dowry and at
least, prima facie , cruelty on the ground of demand of dowry
was established.
28. Further, the appellant, in her pleading, has stated that the
respondent committed both physical and mental cruelty
through verbal abuse. P.W.1, P.W.2 and P.W.5 have
corroborated this, stating that the respondent used to verbally
abuse them in public view, including on occasions when guests
were present in the house. For this reason, the respondent
was not invited to attend social functions in the house. The
learned Trial Judge considered only a part of the statement,
namely that the respondent was not invited to attend the social
functions, and failed to appreciate that the reason for non-
invitation was the disturbance/nuisance created by the
respondent by abusing the appellant and her family members
in the presence of guests and in public view, which was very
insulting and lowered the dignity of the appellant and her family
members. To avoid a repetition of the same, such invitation
was not given to the respondent, which prima facie appears to
be justified. Such allegation also establishes the case of the
appellant that she was subjected to verbal abuse. Two
20 F.A. No.109 of 2011

independent witnesses examined by the appellant as P.W.3
and P.W.4, one of whom is a neighbour, have stated that they
witnessed the respondent abusing the appellant in public view.
It is not a minor domestic quarrel or normal wear and tear in
family life; rather, such abuse affects the dignity of a woman,
which cannot be compromised merely because she is the
legally wedded wife of the person who is abusing her. The
dignity of the wife has to be respected, and when such dignity
is compromised, it is undoubtedly a case of proven cruelty
against the wife, who need not come before the Court to say
the actual words used by her husband to abuse her . P.W.4,
who happens to be a colleague, has also corroborated the
allegation of cruelty against the wife, stating that frequent calls
were made to the respondent during office working hours,
leading to disturbance in the discharge of official duties. When
such calls were not picked up, calls to other office members
were made, including the witness, and on refusal to hand over
the phone to the appellant, he was also abused using filthy
words. Such acts on behalf of the respondent, under no
circumstances, can be condoned or considered not to be acts
of cruelty; rather, they are aggravated acts of cruelty.
29. To crown the above facts is the conduct of the respondent.
While cross-examining the witness on behalf of the appellant,
particularly P.W.4, the respondent suggested that, because he
21 F.A. No.109 of 2011

was a bachelor, he was supporting the appellant with ill motive,
which in fact was an imputation on the character and chastity
of the appellant. The respondent has also stated in his
pleading that the appellant had disclosed to the Registration
Authority the birth of a second child, which is a direct allegation
on the character and chastity of a woman in this case, the
present appellant.
30. In view of the law laid down by the Hon’ble Apex Court as
discussed above, we are of the considered view that such
allegation definitely amounts to mental cruelty on the woman,
which aspect of the case was not considered by the learned
Trial Judge.
31. We are, therefore, of the considered view that the point for
determination formulated by us with regard to the cruelty
having been meted out by the respondent to the appellant was
proved, and that the same is decided in favour of the present
appellant and against the respondent.
32. Coming to the second point for determination with regard to
desertion, this Court is of the considered view that the
evidence on the point of desertion is variable. The appellant
claims to have been deserted by her husband, i.e., the
respondent, while the respondent claims that the appellant was
residing separately from him. No effort appears to have been
made by either of the parties for restitution of conjugal rights.
22 F.A. No.109 of 2011

The decree for restitution of conjugal rights is stated to have
been obtained by the respondent, but there is nothing on
record to show that the decree was put to execution. Efforts at
restoration have also failed, even before this Court, as appears
from the various orders of the Coordinate Benches of this
Court. However, even in the present respondent’s defence, it
has been categorically stated that he intends to restore
conjugal life. The fact that the parties have been living
separately for a long time may not be in dispute, but the
second element to establish the case of desertion is the
animus deserendi , i.e., the intention not to cohabit, which must
be considered. In the present case, the respondent has been
urging that he intends to restore conjugal life, which proves
that the intention to desert the appellant by the respondent is
lacking. We are, therefore, of the considered view that the
ingredients to make out a case under Section 13(1) (i-b) of the
Hindu Marriage Act were not present, and the learned Trial
Judge has not committed any error in holding that the appellant
failed to prove a case of desertion by the respondent.
33. Case laws referred by the learned counsel for the appellant
that in cases of irretrievable breakdown of marriage allowing
the martial ties to continue as law does not permit it to be
broken, amounts to mental and psychological distress on the
wife and also comes within the definition of mental cruelty is
23 F.A. No.109 of 2011

beyond the ambit and scope for consideration by us as
irretrievable breakdown of marriage is not a statutory ground
for divorce and such jurisdiction can be exercised only by the
Hon’ble Apex Court. However, as we have already discussed
that there exists sufficient evidence of cruelty by the
respondent on the appellant, sufficient to establish a case
under Section 13(1) (i-a) of the Hindu Marriage Act. Therefore,
the impugned judgment and decree passed by the learned
Trial Court, dismissing the application of the appellant for
dissolution of marriage, is set aside.
34. The marriage between the parties stands dissolved by a
decree of divorce on the ground of cruelty in terms of Section
13(1) (i-a) of the Hindu Marriage Act.
35. The appeal is, therefore, allowed without costs.
36. Pending I.As, if any, do not survive and stand disposed of.

(M. S. Sonak, C.J.)



(Manoj Prasad, J.)


th
November, 5 , 2026

BS/-
A.F.R.
24 F.A. No.109 of 2011